Citation Nr: 20004529 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-19 343A DATE: January 21, 2020 ORDER Entitlement to compensation under 38 U.S.C. §§ 1805 and 1815 for a child born with spina bifida or covered birth defects is denied. FINDINGS OF FACT 1. The appellant does not have spina bifida. 2. The appellant’s mother is not a Vietnam veteran. CONCLUSIONS OF LAW 1. 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 (2012); 38 C.F.R. § 3.815 (2019). 2. 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 (2012); 38 C.F.R. § 3.814 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant, born in August 1968, is the biological son of a Veteran who served in the Alabama Army National Guard from June 1960 to August 1991. The appellant’s father, the Veteran, had periods of active duty (June 1963 to September 1963, from January 1990 to April 1990, and from February 1991 to March 1991) that included active duty for training (ACDUTRA) at Fort Gordon, Georgia, from July to August 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the appellant testified held before the undersigned Veterans law Judge. A hearing transcript is associated with the record. Entitlement to compensation under 38 U.S.C. §§ 1805 and 1815 for a child born with spina bifida or covered birth defects. The appellant contends that he has birth defects, including a congenital heart problem, kidney problems, hearing loss, and high blood pressure, as a result of his father’s exposure to herbicide agents during active duty for training (ACDUTRA) at Fort Gordon, Georgia. At the November 2019 hearing, the appellant testified that he was seeking benefits on an equitable basis for his birth defects, which he argues were caused by or the result of his father’s exposure to herbicide agents. In an October 2016 notice of disagreement, the appellant also asserted that his mother was exposed to herbicide agents through his father. VA compensation benefits are only payable to a child of a veteran under limited circumstances based on exposure 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. §§ 1805, 1821; 38 C.F.R. § 3.814. VA will also provide certain benefits for an individual with a disability from certain birth defects whose mother is a Vietnam veteran. See 38 U.S.C. § 1815; 38 C.F.R. § 3.815. Here, the appellant’s father had herbicide agent exposure during ACDUTRA at Fort Gordon, Georgia. The appellant does not contend that his father was a Vietnam veteran who performed active military service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, to include service in the waters offshore and service in other locations where the conditions of service involved duty or visitation in the Republic of Vietnam. See 38 C.F.R. § 3.814 (c)(1). Similarly, the appellant does not contend that his father is a veteran 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. See 38 U.S.C. § 1821(c). Additionally, it is uncontroverted that the appellant’s mother is not a veteran who served in Vietnam or Korea. The law is dispositive on the appellant’s claim for birth defects other than spina bifida. Although the appellant has asserted that he has several conditions, including a heart defect, defective hearing, high blood pressure and a kidney condition, as a result of his father’s exposure to herbicide agents, spina bifida is the only birth defect which warrants an award of monetary benefits 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). Although the appellant’s father was found to be exposed to herbicide agents during ACDUTRA at Fort Gordon, Georgia, the regulations only provide compensation for child of a veteran who served in Vietnam or Korea during the covered time period. Further, the appellant has not asserted, and the evidence does not show, that he has spina bifida. At the Board hearing, he specifically testified that he did not have spina bifida. Spina bifida is the only birth defect which warrants an award of monetary benefits 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, the 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. In his March 2009 claim, the appellant indicated that his mother was not a Veteran. He confirmed that his mother was not a Veteran at the November 2019 Board hearing. As the appellant is not the child of a biological mother who is a veteran who had qualified service in Vietnam, he does not qualify for a monthly allowance on the basis of birth defects other than spina bifida. 38 U.S.C. § 1815; 38 C.F.R. § 3.815. The Board does not dispute that the appellant has had longstanding health problems to include heart defect, which he reports date to his birth. However, based on the foregoing, he does not meet the criteria for eligibility for benefits for a birth defect under 38 U.S.C. § 1805 or § 1815. The appellant does not have a diagnosis of spina bifida and, therefore, does not meet the criteria for benefits under 38 U.S.C. § 1805. Additionally, the appellant is not the child of a biological mother who is a Vietnam Veteran and, therefore, does not qualify for benefits for birth defects other than spina bifida. See 38 U.S.C. §§ 1811, 1812, 1815; 38 C.F.R. § 3.815. Hence, there is no legal basis to grant benefits in this instance. 38 U.S.C. §§ 1805, 1815; 38 C.F.R. §§ 3.814; 3.815. The Board acknowledges the appellant is the son of a veteran who had honorable service to his country. Moreover, the Board is sympathetic to the appellant's claims and to the medical hardships he has endured throughout his life and appreciated his testimony before the undersigned and bringing his parents to the hearing with him. The Board also recognizes that his doctor believes there a high probability that the appellant’s congenital heart disorder and hearing loss are related to his father’s exposure to herbicide agents. However, the Board is constrained by the applicable laws in this matter. 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). Essentially, the Board is without authority to grant benefits to a claimant that has no basis under statutory law. See 38 U.S.C. § 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It is noted that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). 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). C.A. SKOW 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.