Citation Nr: 1754896 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 16-00 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to benefits under the provisions of 38 U.S.C. § 1805 and 38 C.F.R. § 3.814 for a child born to a Vietnam veteran. 2. Entitlement to benefits under the provisions of 38 U.S.C. § 1815 and 38 CFR § 3.815 for disability from birth defects other than spina bifida. ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active military service from November 1965 to January 1969. Appellant is the Veteran's biological son. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Appellant's biological father is a Veteran who served in the Republic of Vietnam. 2. The Appellant's mother is not a veteran, and did not serve in the Republic of Vietnam. 3. The Appellant is not shown to suffer from spina bifida or any of the other applicable birth defects. CONCLUSIONS OF LAW 1. The criteria for entitlement to benefits under 38 U.S.C. § 1805 for an individual suffering from spina bifida whose biological father or mother is a Vietnam veteran have not been met. 38 U.S.C. §§ 1802, 1805 (2012); 38 C.F.R. § 3.814 (2017). 2. The criteria for entitlement to benefits under 38 U.S.C. § 1815 for an individual with disability from a covered birth defect whose mother is a Vietnam veteran have not been met. 38 U.S.C. §§ 1812, 1815 (2012); 38 C.F.R. § 3.815 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). In this case, the Board has preliminarily found no deficiencies in VA's duties to notify and assist the Appellant, nor have any been identified. The Board will thus proceed to an adjudication of the merits of this case. The Appellant seeks benefits pursuant to 38 U.S.C. §§ 1805 and 1812 based on the Veteran's (Appellant's father) service in Vietnam. He contends that his sarcoidosis with associated cardiomyopathy was caused by the Veteran's exposure to Agent Orange. The Veteran's DD Form 214 has confirmed that the Veteran served on active duty with the Navy from November 1965 to January 1969. The Appellant has stated that the Veteran served on the landmass of Vietnam from January 1968 to November 1968. The Veteran's military personnel records (MPRs) have confirmed that the Veteran served in Vietnam from January 1968 until at least September 1968. Thus, the Appellant's statement that the Veteran was in Vietnam from January 1968 to November 1968 are found to be credible. The Board must therefore determine whether Appellant is entitled to monthly compensation for spina bifida under 38 U.S.C. §§ 1802 and 1805; or, for other birth defects under 38 U.S.C § 1811 and 1812. As laid out below, the Board finds that the Appellant is not entitled to compensation under any of the applicable laws or VA regulations. 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 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 testicle, and Williams syndrome, that are associated with the veteran's exposure to toxic herbicides. 38 U.S.C. §§ 1805(a), 1812, 1815; 38 C.F.R. §§ 3.814(a), 3.815. 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, without regard to the characterization of the person's service. Service in the Republic of Vietnam includes 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). "Spina bifida" means any form and manifestation of spina bifida except spina bifida occulta. 38 U.S.C. § 1802; 38 C.F.R. § 3.814(c)(3). Significantly, 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. Jones v. Principi, 16 Vet. App. 219, 225 (2002). To qualify for a monthly allowance on the basis of other birth defects (as listed above), the Appellant must show that the Vietnam veteran who was exposed to herbicides is his or her mother. 38 U.S.C. § 1812, 1815; 38 C.F.R. § 3.815 (2017). With regard to spina bifida, the Appellant has not asserted, and the record does not reflect, that he has ever been diagnosed with any applicable forms of spina bifida. Instead, the Appellant has asserted that he is entitled to compensation under 38 U.S.C. § 1802 for his diagnosed sarcoidosis with associated cardiomyopathy on the basis of the Veteran's service in Vietnam and exposure to herbicides. Additional disabilities (depression, chronic bronchitis, bicuspid valve, migraine headaches, sleep apnea) are listed in a May 2012 application. Although the Veteran had qualifying service in the Republic of Vietnam, VA compensation is only payable to the Appellant under these regulations, if he has been found to have certain forms of spina bifida. The Board is aware that the Appellant currently receives treatment for his conditions through private treatment providers. The available medical evidence of record confirms that the Appellant has been diagnosed with sarcoidosis with associated residuals. However, the Appellant has not presented competent and credible medical evidence that he has been diagnosed with any form or manifestation of spina bifida. With respect to the Appellant's claim for monetary compensation for other birth defects, pursuant to 38 U.S.C. §§ 1811, 1812, and 1815, the record does not reflect and the Veteran has not asserted that he is entitled to benefits on the basis of qualifying service by his mother in Vietnam. In a September 2013 notice of disagreement, the Appellant confirmed that the VA was correct in its assertion that the Appellant's mother was not in Vietnam. As noted above, he has asserted that he is entitled to benefits on the grounds that his father served in the Republic of Vietnam (RVN) and was exposed to herbicides. Therefore, with regard to application of 38 U.S.C. § 1815, the Appellant does not qualify for a monthly allowance on the basis of other birth defects, as he is not the child of a biological mother who is a Vietnam veteran. The Board also notes that the Veteran's diagnosed sarcoidosis and accompanying disorders have not been shown to be birth defects for the purposes of VA laws and regulations. The Board is sympathetic to the Appellant's medical conditions and is grateful for the Veteran's service. However, as the law is dispositive of the issues on appeal, the claims must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the claims are denied. 38 U.S.C. §§ 1802, 1805, 1811, 1812, 1815; 38 C.F.R. § 3.814, 3.815 (2017). ORDER Benefits under 38 U.S.C. § 1805 for disability due to spina bifida are denied. Benefits under 38 U.S.C. § 1815 for disability from birth defects other than spina bifida are denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs