Citation Nr: 1320396 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-39 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to benefits under 38 U.S.C.A. § 1815 for a child born with birth defects. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL The appellant and the Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The appellant is not a Veteran. The Veteran in this case is the biological father of the appellant. The Veteran had active service from September 1966 to June 1970, with additional unverified reserve service. The Veteran had service in the Republic of Vietnam and is the recipient of the Purple Heart, Combat Action Ribbon, and the Bronze Star with "V" device. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to benefits under 38 U.S.C.A. § 1815 for a child born with birth defects. The RO in Houston, Texas, has jurisdiction of the claims file. In April 2012, the appellant and the Veteran testified before the undersigned Veterans Law Judge (VLJ), seated at the RO in Waco, Texas. A transcript of the hearing has been associated with the claims file. At that time, the VLJ agreed to hold the record open for 30 days to allow the appellant an opportunity to supplement the record with additional evidence in support of his claim. To date, no such evidence has been received. A review of the Virtual VA electronic storage system does not reveal any documents pertinent to the claim on appeal. FINDINGS OF FACT 1. There remains no question of fact pertinent to a resolution of this appeal. 2. The biological father of the appellant reported for duty in Vietnam in 1968; however, the appellant's biological mother was not a service member and is thus not a Vietnam Veteran. 3. The appellant has facioscapulohumeral dystrophy (FSH), and does not have spina bifida or any other disability resulting therefrom. CONCLUSION OF LAW 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. §§ 503, 1802, 1805, 1812, 1815, 7104 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.814, 3.815 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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). As discussed below, the facts are not in dispute; instead, resolution of the appeal is wholly dependent on interpretation of the applicable laws and regulations pertaining to benefits under 38 U.S.C.A. Chapter 18. For this reason, the VCAA, including consideration of whether the Board hearing was conducted properly pursuant to Bryant v. Shinseki, 23 Vet. App. 488 (2010) and 38 C.F.R. § 3.103(c)(2) (2012), is inapplicable 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. Benefits under 38 U.S.C.A. § 1815 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. §§ 1802, 1805(a), 1812, 1815; 38 C.F.R. §§ 3.814(a), 3.815. Significantly, 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. Within the meaning of this law, 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). In this case, the pertinent facts at issue are not in dispute. The appellant asserts entitlement to benefits pursuant to 38 U.S.C.A. § 1815 based upon his father's Vietnam service. The Veteran's service personnel records indicate that he reported for duty in November 1968 in Vietnam. At the time of his April 2012 Board hearing, the appellant asserted that his father's presumed exposure to herbicides during service in Vietnam led to his birth defect, which was diagnosed in June 1990 as FSH. It is not argued or suggested that such disorder is a form or manifestation of spina bifida. The appellant does not allege, and it is not shown, that his mother is a Veteran who served in Vietnam. The appellant instead alleges that 38 U.S.C.A. § 1815 is discriminatory, and thus unconstitutional; based on its application to only one parent, the mother. Congress has decreed that "[t]he Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans." 38 U.S.C.A. § 511(a) (West 2002). There are, however, limitations to this Congressional mandate. In Johnson v. Robison, the United States Supreme Court noted the principle that adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies. 415 U.S. 361, 368 (1974) (citations omitted). The Veterans Court has also acknowledged this principle on a number of occasions. See Saunders v. Brown, 4 Vet. App. 320, 326 (1993) (citing Johnson) ("[i]t has generally been thought that the adjudication of the constitutionality of congressional enactments is 'beyond the jurisdiction of administrative agencies,' including the BVA"); see also Giantcaterino v. Brown, 7 Vet. App. 555, 557 (1995) (stating that the Board may express an opinion on a constitutional claim but it is not required to do so). The Veterans Court has noted that administrative agencies are entitled to pass on constitutional claims, but are not required to do so. Id. (citing Plaquemines Port v. Federal Maritime Comm'n, 838 F.3d 536, 544 (D.C. Cir. 1988)). The critical role for the administrative agency is to ensure that the necessary factual development has been undertaken to help the court resolve the constitutional issue. See id. In the instant case, as discussed, there are no factual matters in dispute. Rather, the sole issue is a legal issue. In this regard, the Board declines to express an opinion on the question raised regarding the constitutionality of 38 U.S.C.A. § 1815, which provides benefits based on a mother's and not a father's Vietnam service. The Board recognizes that such constitutional challenges must first be made at the agency level to build a factual record or to resolve the dispute on other grounds. Ledford v. West, 136 F.3d 776 (Fed. Cir. 1998). As set forth in this decision, the facts have been presented, and they are not in dispute. Although the Board has the ability to express an opinion on a constitutional claim, the Board has no jurisdiction to remedy a constitutional challenge of a law that is binding on the Board. Such challenge is more appropriate for the Veterans Court, which possesses the necessary jurisdiction for constitutional questions. See 38 U.S.C.A. § 7261(a)(1), (a)(3)(B) (West 2002). Therefore, the Board presumes the constitutionality of the statute in question and will proceed accordingly. The Board notes that the basis for 38 U.S.C.A. §§ 1802 and 1805 (monetary allowance for an individual with spina bifida whose biological father or mother was a Vietnam Veteran) stems from research conducted by the Institute of Medicine (IOM) of the National Academy of Sciences (NAS) called "Veterans and Agent Orange: Update 1996," which was intended to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam era, and each disease suspected to be associated with such exposure. See 62 Fed. Reg. 23724-01 (May 1, 1997). This study found "limited/suggestive evidence of an association" between herbicide exposure and spina bifida in the offspring of Vietnam Veterans. In light of this finding, VA sought Congressional approval for an appropriate statutory remedy. Id. This was provided with the enactment of 38 U.S.C.A. §§ 1802 and 1805. Id. The genesis behind 38 U.S.C.A. § 1815, which authorizes VA to provide a monetary allowance for an individual with disability resulting from one or more covered birth defects who is a child of a woman Vietnam Veteran, was based on the results of a comprehensive 1998 study by the Environmental Epidemiology Service of the Veterans Health Administration of the Department of Veterans Affairs entitled "Women Vietnam Veterans Reproductive Outcomes Health Study." See 67 Fed. Reg. 200-01 (Jan. 2, 2002). This study was mandated by Public Law 99-272. Id. The benefits provided in Chapter 18 are authorized by Congress, and not VA. The Board cannot provide a satisfactory answer to the Veteran why Congress has made its particular distinctions other than it relies on findings and research from experts such as the IOM and VA, which presumably have found no statistical association between a birth defect such as FSH and a biological father who served in Vietnam during the Vietnam era. The Board notes that "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)). The Board finds no legal authority authorizing the award of the benefits being sought, and has no authority to grant benefits to a claimant that has no basis under statutory law. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Therefore, as a matter of law, the Board must find that the appellant is precluded from obtaining benefits under 38 U.S.C.A. § 1815 for his birth defect. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The claim of entitlement to benefits under 38 U.S.C.A. § 1815 for a child born with birth defects, being without legal merit, is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs