Citation Nr: 20007443 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 17-50 344 DATE: January 30, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1815 for a child of a Vietnam veteran born with birth defects is denied. FINDING OF FACT The appellant’s 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 October 1967 to October 1969, including service in the Republic of Vietnam. The appellant is the Veteran’s biological son. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, a hearing was held before the undersigned. A transcript of the hearing is of record. The appellant has asserted that he is entitled to benefits under 38 U.S.C. § 1815 for birth defects for a child born to a Vietnam veteran. The appellant is the Veteran’s son, conceived after service. In his September 2015 claim, the appellant stated that he believed he has medical conditions due to his father’s exposure to Agent Orange in Vietnam. The Veteran served in combat in Vietnam and received a Purple Heart. The appellant stated that he has been diagnosed with rheumatoid arthritis, psoriatic arthritis, and extreme joint pain and stiffness. The appellant has submitted medical records, including a June 2015 statement from a private physician, indicating he has been diagnosed with rheumatoid arthritis and psoriatic arthritis. At the December 2019 Board hearing, the appellant testified that he began having symptoms of his medical conditions at a young age. He stated that he has been diagnosed with several autoimmune diseases including psoriasis. VA will provide certain benefits, including a 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, 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 exposure of parents). Additionally, VA will provide 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. 38 C.F.R. § 3.814(c)(1). In this case, the Veteran had verified service in Vietnam during the Vietnam era and is thus, a Vietnam veteran. However, in this case, the law is dispositive on the appellant’s claim for birth defects other than spina bifida. 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 mother. 38 U.S.C. §§ 1812, 1815; 38 C.F.R. § 3.815. In his September 2015 claim, the appellant noted that his mother was not a Vietnam veteran. He has not asserted that his mother was a Veteran who served in the Republic of Vietnam. As the appellant is not the child of a biological mother who is a Vietnam veteran, he 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. Based on the foregoing, the appellant does not meet the requisite criteria for eligibility for benefits under 38 U.S.C. § 1805 or 38 U.S.C. § 1815. The appellant has not asserted, and the evidence does not show, that he has been diagnosed with spina bifida. Without any finding of a diagnosis 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 acknowledges the appellant’s frustration that for birth defects other than spina bifida, only the children of female veterans are eligible. The Board does not doubt that the Veteran was exposed to herbicide agents and that the appellant is suffering from illnesses that impact his life. Unfortunately, based on the law as it exists, the appellant is not entitled to benefits. The Board 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). A. S. CARACCIOLO 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.