Citation Nr: 18154774 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 15-27 935 DATE: December 4, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1815 for birth defects is denied. FINDING OF FACT The appellant’s biological father is a Vietnam veteran; the appellant’s biological mother is not a Veteran. CONCLUSION OF LAW The criteria for establishing benefits under the provisions of 38 U.S.C. § 1815 for a child of a female Vietnam veteran born with covered birth defects have not been met. 38 U.S.C. §§ 1811, 1812, 1815; 38 C.F.R. § 3.815. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1965 to January 1969, including service in the Republic of Vietnam. The appellant is the Veteran’s son. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant has asserted that he is entitled to benefits under 38 U.S.C. § 1815 for achondroplasia. In a July 2015 substantive appeal, the appellant stated that he believed Agent Orange was the cause of his birth defect, achondroplasia. He stated that he believed VA is negligent by not recognizing the effects of his father’s exposure to Agent Orange. 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). Additionally, VA will provide certain benefits for an individual with a disability from certain birth defects whose mother is a Vietnam veteran. See 38 U.S.C. §§ 1812, 1815; 38 C.F.R. § 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). A January 2012 response from the National Personnel Records Center reflects that the Veteran served in Vietnam from May 1967 to May 1968. Therefore, he is a Vietnam veteran. The evidence does not show, and the appellant has not asserted, that his mother is 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). 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 achondroplasia as a result of his father’s exposure to Agent Orange in Vietnam. The evidence does not show, and he has not asserted, that he has been diagnosed with spina bifida. 38 U.S.C. § 1805. Based on the foregoing, the appellant does not meet the requisite criteria for eligibility for benefits under 38 U.S.C. § 1815. The appellant has not asserted that his mother is a veteran who served in Vietnam. 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. Without any finding of spina bifida or a showing that the appellant’s mother is a Vietnam veteran, there is no legal basis on which to grant benefits in this instance. The Board is sympathetic to the appellant’s medical condition and grateful for the Veteran’s honorable service to his country. 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