Citation Nr: 0814763 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 05-11 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to benefits under 38 U.S.C.A. § 1805 for spina bifida. 2. Entitlement to benefits under 38 U.S.C.A. § 1815 for birth defects. ATTORNEY FOR THE BOARD Motrya Mac, Associate Counsel INTRODUCTION The appellant's status as a claimant is derived from her assertion that her father served in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in October 2004, of the Denver Colorado, Department of Veterans Affairs (VA) Regional Office (RO). In April 2008, the appellant did not appear at a hearing before the Board. FINDINGS OF FACT 1. Without deciding who is the appellant's father, there is no competent evidence that the appellant has spina bifida. 2. There is no competent evidence that the appellant's mother was a Vietnam veteran. CONCLUSIONS OF LAW 1. The criteria for benefits under 38 U.S.C.A. § 1805 for spina bifida as the child of a Vietnam veteran have not been met. 38 U.S.C.A. § 1805 (West 2002 & Supp. 2007); 38 C.F.R. § 3.814 (2007). 2. The claim for entitlement to benefits under 38 U.S.C.A. § 1815 for a child born with birth defects is without legal merit. 38 U.S.C.A. § 1815 (West 2002 & Supp. 2007); 38 C.F.R. § 3.815 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and implemented in part at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claims, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in her possession that pertains to the claims. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided post adjudication VCAA notice by letters, dated in June 2005 and March 2007. The appellant was notified of the evidence needed to substantiate the claims, namely evidence that she has spina bifida and her father or mother served in Vietnam, and evidence that she has birth defects and her mother served in Vietnam. The appellant was notified that VA would obtain service records, VA records, and records of other Federal agencies and that she could submit private medical records. The appellant was asked to submit any evidence that would include that in her possession. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim, except for the degree of disability assignable and effective date of the claims). As the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice, the claims were readjudicated as evidenced by the supplemental statement of the case, dated in June 2007. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) To the extent that VCAA notice pertaining to degree of disability and effective date were not provided as the claims are denied, no disability rating or effective date can be assigned as a matter of law and therefore there is no possibility of any prejudice. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims. In March 2007, the RO asked to the appellant to submit a copy of her birth certificate to establish the identity of her father, but she did not respond. The duty to assist is not a one-way street. If a claimant wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the appellant has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Benefits under 38 U.S.C.A. § 1805 for a Child Born with Spina Bifida VA shall pay a monthly allowance, based upon the level of disability, to or for a child who has been determined to be suffering from spina bifida and who is a child of a Vietnam veteran. 38 U.S.C.A. § 1805(a); 38 C.F.R. § 3.814(a). "Spina bifida" means any form and manifestation of spina bifida except spina bifida occulta. 38 U.S.C.A. § 1802; 38 C.F.R. § 3.814(c)(3). Spina bifida is the only birth defect that warrants the award of monetary benefits based on the herbicide exposure of the veteran as a father of that child. Jones v. Principi, 16 Vet. App. 219 (2002). In the precedent opinion VAOPGCPREC 5-99 (May 3, 1999), VA's General Counsel held that 38 U.S.C.A. § 1802 applies to all forms of spina bifida other than spina bifida occulta, and that for purposes of that chapter the term "spina bifida" refers to a defective closure of the bony encasement of the spinal cord but does not include other neural tube defects such as encephalocele and anencephaly. The term "Vietnam veteran" means a person who performed active military service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, to include service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.814(c)(1). The appellant asserts that her father, A.B., served in Vietnam. A copy of A.B.'s DD-214 shows he served in Vietnam during the designated time period. However, it cannot be determined from the copy of the appellant's birth certificate as that portion of the birth certificate is illegible, that A.B. is her father. In March 2007, the RO asked to the appellant to submit a copy of her birth certificate to establish the identity of her father, but she did not respond. Whether or not A.B. is her father, the record fails to establish that the appellant was born with spina bifida. To the extent that the appellant claims benefits based on the presence of spina bifida, spina bifida is not a condition under case law, where lay observation has been found to be competent and the determination as to the presence of the disability is medical in nature, that is, not capable of lay observation. Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether a chronic condition exists, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). To the extent that the appellant is expressing an opinion that involves a question of medical diagnosis that is medical in nature and not capable of lay observation, competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. For these reasons, the Board rejects the appellant's statements as competent evidence sufficient to establish the presence of spina bifida. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Without competent medical evidence that the appellant has spina bifida, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Board may consider only competent medical evidence to support its finding on a question of a medical diagnosis, not capable of lay observation, and as there is no competent medical evidence of spina bifida, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Benefits under 38 U.S.C.A. § 1815 for a Child Born with Birth Defects VA law provides that a monetary allowance may be paid for certain birth defects if the veteran who served in the Republic of Vietnam during the Vietnam era is the mother of the natural child at issue. 38 U.S.C.A. § 1815; 38 C.F.R. § 3.815 (2007). In this case, the pertinent facts are not in dispute. The appellant does not allege and it is not shown that her mother served in Vietnam. There is no basis in VA law for payment involving birth defects unless the appellant's mother served in Vietnam, which is not established. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b). ORDER Benefits under 38 U.S.C.A. § 1805 are denied. Benefits under 38 U.S.C.A. § 1815 are denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs