Citation Nr: A21018989 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 210421-182955 DATE: November 30, 2021 ORDER Entitlement to benefits under 38 U.S.C. § 1805 for a child of a veteran born with spina bifida is granted. FINDINGS OF FACT 1. The appellant is the biological child of the Veteran, born after his service, and she has been diagnosed with spina bifida, other than spina bifida occulta. 2. The evidence shows that the Veteran had active service near the perimeter of Korat Royal Thai Air Force Base (RTAFB) during the Vietnam era. CONCLUSION OF LAW The criteria for payment of a monetary allowance under 38 U.S.C. § 1805 for a child of a veteran born with spina bifida have been met. 38 U.S.C. §§ 1802, 1805, 5107(b); 38 C.F.R. §§ 3.102, 3.814. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1952 to December 1952, and from November 1953 to August 1968. The Veteran died in February 1999. The appellant is the Veteran's biological daughter. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2019 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant filed a timely notice of disagreement with the decision in February 2019. In February 2021, the RO issued a Statement of the Case (SOC) denying the claim. The appellant opted into the modernized review system in an April 2021 VA Form 10182. In the April 2021 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 February 2021 SOC. 38 C.F.R. § 20.301. The Board notes that there was a previous final rating decision denying entitlement to benefits for spina bifida in July 1999. Here, the February 2021 SOC reopened the claim and adjudicated it on the merits. As this is a higher standard than new and relevant evidence, the Board will consider this a favorable finding that new and relevant evidence has been received to readjudicate the claim and the Board will address only the underlying claim for benefits for a child born with spina bifida. Spina Bifida The appellant seeks a monetary allowance under 38 U.S.C. § 1805 for a child of a Veteran born with spina bifida. 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). A veteran with "covered service in Thailand" is any individual, without regard to the characterization of that individual's service, who served in the active military, naval, or air service in Thailand 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. 38 U.S.C. § 1822(c). 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 this case, the appellant's birth certificate indicates that the Veteran is her biological father. She was born in 1981, after the Veteran's military service. A January 1999 letter from a private physician states that the appellant has been diagnosed with spina bifida with myelomeningocele. Other private treatment records, including a January 2006 private treatment record, also note that the appellant was born with spina bifida. Therefore, the evidence supports a finding that the appellant has been diagnosed with a form or manifestation of spina bifida, other than spina bifida occulta. The appellant asserts that her father was exposed to herbicide agents while he was stationed at the Korat RTAFB from November 1967 through December 1968 because his work duties took him near the perimeter of the base. She also asserted that the Veteran was a passenger on planes that landed in Vietnam. VA provides special consideration of herbicide agent exposure on a factual basis for veterans whose duties placed them on or near the perimeters of Royal Thai Air Force bases. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang RTAFB as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by daily work duties, performance evaluations, or other credible evidence, herbicide agent exposure should be conceded on a facts-found or direct basis. The Veteran's Military Occupational Specialty (MOS) was aircraft radio repairman when he was stationed at the Korat RTAFB in the 553rd Electronic Maintenance Squadron (EMS). The Veteran's service personnel records reflect that he was assigned to the radio shop and performed bench checks and troubleshoots, and repaired radio systems installed on the assigned aircraft. The appellant's representative asserted that the radio shop where the Veteran was assigned was located on the flight line, which was within the 500-meter drift zone on the perimeter of the base. A statement from L.W., who was assigned to the Korat RTAFB from November 1968 to September 1969, indicates that the 553rd EMS radio shop personnel serviced aircraft in the shop and on the flight line in the drift zone. He stated that it was very common for EMS personnel to spend hours working on the flight line very near the perimeter, often 6 days a week. Records submitted by the appellant's representative, including photographs and maps of the base, show that the flight line was within 500 meters of the perimeter of the base. Work in the radio shop and flight line is consistent with the places, types and circumstances of the Veteran's service and supported by the Veteran's personnel records. Based on the Veteran's MOS and the persuasive supporting documentation submitted by the appellant, the Board finds that the evidence is at least in equipoise as to whether the Veteran's duties as an aircraft radio repairman took him near the perimeter of the Korat RTAFB and concludes on a facts found basis that his duties would have exposed him to herbicide agents. Resolving the benefit of the doubt in the appellant's favor, the Veteran's exposure to herbicide agents in Thailand is conceded. As the evidence shows that the Veteran was exposed to herbicide agents at the Korat RTAFB, the appellant is his biological child born after service, and the appellant has been diagnosed with a form or manifestation of spina bifida, other than spina bifida occulta, entitlement to a monetary allowance under 38 U.S.C. § 1805 for a child of a veteran born with spina bifida is granted. 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.