Citation Nr: 1318745 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-35 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Eligibility for benefits under 38 U.S.C.A. Chapter 18 as a child born with spina bifida. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The appellant is the daughter of a veteran (Veteran). The Veteran had active service from March 1967 to January 1970. He served in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Denver, Colorado, Regional Office which denied the appellant's entitlement to benefits under 38 U.S.C.A. § 1805 as a child born with spina bifida. In October 2009, the Denver, Colorado, Regional Office denied the appellant's eligibility to benefits under 38 U.S.C.A. Chapter 18 as a child born with birth defects. She was informed in writing of the adverse decision and her appellate rights. The appellant did not submit a timely notice of disagreement (NOD) with the decision. Therefore, the issue of the appellant's eligibility to benefits under 38 U.S.C.A. Chapter 18 as a child born with birth defects is not on appeal and will not be addressed below. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam from July 1968 to July 1969. 2. The appellant does not have spina bifida. CONCLUSION OF LAW Eligibility to benefits under 38 U.S.C.A. Chapter 18 as a child born with spina bifida is not established. 38 U.S.C.A. §§ 1802, 1805 (West 2002 & Supp. 2012); 38 C.F.R. § 3.814 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In Pelegrini v. Principi, 18 Vet. App. 112(2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must inform the claimant about (1) the information and evidence not of record that is necessary to substantiate the claim; (2) the information and evidence that VA will seek to provide; and (3) the information and evidence the claimant is expected to provide. The Court has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In reference to the issue of the issue of entitlement to benefits under 38 U.S.C.A. § 1805 as a child born with spina bifida, the facts are not in dispute. Resolution of the appellant's appeal is dependent on interpretation of the law and regulations pertaining to VA benefits. As will be shown below, the appellant does not have spina bifida. Therefore, as no reasonable possibility exists that would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). In any event, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in September 2007 wherein the appellant was advised of the evidence that was needed to substantiate the claim as well as hers and VA's respective responsibilities for obtaining the requisite evidence. II. Benefits Under 38 U.S.C.A. Chapter 18 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 both (1) a child of a Vietnam veteran and (2) suffering from spina bifida. 38 U.S.C.A. § 1805(a); 38 C.F.R. § 3.814(a). The term "spina bifida" denotes any form and manifestation of spina bifida except for 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 a veteran as a father of that child. Jones v. Principi, 16 Vet. App. 219 (2002). In a precedent opinion dated May 3, 1999, the General Counsel of VA concluded that 38 U.S.C.A. § 1802 applies to all forms of spina bifida other than spina bifida occulta. 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. VAOPGCPREC 5-99 (May 3, 1999). The term "Vietnam veteran" denotes 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's July 1987 birth certificate indicates that the Veteran is her father. The National Personnel Record Center (NPRC) has verified that the Veteran served in the Republic of Vietnam from July 1968 to July 1969. Therefore, the appellant is a child of a Vietnam veteran. An October 1987 hospital discharge summary from University hospital indicates that the appellant was diagnosed with hydrocephalus and was "otherwise healthy." A February 2006 physical evaluation from R. Kuljis, M.D., advanced impressions of attention deficit disorder with hyperactivity; history of shunt placement for obstructive hydrocephalus; and history of migraine headaches. The physician made no reference to spina bifida. In her February 2008 Application for Benefits for Certain Children with Disabilities Born of Vietnam and Korea Service Veterans (VA Form 21-0304), the appellant indicated that she was claiming benefits for "hydrocephalus and A.D.D." The October 2008 NOD signed by both the appellant and the Veteran advances that the appellant "was born with the medical condition of spina bifida and related conditions." An October 2008 neurological evaluation from J. Schwartzbard, M.D., notes the appellant's history of hydrocephalus with VP shunt placement and no sequelae and attention deficit disorder. The physician made no reference to spina bifida. In her undated Appeal to the Board (VA Form 9), the appellant clarified that: I think that my dad put on my original claim was that I had spina bifida. I[t] should have been a diagnosis of hydrocephalus associated with spina bifida. Please correct this mistake. The record does not demonstrate that the appellant currently has spina bifida, or that she was born with spina bifida. The appellant has submitted private medical records in support of her claim, which show that she has a history of hydrocephalus. The medical records do not establish that the appellant has spina bifida. There is no diagnosis of spina bifida in the records. The appellant has asserted that she has or had spina bifida and indicated that she had a diagnosis of hydrocephalus associated with spina bifida. In this case, the Board has considered the lay contentions of the appellant. To the extent that she claims she has spina bifida, this case involves a complex medical issue requiring medical expertise on the question of a diagnosis of spina bifida. The appellant has not demonstrated any such expertise and her contentions are not competent medical evidence of the diagnosis at issue on appeal. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As there is no qualifying disability, there can be no entitlement to benefits. Accordingly, the benefits sought on appeal are denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). (CONTINUED ON NEXT PAGE) ORDER Eligibility to benefits under 38 U.S.C.A. Chapter 18 for a child born with spina bifida is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs