Citation Nr: A21019461 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 210723-175021 DATE: December 7, 2021 ORDER Entitlement to VA accrued benefits is denied. Entitlement to VA benefits under 38 U.S.C. § 1805 is denied. FINDINGS OF FACT 1. At the time of his death, the Veteran had no pending claims and there were no benefits that he was owed but had not been paid by VA. 2. The claimant does not have a form or manifestation of spina bifida. CONCLUSIONS OF LAW 1. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. 2. The criteria for establishing benefits under the provisions of 38 U.S.C. § 1805 have not been met. 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from April 1964 to December 1965. The Veteran passed away in February 2021, and the claimant is the Veteran's adult son. This matter comes before the Board of Veterans' Appeals (Board) from a July 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2021 VA Form 10182, Decision Review Request: Board Appeal, the claimant 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. 1. Entitlement to VA accrued benefits At the outset, the Board notes the RO's favorable finding that the claimant is eligible for the benefits sought on appeal, namely accrued benefits. See July 2021 Notification Letter. In order for an eligible claimant to be entitled to accrued benefits, there must be a claim or appeal pending before VA at the time of the Veteran's death. 38 U.S.C. §§ 5121(a), 5121A. An appeal pending before VA means that a notice of disagreement (NOD) was filed by the Veteran prior to his death, but the Board has not issued a final decision on the appeal before death. 38 C.F.R. § 3.1010(g)(1)(ii). The Board observes in this regard that the fundamental requirement to establish entitlement to accrued benefits is the existence of a pending claim for VA benefits which were due and unpaid to a Veteran at the time of the Veteran's death. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The claimant cannot meet this fundamental requirement for a successful accrued benefits claim because the Veteran had no pending claim for VA benefits and there were no VA benefits that he was owed by VA but had not been paid by VA at the time of his death. Id. Accordingly, the appellant's claim for accrued benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to VA benefits under 38 U.S.C. § 1805 The claimant also contends that he is entitled to disability compensation as he suffers from medical issues, namely sciatic nerve damage, asthma, and an acquired psychiatric disorder stemming from the Veteran's exposure to agent orange. See July 2021 VA Form 21-526EZ. 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. 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. The claimant does not allege, nor does the record indicate that his mother is a veteran of Vietnam. For purposes of benefits under 38 U.S.C. § 1805, "the term '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). See Jones v. Principi, 16 Vet. App. 219 (2002) (holding that the plain language of 38 U.S.C. § 1802 does not limit the definition to spina bifida per se but includes other "forms and manifestations" of spina bifida except for spina bifida occulta). Upon review of the record, to include the medical evidence submitted by the claimant in support of his claim, the Board finds no evidence of a diagnosis of spina bifida, nor does the claimant allege he suffers from spina bifida, and therefore there is no legal basis on which to grant benefits in this instance. The Board acknowledges the Veteran's honorable service to his country, including his service in Vietnam, and sympathizes with the claimant's alleged medical issues. However, it 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). Accordingly, the claim for benefits under 38 U.S.C. § 1805 is denied. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, Associate 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.