We recently received a letter from a lady named who was unfortunately born with spina bifida and trying to get VA dependent benefits. She was born in 1985 in a rural town where the hospital didn’t have a lot of resources at the time. Because of this, she was not diagnosed for her birth defect until a year or two after her birth.
She has recently applied for dependent VA benefits for spina bifida and has been denied by the VA. To uncover what’s happening here, let’s start with the basics. The VA does provide monthly allowances to individuals who suffer from birth defects as a result of their parents exposure to certain toxins while in service.
Specifically, as it relates to this case, the VA provides dependent benefits for spina bifida caused by agent orange exposure to one or both of the biological parents while serving in Vietnam. This lady’s dad served in Vietnam and was exposed to agent orange during his service.
Defining a “Vietnam Veteran”
The term “Vietnam Veteran” is used to define a person who performed active military service in Vietnam from January 1962 to May 1975. It doesn’t matter what your duties were while serving — you could have been a cook over there. But if you were there serving during those dates, you are considered a Vietnam Veteran.
We’ve all heard about the devastating effects of agent orange exposure for Vietnam Veterans. Many of them have developed various forms of cancer and other diseases as a result of this toxic exposure. It has recently been discovered that agent orange can also cause birth defects in the children of exposed Veterans. It somehow modifies the DNA of the exposed person and is known to cause spina bifida in some cases.
Spina Bifida Cases with the VA
I should mention that spina bifida is currently the only birth defect for which the VA will provide benefits as it relates to agent orange exposure. To qualify, you must have a diagnosis of spina bifida and one of your parents must have served in Vietnam during the above mentioned dates. You must have been conceived after the agent orange exposure in Vietnam. If your child was conceived prior to service in Vietnam, you will not receive benefits for any birth defects the child has.
The problem in this case is that her medical records do not show a diagnosis of spina bifida at birth. There are several forms of spina bifida, including the Chiari malformation type that this lady has. There is a Chiari malformation type 1 and type 2. She has type 2, which is said to be more severe.
VA Claims Assistance Act of 2000
Under the VA Claims Assistance Act of 2000, the VA has a duty to adequately assist someone with a claim. But for them to do that, they have to be presented with the right information to justify their assistance. We frequently use a criteria called the McLendon Elements to determine if the VA is required to assist you with a medical examination for claims purposes.
1. The first element is that there must be competent evidence of a diagnosis or condition. This lady has all the symptoms of spina bifida, so she would meet this requirement.
2. The second element establishes that the diagnosis applies to a presumptive period. Since her father served in Vietnam between January 1962 and May 1975, she would meet this requirement.
3. The third element says that the disability must be associated with her parents service. As mentioned above, note that spina bifida is the only birth defect condition recognized by the VA as being connected to agent orange exposure.
4. The fourth element asks if there is sufficient evidence in the file for the VA to make a decision. The VA likely denied the initial claim because there was no birth diagnosis of spina bifida. We have to present them with some form of medical evidence to help them realize this is something she has had since birth.
Under the Veterans Claims Assistance Act of 2000, one must meet all those elements in order for the VA to assist with the claims process. I think she has met all four of those elements. We just need to get some expert medical opinion in her file that establishes the fact that spina bifida is a birth defect and something you’ve had since birth. Once we get that diagnosis in her file, the claims process should be pretty easy because we already have the presumption of exposure during those service time periods in Vietnam.
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