Citation Nr: 1125021 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 09-30 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a monetary allowance under 38 United States Code, Section 1805 for a child of a Vietnam Veteran born with spina bifida. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran Veteran's spouse ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1971. The appellant is the Veteran's daughter and seeks benefits under 38 U.S.C.A. § 1805. The evidence of record shows that the appellant is severely mentally retarded and is non-verbal in her communications. This matter comes to the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in pertinent part, denied entitlement to benefits under 38 U.S.C.A. § 1805 for a child born with spina bifida. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a hearing at the RO in April 2010. A transcript of the hearing is of record. In June 2010 the Board remanded the appellant's claim for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002 and Supp. 2010). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era. 2. The Veteran's daughter, who is the claimant in this case, was born in July 1975. She has been diagnosed with mental retardation and encephalocele. 3. The competent evidence of record demonstrates that the appellant does not have any form and/or manifestation of spina bifida. CONCLUSION OF LAW The criteria for a monetary allowance under 38 U.S.C.A. § 1805 for a Vietnam Veteran's child on account of spina bifida have not been met. 38 U.S.C.A. §§ 1802, 1805, 5107 (West 2002 and Supp. 2010); 38 C.F.R. § 3.814 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance The provisions regarding notice and the duty to assist claimants have no effect on an appeal, such as this one, where the law and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534 (2002). Analysis The appellant seeks monetary allowance under 38 United States Code, Section 1805 for a child of a Vietnam Veteran born with spina bifida. At the April 2010 hearing the Veteran testified that, technically, his daughter does not have spina bifida, and that her birth defect was encephalocele. 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 Jones, supra, the United States Court of Appeals for Veterans Claims (Court) addressed the issue of whether a claimant who manifested occipital encephalocele was entitled to benefits under 38 U.S.C.A. § 1805. The Court held that the plain language of 38 U.S.C.A. §1802 did not limit the definition to spina bifida per se but included other "forms and manifestations" of spina bifida except for spina bifida occulta. The Veteran's DD-214 shows that he served in Vietnam during the Vietnam Era, thereby establishing the presumption that he was exposed to an herbicide agent in service. The determinative issue is whether the appellant has spina bifida, including any form or manifestation of spina bifida, except for spina bifida occulta. The appellant's birth certificate indicates that she was born at CG Hospital in July 1975, and the Veteran has noted that CG Hospital is now called SR Hospital. A September 2007 letter from SR Hospital indicates that they do not have medical records for the appellant from 1975, but only from a 1999 visit. A June 1999 social assessment report notes that a social worker reported that the appellant was born at CG Hospital with encephalocele and underwent brain surgery at 2 days of age. She was hospitalized at CG Hospital for 9 days. A December 2003 Community Service Board report notes that the appellant's history of the present illness is mental retardation and encephalocele. A VA examination was conducted in November 2010. The examiner noted a review of the appellant's claim file. The Veteran reported that the appellant was born with part of her brain enclosed in a sack that was protruding from the base of her skull and was diagnosed with encephalocele. She underwent an encephalocele repair at the age of 2 days. The Veteran was also told that encephalocele was in the same family as spina bifida. The examiner opined that although a review of the medical literature reveals that both conditions are types of neural tube defects, it clearly notes that encephalocele is a distinctly different clinical entity than spina bifida due to the location of the deficits and impact on cognitive functioning. Spina bifida lesions involve the vertebral column and most individuals with spina bifida have normal intelligence. Encephalocele is a herniation of the brain through a defect in the skull and patients with severe forms of it can have mental retardation, blindness, and spasticity. Additionally, a physical examination of the appellant revealed that she had a notable occipital cranial scar defect. There is no evidence of myelomeningocele protrusion of the vertebral spine or evidence of residual scar in the spine. Therefore, it is less likely than not that the appellant's encephalocele constitutes any form or manifestation of spina bifida. A December 2004 Community Service Board report notes that the Veteran had a biopsychosocial assessment and that she had "spina bifida/encephalocele" at birth. The Board notes that this social work assessment of the appellant is not from a medical professional and was not offered in the course of medical treatment, but rather for social services. Furthermore, it provides no cogent rationale supporting the conclusion that the appellant had spina bifida at birth. A medical opinion based on speculation, without supporting clinical data or other rationale does not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, this lay statement from the Community Service Board is not competent medical evidence and has no probative value as to the issue of whether the appellant has spina bifida. The competent medical evidence of record clearly indicates that the appellant has no form of spina bifida. Thus, there is no provision under 38 U.S.C.A. § 1805 to allow a grant of the benefit sought on appeal as the statutory and regulatory requirements are shown not to have been met. As there is no legal basis upon which to award a monetary allowance under 38 United States Code, Section 1805 for a child of a Vietnam Veteran born with spina bifida, a monetary allowance is not warranted. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board is very sympathetic to the claimant, the Veteran's argument and the appellant's circumstances. However, the Board is bound to apply the applicable law, which in this case cannot allow the benefit sought. The Board cannot grant benefits based on equity. See 38 U.S.C.A. § 7104. The appellant is free to petition the VA Secretary for equitable relief. ORDER Entitlement to a monetary allowance under 38 United States Code, Section 1805 for a child of a Vietnam Veteran born with spina bifida is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs