Citation Nr: 1323818	
Decision Date: 07/26/13    Archive Date: 08/06/13

DOCKET NO.  09-22 444	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to a monetary allowance under 38 U.S.C.A. § 1815 for disability due to a birth defect (Hirschsprung's disease).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

David A. Brenningmeyer, Counsel



INTRODUCTION

The appellant's biological father served on active duty from October 1965 to September 1967.  He received the Vietnam Service Medal, among other awards and decorations.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  The RO denied the appellant's claim for a monetary allowance for disability due to a birth defect (specifically, Hirschsprung's disease) under 38 U.S.C.A. § 1815.

The Board notes that, in her October 2007 notice of disagreement, the appellant expressed an intent to request a Board hearing in connection with her appeal.  Subsequently, however, in May 2009, when she filed her substantive appeal (VA Form 9, Appeal to Board of Veterans' Appeals), she specifically indicated that she did not wish to have a Board hearing.  Therefore, the Board finds that there is no outstanding request for a Board hearing. 


FINDINGS OF FACT

1.  The appellant is seeking benefits for disability due to Hirschsprung's disease; she does not allege, and the evidence does not in any way suggest, that she has spina bifida.

2.  The appellant has indicated that her biological mother is (or was) not a Vietnam veteran and there is nothing of record to suggest otherwise.



CONCLUSION OF LAW

As the criteria for basic eligibility for a monetary allowance under 38 U.S.C.A. § 1815 for disability due to a birth defect (Hirschsprung's disease) are not met, the claim is without legal merit.  38 U.S.C.A. §§ 1811, 1812, 1815, 1831 (West 2002 & Supp. 2012); 38 C.F.R. § 3.815 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Preliminary Considerations

A.  Additional Evidence

The RO furnished the appellant a statement of the case (SOC) relative to the issue on appeal in May 2009.  In August 2011 and November 2011, after the appeal had been certified to the Board, the appellant, through her congresswoman and VA representative, submitted additional evidence directly to the Board: specifically, a copy of (1) her driver's license; (2) her birth certificate; (3) her father's DD Form 214; (4) her father's birth certificate; (5) her father's death certificate; (6) information with respect to facilities where she had received medical treatment; (7) a medical eligibility statement; and (8) a statement to the effect that she was unable to work as a result of her birth defect, and had filed for disability benefits from the Social Security Administration.

The Board has reviewed the evidence submitted and finds that it is duplicative (items #1, 3, 4, and 5, as enumerated above) and/or does not contain any meaningful information that bears on the outcome of the issue that is currently being decided (items 2, 6, 7, and 8).  Accordingly, inasmuch as the evidence is not "pertinent" to the appellant's appeal, there is no need to return the case to the RO for further consideration or, alternatively, to solicit a waiver of RO review from the appellant.  See 38 C.F.R. § 20.1304(c) (2012).

B.  The Veterans Claims Assistance Act of 2000

On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants.  However, the provisions of the VCAA have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).  See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004).

II.  The Merits of the Appellant's Appeal

The appellant is seeking benefits for disability due to Hirschsprung's disease.  She does not allege, and the evidence does not in any way suggest, that she has spina bifida.  Thus, the provisions of 38 U.S.C.A. § 1805 and 38 C.F.R. § 3.814 (pertaining to monetary allowances for disability due to spina bifida) are inapplicable.

Under the law pertaining to benefits for birth defects other than spina bifida, a monetary allowance is payable to an individual who, regardless of age or marital status: (1) is the biological child of a woman who performed active military, naval, or air service in the Republic of Vietnam during the period beginning on February 28, 1961 and ending on May 7, 1975, without regard to the characterization of the woman's service; and (2) was born with one or more covered birth defects.  38 U.S.C.A. §§ 1811, 1812, 1815, 1831 (West 2002 & Supp. 2012); 38 C.F.R. § 3.815 (2012).  

In the present case, the evidence reflects that the appellant was born with Hirschsprung's disease, which is included as a "covered birth defect" under 38 U.S.C.A. §§ 1811, 1812, and 1815 (West 2002 & Supp 2012).  See 38 C.F.R. § 3.815(d)(1)(viii) (2012).  Significantly, however, the appellant does not contend, and the evidence does not show, that her biological mother performed active military, naval, or air service in the Republic of Vietnam during the period beginning on February 28, 1961 and ending on May 7, 1975.  To the contrary, in her application for benefits, dated in March 2007, the appellant specifically indicated that her mother is (or was) not a Vietnam veteran.  There is nothing of record to suggest otherwise.

In her submissions, the appellant maintains, in essence, that she should be granted benefits because her biological father served in Vietnam.  However, the pertinent legal authority governing entitlement to a monetary allowance under 38 U.S.C.A. § 1815 is clear and specific:  It must be shown that her mother had the required service.  It is undisputed that she did not.  The Board is bound by the law as written.  As, on these facts, there is no legal theory that would permit an award of a monetary allowance under 38 U.S.C.A. § 1815, the appellant's claim must be denied as lacking legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to a monetary allowance under 38 U.S.C.A. § 1815 for disability due to a birth defect (Hirschsprung's disease) is denied.



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs