Citation Nr: 18147418 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 15-14 563 DATE: November 5, 2018 ORDER Entitlement to benefits under 38 U.SC. § 1805 for a child born with spina bifida is denied. FINDING OF FACT The appellant is not shown to have spina bifida. CONCLUSION OF LAW The criteria for establishing benefits under the provisions of 38 U.S.C. § 1805 for a child born with spina bifida have not been met. 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to August 1973, including service in the Republic of Vietnam from June 1971 to March 1972. The appellant is the Veteran’s son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the appellant was scheduled for a Board hearing in June 2018, but he did not report for the hearing. Therefore, the hearing request is deemed to be withdrawn. Entitlement to benefits under 38 U.SC. § 1805 for a child born with spina bifida The appellant has asserted that he is entitled to benefits under 38 U.S.C. § 1805 for spina bifida. VA will provide certain benefits, including monthly monetary allowance, for an individual who suffers from a form or manifestation of spina bifida and whose biological father or mother is a Vietnam veteran. See 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814; see also, e.g., 72 Fed. Reg. 32,395 (June 12, 2007) and 79 Fed. Reg. 20,308 (April 14, 2014) (both providing that benefits for birth defects other than spina bifida may not be presumed based on Vietnam-era herbicide agent exposure of parents). 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). The Veteran’s DD Form 214 reflects that he had service in the Republic of Vietnam during the Vietnam War era, and is thus, a Vietnam veteran. Spina bifida is the only birth defect which warrants an award of monetary benefits based on the herbicide agent exposure of a Vietnam veteran who is the father of the child at issue. Jones v. Principi, 16 Vet. App. 219, 225 (2002). For purposes of benefits under 38 U.S.C. § 1805, “the term ‘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)(4). To qualify for a monthly allowance on the basis of other birth defects, the appellant must show that the Vietnam veteran who was exposed to herbicide agents is his or her mother. 38 U.S.C. §§ 1812, 1815; 38 C.F.R. § 3.815. The appellant is the Veteran’s biological son, conceived after service. The appellant has asserted that he has spina bifida as a result of his father’s service in Vietnam. However, the evidence of record does not show that he has been diagnosed with spina bifida. As he is not the child of a biological mother who is a Vietnam veteran, the appellant does not qualify for a monthly allowance on the basis of birth defects, other than spina bifida. 38 U.S.C. §§ 1811, 1812, 1815; 38 C.F.R. § 3.815. In a May 2014 statement, the appellant’s father stated that the appellant was diagnosed with a case of spina bifida around age 11 or 12. In a May 2014 letter, the appellant’s mother stated that the appellant was diagnosed with spina bifida and spondylolisthesis when he was 13. She stated they were told that if he did not stay physically active and keep the back strong, he would be in a wheelchair by the time he was 30. She stated that the appellant enlisted in the marines, but he struggled with intense physical demands on his back and was medically discharged before he could complete basic training. Although the appellant and his parents have asserted that he was diagnosed with spina bifida, as lay witnesses, they are only competent to report symptoms capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Spina bifida, which is confirmed by diagnostic testing, such as X-rays, is not the type of disorder which is susceptible to lay opinion concerning diagnosis. The appellant’s service treatment records do not note any diagnoses of spina bifida. No back conditions were noted in an April 1992 examination report for enlistment in the Marine Corps. A November 1993 service treatment record reflects that the appellant had a prior history of neck pain from a soccer game. The record indicates that “medical recommend[ed] discharge.” The appellant’s chief complaints were noted to be neck and left shoulder pain. The diagnosis was chronic trapezius myofascial pain. A November 1993 service treatment record indicates the appellant reported the neck pain began approximately three years ago during a soccer game. He had left sided neck pain when doing sit ups and boxing which caused blurred vision and headaches. Private treatment records including lumbar spine MRIs have been obtained. However, none of the records indicate the appellant has been diagnosed with spina bifida. A May 2014 private MRI of the lumbar spine showed L5 spondylolysis with grade ½ spondylolisthesis, L3-4 moderate broad-based disc protrusion with small central extrusion resulting in moderate central canal stenosis, multilevel neural foraminal narrowing most significant at L4-5 and L5 S1 levels, specifically delineated above. A July 2014 private treatment record noted the appellant had diagnoses of lumbago, acquired spondylolisthesis, lumbar degenerative disc disease, lumbar canal stenosis and lumbar spondylosis. A July 2014 private treatment record indicates the appellant reported having low back pain. The record noted the appellant had spondylolisthesis at L4-L5 and L5-S1. The appellant had an extremely lordotic spine due to his spondylolisthesis. A September 2014 private treatment record noted the appellant had a history of cervical degenerative disk disease and lumbar degenerative disk disease. The appellant had anterior cervical diskectomy and lumbar fusion surgery. A September 2014 MRI report noted vertebral body heights were preserved. There were intervertebral disc spacers at L3-L4, L4-5 and L5-S1 that were in good positioning. There was trace anterolisthesis of L5 on S1. None of the private treatment records indicate the appellant has had a diagnosis of spina bifida. Based on the foregoing, the appellant does not meet the requisite criteria for eligibility for benefits under 38 U.S.C. § 1805. Although the appellant and his parents have asserted that he was diagnosed with spina bifida, his service treatment records and private treatment records, including an MRI of the lumbar spine, do not show any diagnoses of spina bifida. Without any finding of a diagnosis of spina bifida, there is no legal basis on which to grant benefits in this instance. The Board acknowledges the Veteran’s honorable service to his country, including his service in Vietnam. However, it must apply the law as promulgated and is bound by VA regulations. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). As the law is dispositive of the issue on appeal, the claim must be denied because of the absence of legal merit or entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Marenna, Counsel