Citation Nr: 1803586 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-23 882 DATE THE ISSUES 1. Entitlement to benefits under 38 C.F.R. § 3.815 for a child born with birth defects. 2. Entitlement to benefits under 38 C.F.R. § 3.814 for a child born with spina bifida. ORDER Entitlement to benefit s under 38 C.F.R. § 3.815 for a child born with birth defects is denied. Entitlement to benefits under 38 C.F.R. § 3.814 for a child born with spina bifida is denied. FINDINGS OF FACT 1. The Veteran, the biological father of the appellant, served in Vietnam. 2. The appellant's biological mother was not in service and did not serve in Vietnam. 3. The appellant does not have spina bifida. CONCLUSIONS OF LAW 1. The criteria for entitlement to benefits under 38 C.F.R. § 3.815 for a child born with birth defects have not been met. 38 U.S.C. §§ 1811, 1812, 5107 (2012); 38 C.F.R. § 3.815 (2017). 2. The criteria for entitlement to benefits under 38 C.F.R. § 3.814 for a child born with spina bifida have not been met. 38 U.S.C. §§ 1802, 5107 (2012); 38 C.F.R. § 3.814 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia (RO). In August 2017, the appellant testified at a videoconference hearing before the undersigned, and a transcript is of record. This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this appellant's case should take into consideration the existence of these electronic records. Veterans Claims Assistance Act of 2000 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). Law and Analysis The appellant seeks entitlement to benefits as a child of a Vietnam veteran and having been born with numerous birth defects. VA shall pay benefits, based upon the level of disability, to or for a child who has been determined to be suffering from a covered birth defect and who is a child of a mother who served in Vietnam. 38 U.S.C. §§ 1811, 1812 (2012); 38 C.F.R. § 3.815 (2017). Likewise, VA will pay benefits, 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, mother or father. 38 U.S.C. §§ 1802 (2012); 38 C.F.R. § 3.814 (2017). "Spina bifida" means any form and manifestation of spina bifida except spina bifida occulta. 38 U.S.C. § 1802 (2012); 38 C.F.R. § 3.814 (c)(4) (2017). Spina bifida is the only birth defect that warrants an award of monetary benefits based on exposure of a child's father 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. § 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 definitional purposes. The claimant bears the burden of presenting and supporting her claim for benefits. 38 U.S.C. § 5107 (a) (2012); See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the appellant's claims. At the August 2017 videoconference hearing, the appellant testified that she was born with a cleft palate, and that she spent seven months in the hospital. She has had 43 surgeries, which were all related to the cleft palate and reconstructive in nature. The appellant testified that she went through eight years of speech therapy. The appellant testified that it was her father's service under which she is claiming. She stated that she did not have spina bifida but she does have scoliosis. The appellant testified that she also has acid reflux, anemia, anxiety, rheumatoid arthritis, cervical dysplasia, clubbed thumbs, heart palpitations, heel spurs, high blood pressure, high cholesterol, hypertension, iron deficiency, kidney stones, fatty liver, and ovarian cysts. She stated that some of these conditions she has had since birth. Additionally, everything on her left side is bigger than on her right side. She believes that all of these conditions are due to her father's service and exposure to Agent Orange while in Vietnam. Based upon the foregoing, the Board finds that the evidence of record establishes that the appellant is claiming benefits through her biological father's service in Vietnam, that she does not suffer from any form of spina bifida, and that her biological mother did not serve in Vietnam. The current pertinent laws and regulations, however, allow the Board to award benefits to the biological child of a male Vietnam veteran only if that child has a manifestation of a form of spina bifida. As the appellant does not have a manifestation of a form of spina bifida, and her biological mother is not a Vietnam veteran, the appellant's claims must be denied. The Board is sympathetic to the appellant's multiple birth defects, but as a matter of law, the Board may not grant this claim. ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Counsel Copy mailed to: The Appellant Department of Veterans Affairs