Citation Nr: 21014559 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-16 873A DATE: March 15, 2021 ORDER Benefits under 38 U.S.C. § 1815 for a child born with birth defects is denied. REMANDED Benefits under 38 U.S.C. § 1805 for a child born with spina bifida.   FINDING OF FACT The appellant’s biological mother is not a veteran. CONCLUSION OF LAW 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 have not been met. 38 U.S.C. §§ 1811, 1812, 1815; 38 C.F.R. § 3.815. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1960 to May 1982, including service in the Republic of Vietnam during the Vietnam War era. The appellant is the Veteran’s biological child. In April 2017, the appellant submitted correspondence requesting an extension of time to file VA Form 9 to obtain additional medical evidence for a substantive appeal. The RO accepted the correspondence in lieu of the VA Form 9. The Board will accept the April 2017 correspondence in lieu of VA Form 9, because up until this point the claim has been treated by VA as timely appealed. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (in which the Court found the filing of a substantive appeal was permissive, the filing of the mandatory NOD allowed the Board to assume jurisdiction of the issues not included in the original substantive appeal). Therefore, the Board determines that it has jurisdiction to adjudicate this claim. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Benefits under 38 U.S.C. § 1815 for a child born with birth defects. Legal Criteria 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. 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. 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) 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). The term “spina bifida,” in the context of this law, is defined as “all forms and manifestations of spina bifida except spina bifida occulta.” 38 U.S.C. § 1802. See Jones, 16 Vet. App. at 226-227 (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).   Analysis The appellant has asserted that she is entitled to benefits as a child of a Vietnam veteran born with birth defects. In September 2013, the appellant applied for compensation for idiopathic scoliosis due to her father’s exposure to herbicide agents in service. The RO adjudicated her claim as a claim for benefits under 38 U.S.C. § 1805 for a child born with spina bifida, and as a claim for benefits under 38 U.S.C. § 1815 for a child born with birth defects. See September 2014 Notification Letter; see also 38 C.F.R. §§ 3.814-15. In this case, the law is dispositive on the appellant’s claim for birth defects other than spina bifida under 38 U.S.C. § 1815. Spina bifida is the only birth defect which warrants an award of monetary benefits based on the herbicide agent exposure of a Vietnam veteran who is the father of the child at issue. Jones, Vet. App. at 226-227. To qualify for a monthly allowance on the basis of other birth defects, the appellant must show that the Vietnam 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 evidence does not show, and the appellant has not asserted, that her mother is a veteran. As she is not the child of a biological mother who is a Vietnam veteran, the appellant does not qualify for a monthly allowance on the basis of birth defects, other than spina bifida. 38 U.S.C. §§ 1811, 1812, 1815; 38 C.F.R. § 3.815. Based on the foregoing, the appellant does not meet the requisite criteria for eligibility for benefits under 38 U.S.C. § 1815. Without a showing that the appellant’s mother is a Vietnam veteran, there is no legal basis on which to grant benefits in this instance. As such, the preponderance of the evidence is against the claim and benefits under 38 U.S.C. § 1815 are not warranted.   REASONS FOR REMAND Benefits under 38 U.S.C. § 1805 for a child born with spina bifida. The appellant has applied for benefits under the provisions of 38 U.S.C. § 1805 for a manifestation of spina bifida. VA shall pay a monthly allowance, based upon the level of disability, to or for a person who VA has determined is an individual suffering from spina bifida whose biological mother or father is, or was, a Vietnam veteran. 38 U.S.C.§ 1805(a); 38 C.F.R. § 3.814(a). The Veteran has verified service in the Republic of Vietnam from December 1966 to December 1967, and from August 1970 to June 1971. Therefore, he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.814(c). The Board finds that a VA examination is necessary to address whether the appellant has a diagnosis of spina bifida, other than spina bifida occulta. 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). The appellant submitted medical records that contain an August 1980 diagnosis of idiopathic scoliosis, and a May 1981 diagnosis of congenital anomalies of the lower limb. She contends that her scoliosis is secondary to spina bifida, and she was unable to be diagnosed with spina bifida at birth due to the lack of testing at that time. The appellant has also submitted a medical journal discussing the relationship between scoliosis and spina bifida in support of her claim. The Board observes that the appellant also completed releases for a USC student health center, and for her chiropractic doctor, Dr. L.P., that she has sought services for her spinal condition. The Board has thoroughly reviewed the evidence of record, and have not identified medical records from Dr. L.P. or the USC student health center, or a request for them. Given the importance of the diagnosis element in establishing benefits pursuant to 38 U.S.C. § 1805, the outstanding records of a treatment provider for her spine has a high likelihood of relevance, and a remand is required to allow VA to request these records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Ask the Veteran to identify any additional treatment providers, and to complete any new VA Forms 21-4142 that are necessary. Make two requests for the authorized records from Dr. L.P., the USC student health center, and any other records identified, unless it is clear after the first request that a second request would be futile. 2. Schedule the appellant for a VA examination by an appropriate clinician to determine the nature and etiology of the appellant’s neurological condition (or telehealth interview, records review, etc., if an in-person examination is not feasible). (Continued on the next page)   The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that the appellant has a form or manifestation of spina bifida, except spina bifida occulta. The examiner should provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, 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.