Citation Nr: A21017490 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 200727-187764 DATE: October 28, 2021 ORDER Entitlement to benefits under 38 U.S.C. §§ 1805 and 1815 for a child born with spina bifida or other covered birth defects is denied. FINDINGS OF FACT 1. The appellant's mother is not a Veteran. 2. The appellant does not have spina bifida. CONCLUSIONS OF LAW 1. The criteria for establishing benefits under the provisions of 38 U.S.C. § 1815 for a child of a female Veteran born with covered birth defects have not been met. 38 U.S.C. §§ 1116A, 1811, 1812, 1815, 1821, 1822; 38 C.F.R. § 3.815. 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. §§ 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 August 1965 to June 1969. He served in the Republic of Vietnam. The Veteran died in 2013. The appellant is the Veteran's daughter. A rating decision was issued in March 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In June 2020, the appellant submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR). In July 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the March 2020 decision. On a July 2020 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. The Board may only consider the evidence of record at the time of the March 2020 decision. The Board is required by law to review appeals in docket order unless "other sufficient causes" have been shown to advance a case on the docket. 38 U.S.C. § 7107. Here, given the special processing of spina bifida related appeals, the Board has considered the benefit to the appellant, the impact on other claimants that would result from advancing his case, and the impact on other claimants that would result if the case is not advanced, and has decided that advancement on the docket for the sole purpose of rendering this decision is fair and appropriate at this time. Specifically, expediting these appeals will "produce fair, efficient, timely, [and] effective review of appeals," and promote "fairness in adjudications among and between veterans" given the special docketing considerations related to spina bifida related appeals. See Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006); see also 38 U.S.C. § 7107(a)(2)(C), 38 C.F.R. § 20.900(c)(1). Entitlement to benefits under 38 U.S.C. §§ 1805 or 1815 for spina bifida or 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. 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). Service in the Republic of Vietnam also includes service within the 12 nautical mile territorial sea of Vietnam. 38 U.S.C. § 1116A; see also Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). A Veteran with covered service in Korea means a person who served in the active military, naval, or air service in or near the Korean DMZ between September 1, 1967, and August 31, 1971, and who is determined to have been exposed to an herbicide agent during such service. Exposure to an herbicide agent will be conceded if the Veteran served between April 1, 1968, and August 31, 1971, in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.814(c)(2). A Veteran with covered service in Thailand is a Veteran who served in the active military, naval, or air service in Thailand during the period beginning on January 9, 1962, and ending on May 7, 1975, and is determined to have been exposed to an herbicide agent during such service in Thailand. 38 U.S.C. § 1822. The Veteran served in Vietnam. The appellant is his biological daughter conceived during service. On June 2014, March 2015, and May 2019 applications for benefits, the appellant indicated that her mother is not a Vietnam Veteran. Records obtained from the Social Security Administration (SSA) indicate several diagnosed disorders but do not indicate that the appellant has spina bifida. On her applications for benefits, she has not asserted that she has spina bifida; the only disorder for which she stated she was claiming benefits was a pulmonary disorder. At a July 2020 HLR Informal Conference, the appellant asserted that she had adult-onset spina bifida. Spina bifida is a birth defect, however, and cannot onset in adulthood. There is no competent evidence that the appellant was born with spina bifida. 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 has not asserted that she 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. 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 law does not provide flexibility in this case. Because the appellant does not have spina bifida and her 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). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, Counsel The Board's decision is only binding in this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.