Citation Nr: 21015096 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-44 738 DATE: March 16, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1805 for a child born with spina bifida is denied. FINDING OF FACT The appellant is this biological daughter of a Vietnam War veteran; the appellant’s biological mother is not a Vietnam Veteran; and the appellant does not have spina bifida. CONCLUSION OF LAW 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. §§ 1802, 1805; 38 C.F.R. § 3.814. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to September 1967, during the Vietnam War era. The appellant is the Veteran’s biological daughter. This matter comes before the Board of Veterans’ Appeals on appeal from a September 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO). See Notification Letter (September 2015). In July 2017, the appellant requested a videoconference hearing. The appellant’s attorney requested to change the type of hearing, electing a virtual hearing in the alternative. In February 2021, the record reflects that the appellant’s attorney appeared at the scheduled hearing; however, the appellant did not. The attorney asserted she had not had contact with the appellant. Therefore, the appellant’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Entitlement to a monetary allowance under 38 U.S.C. § 1805 for a child born with spina bifida of a Vietnam Veteran The appellant asserts she is entitled to a monthly allowance as she was diagnosed with cauda equinox with spinal irregularities. She asserts she was told by, at least, one physician that her condition and symptoms were consistent with spina bifida. She asserts that her father had service in Vietnam, but her mother did not. Since she believes her condition is consistent with spina bifida, she seeks a monetary allowance under 38 U.S.C. §§ 1805. See VA Form 9 (July 2017) and VA 21-0304 Application for Spina Bifida Benefits (1-2) (July 2014) VA will provide certain benefits for an individual with spina bifida whose biological father or mother is a Vietnam Veteran. See 38 U.S.C. §§ 1802, 1805; 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). To qualify for a monthly allowance for birth defects other than spina bifida, the appellant must show that the Vietnam Veteran who was exposed to herbicide agents is the appellant’s biological mother. 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 Vietnam Veteran who is the father of the child at issue. See Jones, 16 Vet. App. at 219. 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. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). In this case, the record indicates the appellant filed two applications for a monetary allowance. In those applications, the appellant asserted she has a diagnosis of spina bifida as well as a number of other diagnoses, including as follows: sacral and dural tube stenosis, autoimmune disease of white blood cells, fibromyalgia, genetic Mannose-binding lectin protein, agent orange syndrome, vulvodynia, coccyx pain, low MRI genetic morphism white blood cell cauda equina syndrome, past paralysis, whole spine vibrations, symptoms of cervical stenosis not yet seen on MRI, spinal cord deformity, sacrum not fully formed, positive Chiari formation (brain) with Hoffman’s sign, spinal cord defect, left ear deformity (aesthetic), decrease space of spinal cord, twisting anomaly of spinal cord, curvature, spinal cord rotation, lower back, anomaly of sacrum bones, and vulvar vestibulitis. See VA 21-0304 Application for Spina Bifida Benefits (1-2) (July 2014). Military personnel records show the appellant’s father served during the Vietnam War. The appellant provided a birth certificate confirming she is his biological daughter, conceived after his return from service. Yet, to date, the appellant has not provided any medical evidence that confirms she was born with spina bifida or any other birth defect. Based on the foregoing, the evidence is against a finding that the appellant has or ever had spina bifida or any other birth defect. As such, she does not meet the criteria for benefits under 38 U.S.C. § 1805. The Board has considered the appellant’s statements that cauda equinox with spinal irregularities is “consistent” with spina bifida. See Form 9 (July 2017). The diagnosis of spina bifida is, however, a complex medical question that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, her statements as to having been diagnosed with spina bifida have no probative value. It is noted that VA afforded the appellant an opportunity to provide VA with authorization to obtain those private medical records she identified a supporting her report of having spina bifida. However, she did not return the authorization as requested. See Correspondence (April 2017); VA Form 27-0820 (attorney request for an extension to submit authorization for release of private treatment records) (May 2017). VA’s duty to assist in the development of a claim is not a one-way street; claimants are expected to cooperative in the development of their claims. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Although not contended, the Board notes that the appellant is not 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 Veteran, benefits may be granted only for spina bifida, other than spina bifida occulta. The law does not provide flexibility in this case for other birth defects. In sum, the appellant does not meet the requisite criteria for eligibility for benefits under 38 U.S.C. § 1805. Because the appellant does not have spina bifida, there is no legal basis upon which to grant benefits. The Board acknowledges the Veteran’s honorable service to his country. 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). 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). Accordingly, the claim is denied. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pendleton, N. 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.