Citation Nr: 1800011 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 13-22 231A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to benefits under 38 U.S.C. § 1815 for a child born with birth defects. WITNESSES AT HEARING ON APPEAL Appellant, O.G., and I.G. ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A hearing was held in August 2017 by means of video conferencing equipment with the appellant in San Antonio, Texas before the undersigned Veterans Law Judge, sitting in Washington, DC, and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. The Veteran, the biological father of the appellant, served in Vietnam; the appellant's biological mother was not in service and did not serve in Vietnam. 2. The appellant does not have spina bifida or any other disability resulting therefrom. CONCLUSION OF LAW The criteria for entitlement to benefits under 38 U.S.C.A. Chapter 18 for disability due to covered birth defects other than spina bifida have not been met. 38 U.S.C. §§ 1802, 1811, 1812, 1821, 5107 (2012); 38 C.F.R. §§ 3.814, 3.815 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice is not required in this instance because the issue presented is solely one of statutory interpretation and as discussed below, the claim is barred as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). II. Analysis VA shall pay a monthly allowance, based upon the level of disability, to or for a child who has been determined to be suffering from spina bifida and who is a child of a Vietnam veteran. 38 U.S.C. § 1805 (a); 38 C.F.R.§ 3.814 (a). "Spina bifida" means any form and manifestation of spina bifida except 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 an award of monetary benefits based on exposure of a veteran (as a father of the child) to herbicides. Jones v. Principi, 16 Vet. App. 219 (2002). In precedent opinion VAOPGCPREC 5-99 (May 3, 1999), VA's General Counsel held that 38 U.S.C.A. § 1802 applies to all forms of spina bifida other than spina bifida occulta, and that for purposes of that chapter 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. The Board is cognizant that the Jones Court found deficiencies in VAOPGCPREC 5-99 as it pertained to analyzing whether neural tube defects, such as encephalocele and anencephaly, are encompassed within the meaning of 38 U.S.C. § 1802. Those issues are not presented in this case, and VAOPGCPREC 5-99 is cited only for definition purposes. The claimant bears the burden of presenting and supporting her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. The appellant has sought benefits for a birth defect, claimed as Hirschsprung' s disease, based solely on the service of his biological father in Vietnam. The appellant does not contend, nor does the record indicate, that he has any form or manifestation of spina bifida. Further, the appellant does not contend, nor does the record support, that the Veteran's biological mother was a Vietnam veteran. The current pertinent laws and regulations only allow the Board to award benefits to the biological child of a male Vietnam veteran if that child has a form or manifestation of spina bifida. As the appellant does not have a form or manifestation of spina bifida, and his biological mother is not a Vietnam veteran, the appellant's claim must be denied. The Board acknowledges the appellant's argument concerning H.R. Bill 2519, introduced on June 26, 2013. "H.R. 2519 - 113th Congress: Victims of Agent Orange Relief Act of 2013." www.GovTrack.us. 2013. December 21, 2017 . However, the proposed law was not enacted. The Board is sympathetic to the appellant's medical condition; however, as a matter of law, the Board may not grant this claim. ORDER Entitlement to benefits under 38 U.S.C. Chapter 18 for a disability due to covered birth defects other than spina bifida is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs