Citation Nr: 1306253 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-42 166A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to benefits for a child born with spina bifida. 2. Entitlement to benefits for a child born with birth defects. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from December 1969 to December 1971, which included service in the Republic of Vietnam. The appellant is the Veteran's daughter. This matter comes to the Board of Veterans' Appeals (Board) from March 2007 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In October 2012, the appellant testified from the Nashville, Tennessee RO at a Board videoconference hearing before the undersigned. The transcript is of record. FINDINGS OF FACT 1. At the October 24, 2012 Board hearing, the appellant withdrew the issue of entitlement to benefits for a child born with spina bifida. 2. The appellant's mother did not serve on active duty with service in, or visitation to, the Republic of Vietnam. 3. The appellant did not reside at Camp Lejeune for 30 days or while she was in utero during the period from 1957 to 1987. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant with the regard to the issue of entitlement to benefits for a child born with spina bifida have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The appellant has no legal entitlement to benefits for a child born with birth defects. 38 U.S.C.A. §§ 1815, 5107 (West 2002); Pub.L. 112-154, Title I, § 102(b)(1), Aug. 6, 2012, 126 Stat. 1168 (to be codified at 38 U.S.C.A. § 1787(a)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by her authorized representative on the record at a Board hearing. 38 C.F.R. § 20.204. In the present case, at the Board hearing the appellant withdrew the appeal with regard to the issue of entitlement to benefits under 38 U.S.C.A. § 1805 for a child born with spina bifida and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and entitlement to benefits under 38 U.S.C.A. § 1805 for a child born with spina bifida is dismissed. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) redefined VA's duty to assist claimants in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). This is such a case. As discussed below, resolution of the appellant's claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to benefits pursuant to § 1815 The record shows that the appellant was born in 1977; the Veteran is her father. Recently submitted records show that in October 1992, the appellant was reported to have been born in a breach position only weighing 4 pounds. It was indicated that her mother had smoked one pack of cigarettes a day and had hypertension during pregnancy. A current EMG showed myopathic changes. She was subsequently found to have Limb-Girdle muscular dystrophy, mitral valve prolapsed, scoliosis, hypoglycemia, perennial anemia, and suffer from seizures. The appellant contends that she has birth defects attributable to the Veteran's exposure to herbicides during active military service and due to volatile organic compounds and drinking water at Camp Lejeune. The Veteran had 11 months and 8 days of service in the Republic of Vietnam. Service personnel records reflect that the Veteran had active service at Camp Lejeune from September to December 1971. The appellant has no family history for her type of developmental abnormalities. VA shall pay a monthly allowance, based upon the level of disability, to or on behalf of a child of a Vietnam veteran who has spina bifida and other birth defects, to include (but not limited to) achondroplasia, cleft lip and cleft palate, congenital heart disease, congenital talipes equinovarus (clubfoot), esophageal and intestinal atresia, Hallerman-Streiff syndrome, hip dysplasia, Hirschprung's disease (congenital megacolon), hydrocephalus due to aqueductal stenosis, hypospadias, imperforate anus, neural tube defects, Poland syndrome, pyloric stenosis, syndactyly (fused digits), tracheoesophageal fistula, undescended testicles, and Williams syndrome, that are associated with the veteran's exposure to toxic herbicides. 38 U.S.C.A. §§ 1805(a), 1812, 1815; 38 C.F.R. §§ 3.814(a), 3.815. Of the above disorders, 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. 38 U.S.C.A. §§ 1803-05. To qualify for a monthly allowance on the basis of other birth defects, the claimant must show that the Vietnam veteran who was exposed to herbicides is the mother of the child. 38 U.S.C.A. §§ 1812, 1815; 38 C.F.R. § 3.815. The appellant does not contend, and the evidence does not show, that her mother served in Vietnam, or otherwise visited Vietnam during any period of military service. Rather, the appellant seeks VA monetary benefits through her father's Vietnam service. Unfortunately, to be eligible for a "covered birth defect" other than spina bifida pursuant to 38 U.S.C.A. § 1815 and 38 C.F.R. § 3.815, the appellant's mother must have set foot in Vietnam during a period of service. With regard to the appellant's assertions that she has birth defects due to the Veteran's exposure to volatile organic compounds and drinking water at Camp Lejeune, the provisions of 38 U.S.C.A. § 1815 and 38 C.F.R. § 3.815 do not provide for compensation to the child of a Veteran on the basis of such exposures. There are no other statutes or VA regulations that would allow VA to award her benefits based on the Veteran's exposures while stationed at Camp Lejeune. See 38 U.S.C.A. § 1805(a); 38 C.F.R. § 3.814(a). The Board is without authority to grant benefits to a claimant unless authorized by law. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Recently enacted legislation does provide that a family member of a veteran who served on active duty in the Armed Forces at Camp Lejeune, North Carolina, for not fewer than 30 days during the period during the period beginning on January 1, 1957, and ending on December 31, 1987, and who resided at Camp Lejeune, North Carolina, for not fewer than 30 days during the period during the period beginning on January 1, 1957, and ending on December 31, 1987, or who was in utero during such period while the mother of such family member resided at such location shall be eligible for hospital care and medical services furnished by the Secretary for illnesses or conditions, notwithstanding that there is insufficient medical evidence to conclude that such illnesses or conditions are attributable to such residence. Pub.L. 112-154, Title I, § 102(b)(1), Aug. 6, 2012, 126 Stat. 1168 (to be codified at 38 U.S.C.A. § 1787(a)). Although the Veteran may have had qualifying service at Camp Lejeune, the appellant was born approximately six year after the Veteran's service and could not have resided at Camp Lejeune or been in utero during that period. Hence, she would have no legal entitlement to benefits on the basis of this service. The Board also notes that its consideration of this legislation in the first instance does not prejudice the appellant, because her representative presented argument on this matter, and she had an opportunity for a hearing and to present evidence. She thus had a meaningful opportunity to participate in the adjudication of the claim on this basis. Shinseki v. Sanders, 556 U.S. 396, 410 (2009); Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (notice errors that render a claimant without a "meaningful opportunity to participate effectively in the processing of his or her claim" are prejudicial). Ultimately, the Board must find that the appellant is precluded from obtaining benefits for birth defects under 38 U.S.C.A. § 1815 or any other statute. The claim consequently must be denied due to her lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). (CONTINUED ON NEXT PAGE) ORDER Entitlement to benefits for a child born with spina bifida is dismissed. Entitlement to benefits for a child born with birth defects is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs