Citation Nr: 21064978 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-50 045 DATE: October 22, 2021 ORDER The appellant's application to reopen his claim for benefits under 38 U.S.C. Chapter 18 is granted. Entitlement to benefits under 38 U.S.C. § 1815 for a child born with covered birth defects is denied. Entitlement to benefits under 38 U.S.C. §§ 1805, 1821, and 1822 for a child born with spina bifida is denied. FINDINGS OF FACT 1. In January 2010, the appellant was notified that VA denied benefits under 38 U.S.C. Chapter 18 in a November 2009 rating decision. The appellant was informed in writing of the adverse determination and his appellate rights and did not submit a notice of disagreement (NOD) with the decision. 2. The additional documentation submitted since the November 2009 rating decision is new and material. 3. The appellant's mother is not a Veteran. 4. The appellant does not have spina bifida. CONCLUSIONS OF LAW 1. The November 2009 rating decision denying benefits under 38 U.S.C. Chapter 18 is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the appellant's claim has been received. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a). 3. The criteria for establishing benefits under the provisions of 38 U.S.C. § 1815 for a child whose mother is a Vietnam Veteran and who was born with covered birth defects are not met. 38 U.S.C. §§ 1116A, 1811, 1812, 1815, 1821, 1822; 38 C.F.R. § 3.815. 4. The criteria for establishing benefits under the provisions of 38 U.S.C. § 1805, 1821, and 1822 for a child born with spina bifida are not met. 38 U.S.C. §§ 1116A, 1802, 1805, 1821, 1822; 38 C.F.R. § 3.814. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Air Force from April 1970 to April 1990. He died in March 2015. The appellant is the Veteran's son. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2017 administrative decision, which reopened and denied the appellant's claim. In July 2021, the appellant was afforded a hearing before the undersigned Veterans Law Judge. 1. Whether new and material evidence has been received to reopen a claim of benefits under 38 U.S.C. Chapter 18. In a November 2009 administrative decision, the RO denied the appellant's previous claim for benefits under 38 U.S.C. Chapter 18 because the Veteran did not have service in the Republic of Vietnam and because the appellant did not have spina bifida. The appellant was informed in writing of the adverse decision in January 2010 and his procedural and appellate rights. He did not submit an NOD or additional evidence within one year of the January 2010 notice. Accordingly, the Board concludes that the November 2009 administrative decision is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The January 2017 administrative decision on appeal reopened and considered the appellant's claim on the merits. The Board is required to consider the question of whether new and material evidence has been received to reopen an appellant's claim without regard to the Regional Office's (RO's) determination in order to establish the Board's jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The November 2009 administrative decision was based in part on the lack of evidence that he was the biological child of the Veteran. The appellant has submitted a copy of his birth certificate which lists the Veteran as his father. The newly submitted evidence relates to an unestablished fact necessary to substantiate the claim. Therefore, new and material evidence has been received, the appellant's claim is reopened. 38 C.F.R. § 3.156(a). 2. Entitlement to benefits under 38 U.S.C. §§ 1805, 1815, 1821, or 1822 for spina bifida or other birth defects. VA will provide certain benefits for an individual with spina bifida whose biological father or mother served in Vietnam, the Korean demilitarized zone (DMZ), or Thailand. See 38 U.S.C. §§ 1802, 1805, 1821, 1822; 38 C.F.R. § 3.814. 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). The term "spina bifida" refers to a defective closure of the bony encasement of the spinal cord, but does not include other neural tube defects such as encephalocele and anencephaly. VAOPGCPREC 5-99; but see Jones v. Principi, 16 Vet. App. 219 (2002). Spina bifida is the only birth defect which warrants an award of monetary benefits based on the herbicide agent exposure of a Vietnam, Korea, or Thailand veteran who is the father of the child at issue. See Jones, 16 Vet. App. at 219. To qualify for a monthly allowance for birth defects other than spina bifida, the appellant must show that his or her mother is a Vietnam veteran. 38 U.S.C. §§ 1812, 1815; 38 C.F.R. § 3.815. At the time of the appellant's claim, Chapter 18 benefits were only available for certain children of certain Vietnam or Korean veterans. 38 U.S.C. §§ 1805, 1805, 1821. During the pendency of the appeal, Chapter 18 benefits were extended to certain children of certain Thailand veterans. Pub. L. 116-23, § 4(a) (Jun. 25, 2019) (codified at 38 U.S.C. § 1822). This revision is similarly structured to afford benefits to individuals with spina bifida only. As this was the crux of the denial at the RO, there is no prejudice to the appellant in proceeding to consider it here. On his April 2009 and February 2015 applications for benefits, the appellant indicated that his mother is not a Vietnam veteran. At his July 2021 Board hearing, the appellant testified that his mother is not a veteran. Board Hearing (Hr'g) Transcript (Tr.) at 7. His representative argued that the appellant's mother must have been exposed by being in proximity to the Veteran and the appellant should be afforded the benefit of the doubt and granted benefits. Id. at 4. The record indicates that the Veteran served in Korea from October 1970 to November 1971 and from May 1984 to May 1985 and in Thailand from November 1971 to November 1973. The appellant is his biological son who was born after the Veteran's service in Korea and during his service in Thailand. Treatment records, statements from the appellant, and July 2021 hearing testimony all indicate that the appellant does not have spina bifida. The appellant has stated many times that he does not have spina bifida but does have osteogenesis imperfecta and scoliosis. Treatment records also indicate these diagnoses. There is no lay or medical evidence that the appellant was born with spina bifida, and the appellant has not contended that he has spina bifida. In cases where the appellant's father is a Vietnam, Korea, or Thailand veteran, benefits may be granted only for spina bifida, other than spina bifida occulta. 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, 1821, or 1822. The appellant has not asserted that he is 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. Osteogenesis imperfecta is listed as a familial disorder that is not covered, unless not familial in a particular family, under the program for individuals whose biological mother is a Vietnam veteran. 38 C.F.R. § 3.815(d)(2)(xiii). Spina bifida is classified separately is the same program under neural tube defects. 38 C.F.R. § 3.815(d)(1)(xii). The Board concludes that the Secretary's considered judgment is that osteogenesis imperfecta is not a form of spina bifida. The Board is bound by these regulations. Because the appellant does not have spina bifida and his mother is not a Vietnam Veteran, there is no legal basis upon which to grant benefits. The law is dispositive of the issue on appeal, and 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 (1994). J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, 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.