Citation Nr: A21018372 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 200803-187814 DATE: November 17, 2021 ORDER Entitlement to benefits under 38 U.S.C. § 1805 for a child of a Vietnam veteran born with spina bifida is denied. Entitlement to benefits under 38 U.S.C. § 1815 for a child of a Vietnam Veteran born with other covered birth defects is denied. FINDINGS OF FACT 1. A birth certificate or other evidence showing that the appellant is the Veteran's biological daughter is not of record. 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. § 1805 for a child of a Vietnam veteran born with spina bifida are not met. 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814. 2. 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 are not met. 38 U.S.C. §§ 1811, 1812, 1815; 38 C.F.R. § 3.815. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to March 1970. The Veteran passed away in February 2009. The appellant asserts that she is the Veteran's biological daughter. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2020 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the August 2020 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 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 her 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 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). Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The appellant may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to Benefits under 38 U.S.C. §§ 1805 and 1815 The appellant asserts that she has several disabilities, including congenital heart disease (cardiomyopathy), chloracne, and hyperthyroid due to her father's exposure to herbicide agents in service. 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, Korea or Thailand. 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 or Thailand. 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. 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). 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. "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)(3). In this case, the Veteran's DD Form 214 reflects that he served in Vietnam from March 1969 to March 1970. Therefore, he is presumed to have been exposed to herbicide agents in service. The appellant has asserted that she has several disabilities, including congenital heart disease, chloracne, hyperthyroid and other issues as a result of her father's exposure to herbicide agents in Vietnam. The appellant has asserted that she is the Veteran's biological daughter, born after his service in Vietnam. However, the appellant's birth certificate of record does not list her father's name. Additional evidence of record includes a funeral service program received in December 2019 that states that the appellant was the Veteran's daughter. A Social Security Number Application Process (SSNAP) printout lists the appellant's father as the Veteran. In a February 2020 letter, the RO requested that the appellant provide a birth certificate with her father's name. The RO informed the appellant that the birth certificate must show evidence of a biological relationship between the individual and the parent with qualifying Vietnam service. However, a birth certificate with the Veteran's name or other evidence showing a biological relationship has not been received. Although the funeral program and SSNAP printout indicate the Veteran was the appellant's father, they do not show a biological relationship. The Board finds that in the absence of evidence of a biological relationship between the Veteran and the appellant, the evidence of record does not establish that the appellant is the Veteran's biological daughter. As entitlement to benefits for spina bifida requires proof of a biological relationship, the claim cannot be granted. In her July 2020 claim, the appellant specifically noted that her mother was not a Vietnam veteran. As the appellant's mother was not a veteran, benefits are not warranted based on spina bifida or other birth defect disabilities. Based on facts in this case, the appellant does not meet the requisite criteria for eligibility to benefits under 38 U.S.C. § 1805 or §1815. Without proof of a biological relationship between the appellant and the Veteran 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 also notes that the appellant did not assert, and the evidence does not show, that she had a diagnosis of spina bifida other than spina bifida occulta. 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). 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.