Citation Nr: 19190822 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 19-30 369 DATE: December 3, 2019 ORDER Entitlement to benefits under the provisions of 38 U.S.C. § 1815 for a child of a veteran born with a covered birth defect is denied. FINDING OF FACT The appellant’s biological father is a Veteran who served during World War II; the appellant’s biological mother is not a veteran who served in Korea or Vietnam. CONCLUSION OF LAW The criteria for establishing benefits under the provisions of 38 U.S.C. § 1815 for a child of a veteran born with covered birth defects have not been met. 38 U.S.C. §§ 1811, 1812, 1815, 1821; 38 C.F.R. §§ 3.814, 3.815.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1944 to May 1946. The Veteran died in February 1985. The appellant is the Veteran’s daughter. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied compensation for birth defects. In an October 2018 statement, the appellant stated that her claim is for disabilities she inherited as a result of her father’s exposure to radiation during his service in World War II in Japan. She specifically stated that her claim is not for spina bifida or other issues associated with Agent Orange. In a January 2019 notice of disagreement and September 2019 substantive appeal, the appellant indicated she believed she had breast cancer as a result of her father’s exposure to radiation. In the substantive appeal, she stated that there was no family history on either side of the family of breast cancer. Private treatment records from June 2008 reflect that the appellant was diagnosed with breast cancer. The Veteran’s service records, statements from the Veteran, and unit operational reports indicate that he was present during the occupation of Hiroshima or Nagasaki, Japan between 1945 and 1946 and was therefore exposed to ionizing radiation. In a September 2016 decision, the Board granted the Veteran’s surviving spouse service connection for the cause of the Veteran’s death, due to exposure to ionizing radiation. VA compensation benefits are only payable to a child of a veteran under circumstances limited to when a Veteran was exposed during active duty to herbicide agents in Vietnam and Korea. 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 or had covered service in Korea. See 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814; see also 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). VA will provide certain benefits for an individual with a disability from certain birth defects whose mother is a Vietnam veteran or a veteran with covered service in Korea. 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. 38 C.F.R. § 3.814(c)(1). A veteran with “covered service in Korea” is any individual, without regard to the characterization of that individual’s service, who served in the active military, naval, or air service in or near the Korean demilitarized zone (DMZ) beginning on September 1, 1967 to August 31, 1971. 38 U.S.C. § 1821(c). The Veteran’s service personnel records reflect that he served during World War II. The evidence does not show, and the appellant has not asserted, that the Veteran served in Korea or Vietnam, or that her mother is a veteran who served in Vietnam or Korea. The appellant has asserted that she has breast cancer due to the Veteran’s exposure to ionizing radiation during World War II. Unfortunately, there are no provisions for VA compensation for a child of a World War II Veteran who had exposure to ionizing radiation. Spina bifida is the only birth defect which warrants an award of monetary benefits to a child based on the herbicide agent exposure of a 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, an appellant must show that the 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 Board is sympathetic to the appellant’s claim and situation. However, in this case, there is no legal basis on which to grant the benefits sought and the claim must be denied. 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 The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.