Citation Nr: 1305982 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-42 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to benefits under 38 U.S.C.A. Chapter 18 for a disability due to spina bifida. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant reports that she is the adult child of a Veteran with Vietnam service. VA has been unable to verify the service of her father. This matter comes to the Board of Veterans' Appeals (Board) from a June 2012 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. FINDINGS OF FACT 1. The appellant's father is not shown to have had active military service in the Republic of Vietnam. 2. The appellant has not presented medical evidence showing that she has been diagnosed with spina bifida. CONCLUSION OF LAW There is no legal entitlement to benefits under 38 U.S.C.A. Chapter 18 for a disability due to spina bifida. 38 U.S.C.A. §§ 1802, 1805, 1815, 1821 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.814, 3.815 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION This case is one in which the law is dispositive of the issue. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Under such circumstances, the duties to notify and assist are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002). Further, VA has no duty to assist the appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid her in substantiating her claim. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). In any event, the Board notes that in a letter dated in April 2010, the RO informed the appellant of the provisions of 38 C.F.R. §§ 3.814 and 3.815 which identify the criteria for receiving benefits under 38 U.S.C.A. § Chapter 18. Furthermore, the Veteran has been provided the opportunity to submit evidence and argument in support of her claim and to respond to VA notices. The Board finds that there is sufficient evidence to make a determination in this case, and the appellant is not prejudiced by a decision at this time. Factual Background The appellant claims that she is the adult child of a Veteran that served in the Republic of Vietnam. She claims to have disability due to spina bifida related to her father's Vietnam service. In her April 2010 VA application for benefits as a child with disabilities born to a Vietnam service veteran, the appellant indicated that her father served in Vietnam from 1969 to 1970. In April 2010, the RO requested from the appellant medical evidence showing a diagnosis or treatment for spina bifida at the time of her birth. The RO informed her that verification of her father's Vietnam service had been requested from the service department. She was further informed that she could submit other evidence of service in the Republic of Vietnam including offshore waters. The RO requested that the appellant complete an authorization for release of private medical records identified by the appellant as related to spina bifida. The RO requested verification of service dates in Vietnam from the service department. Dates of service could not be verified. It was indicated that a naval record had been identified but no army record. In May 2010, the appellant reported that all medicals pertaining to her spina bifida at birth and childhood had been destroyed, or the physicians were deceased. In November 2010, the appellant submitted a copy of a DD Form 214 that belonged to her father, which reflects that he served on active duty from April 1966 to April 1969. The form was missing the veteran's service identification number. In January 2011, the RO submitted a request for verification of service in the Republic of Vietnam through the Defense Personnel Records Information Retrieval System (DPRIS). A negative response was received. In a January 2011 letter to the appellant, the RO acknowledged receipt of the DD Form 214 and requested that she provide her father's service number as this was not on the form. The RO notified the appellant that VA needed to verify her father's Republic of Vietnam service. In March 2011, the RO notified the appellant that VA had been unable to verify her father service in the Republic of Vietnam and that his army service number and service records were unavailable for review. The appellant responded that she did not have her father's service number because all his records were destroyed in a fire in 1973 at the National Personnel Records Center (NPRC) and because her father cannot remember his number because he has had two strokes. In May 2011, in response to the RO's request for dates of Vietnam service that included the name and service dates as shown on DD Form 214, the NPRC notified the RO that "We cannot identify a record for this veteran without the service number." The RO notified the appellant in a June 2011 letter that the copy of the DD Form 214 submitted was unreadable and that VA could not verify the her father's service. The RO requested certified copies of her father's discharge papers for the period of service from April 11, 1966, to April 10, 1969, and the original or a certified copy of the DD Form 214. Also, the RO informed the appellant that, while there was a fire in 1973 at the National Archives and Records Administration, the "periods of service and the branch of service your father served in do not fall within the categories established by the National Archives and Records Administration." In October 2012, the appellant submitted various news clipping regarding illness due to exposure to Agent Orange by persons that worked at storage facilities and/or repaired helicopters that were exposed to herbicide agents in Vietnam. She wrote on the back of an article that her father worked cleaning helicopters that had been exposed to Agent Orange while serving in the reserves and now they were both sick. Analysis VA benefits are awarded to an appellant who is a child of a Vietnam veteran or a veteran with covered Korean service and who suffers from spina bifida. 38 U.S.C.A. § 1805(a) (West 2002); 38 C.F.R. § 3.814(a) (2012). 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)(4). A "Vietnam veteran" is a veteran who performed active military service in the Republic of Vietnam any time from January 9, 1962, to May 7, 1975, without regard to the characterization of that service. Service in the Republic of Vietnam includes 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). A veteran has "covered service in Korea" if the veteran performed active military service in or near the Korean demilitarized zone (DMZ) between September 1, 1967, and August 31, 1971, and was exposed to an herbicide agent during such service. Exposure to an herbicide agent is conceded if the veteran served between April 1, 1968, and August 31, 1971, in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.814(c)(2). Significantly, spina bifida is the only birth defect which warrants an award of monetary benefits based on the herbicide exposure of a Vietnam veteran who is the father of the child at issue. Jones v. Principi, 16 Vet. App. 219 (2002). Here, the appellant has not submitted competent evidence that she current has spina bifida or was born with such disability. Nevertheless, even assuming that she had been diagnosed with such disability, the evidence of record does not show that the appellant's father had service in the Republic of Vietnam despite various attempts to verify such service. Therefore, as a matter of law, with evidence of qualifying service from her father, the Board must find that the appellant is precluded from obtaining benefits under Chapter 18 of Title 38 as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). In this case, the record does not reflect military service in the Republic of Vietnam. ORDER Entitlement to benefits under 38 U.S.C.A. Chapter 18 for a disability due to spina bifida is denied as a matter of law. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs