Citation Nr: 1325919	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-27 561	)	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. § 1815 for a child born with birth defects.


ATTORNEY FOR THE BOARD

J.M. Seay, Associate Counsel


INTRODUCTION

The appellant, who is not a Veteran, has claimed entitlement to benefits based on the service of her father.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO).  

Subsequent to the statement of the case, the appellant submitted statements regarding her reported birth defects.  She did not submit a waiver.  However, her statements are cumulative and redundant of her previous statements associated with the claims file and considered by the RO.  Therefore, a waiver of review by the agency of original jurisdiction is not required.  38 C.F.R. § 20.1304(c) (2012). 

The appellant requested a hearing in connection with her appeal.  However, in November 2011, the appellant withdrew her request for a hearing.  Therefore, the Board may proceed with a decision.  


FINDINGS OF FACT

1.  The appellant has claimed deformity of the breasts, eyes, hearing loss, and gynecological disabilities, but has not stated that she has spina bifida.  

2.  The mother of the appellant is not a Vietnam veteran.


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. §§ 1805, 1815 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.814, 3.815 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The United States Court of Appeals for Veterans Claims (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 the present case, the facts are not in dispute.  As discussed below, resolution of the appellant's appeal is wholly dependent on interpretation of the relevant VA statutes and regulations, and their application to the facts already of record.  In this particular case, the facts that serve as the basis of the denial of the claim are incontrovertible.  Thus, as no reasonable possibility exists that any further development would assist in substantiating the claim, any deficiencies of VA 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).  Moreover, because the claim is being denied as a matter of law, no further development is warranted.  See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought).

Finally, the Board observes that the RO conceded the appellant's father's military service.  There is no official documentation verifying the appellant's father's service.  However, as noted above, a remand to verify the appellant's father's service is not required in this case.  38 C.F.R. § 3.814 only allows for a monetary allowance for an individual suffering from spina bifida whose father was a Vietnam veteran or a veteran with covered service in Korea.  The appellant has not stated nor does the evidence reflect that she has spina bifida.  Therefore, further action to verify the dates of the appellant's father's military service would needlessly delay action on this appeal and would not result in any benefit to the appellant.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law is not appropriate when it imposes additional burdens with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Law and Analysis

First, the Board recognizes that the appellant's father's service in the Republic of Vietnam within the specified time frame has been conceded by the RO.  Pursuant to 38 U.S.C.A. § 1805 and 38 C.F.R. § 3.814, in order to obtain benefits on the basis of a father who was a Vietnam veteran, it must be shown that the child is an individual who is suffering from spina bifida.  In this case, there is no diagnosis of spina bifida and spina bifida has not been identified by the appellant as a basis for her claim.  Therefore, these provisions are not for application in this case.    

To qualify for a monthly allowance on the basis of a covered birth defect other than spina bifida, the claimant must show that the Vietnam veteran is the mother of the child.  38 U.S.C.A. §§ 1812, 1815; 38 C.F.R. § 3.815.  The appellant has stated that she has a deformity of the breasts, eyes, hearing loss, and has gynecological disabilities that resulted in the removal of her uterus and cervix.  The appellant does not contend and the evidence does not show that her mother had active military service involving service in Vietnam.  Rather, the appellant seeks VA monetary benefits through her father's Vietnam service.  Pursuant to 38 U.S.C.A. § 1815 and 38 C.F.R. § 3.815, in order to be eligible for a covered birth defect other than spina bifida, the appellant's mother must have had the applicable Vietnam service.  As no such service is demonstrated, the claim must be denied because under the law, there is no entitlement to the benefit sought.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

The appellant contends that she is entitled to benefits regardless of VA regulations.  However, the Board is bound by the regulations, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department.  38 U.S.C.A. § 7104.  The benefits which are administered under that structure are authorized by Congress, not VA.  Congress expressly determined that a child born with certain birth defects other than spina bifida may receive benefits only if his or her biological mother was a Vietnam veteran.  The Board is bound by the limits imposed by Congress.  While the Board is highly sympathetic to the appellant's situation, the benefit sought cannot be granted under current law.

ORDER

The claim for benefits under 38 U.S.C.A. § 1815 for a child born with birth defects being without legal merit; the appeal is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs