Citation Nr: 21029700 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-51 422 DATE: May 14, 2021 ORDER Entitlement to benefits under 38 U.S.C. §§ 1805 or 1815 for birth defects of a child born to a Veteran exposed to herbicide agents in Vietnam is denied. FINDINGS OF FACT 1. The appellant's father did not serve in the Republic of Vietnam, including the territorial waters of Vietnam. 2. The appellant's mother is not a Veteran. CONCLUSION OF LAW The criteria for establishing entitlement to benefits under § 38 U.S.C. §§ 1805 or 1815 for birth defects, including spina bifida, have not been met. 38 U.S.C. §§ 1116A, 1802, 1805, 1815; 38 C.F.R. § 3.814, 3.815. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served in the U.S. Army from September 1998 to March 1999. Her father served in the U.S. Navy from September 1964 to November 1966 and in the U.S. Army from June 1968 to June 1970. The appellant's father died in 2014. This matter comes before the Board of Veterans' Appeals (Board) from an April 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office. This case was previously before the Board in February 2020 and remanded for additional development. Entitlement to benefits under 38 U.S.C. §§ 1805 or 1815 for birth defects of a child born to a Veteran exposed to herbicide agents in Vietnam The appellant has asserted that she has spina bifida due to her father's exposure to herbicide agents in Vietnam. 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). 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). The Board notes that "service in the waters offshore" the Republic of Vietnam has not been defined for purposes of 38 C.F.R. § 3.814(c)(1). However, in the absence of any other reference, the Board will apply the definition provided expanded definition of Vietnam Veteran as defined in 38 U.S.C. § 1116A and Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), which defines such service as that which occurred within 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting listed locations ("covered Blue Water area" or "within 12 nautical miles"). 38 U.S.C. § 1116A; see also Procopio, 913 F.3d at 1371. 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 appellant is the Veteran's biological daughter conceived after service. She has not asserted that her mother served in the military. Therefore, she may only qualify for benefits under 38 U.S.C. § 1805 based on her father's service. A November 2020 VA examiner opined that the appellant has a form or manifestation of spina bifida, other than spina bifida occulta. Therefore, the evidence supports a finding that the appellant has spina bifida. However, the evidence of record does not show that the Veteran had service in Vietnam or in the waters of Vietnam during the Vietnam era. In this case, Veteran's service personnel records include a typed note that he served in Germany from January 1969 to April 1970. Below the note indicating 15 months of service in Germany, the record has handwritten notes that indicate that from August 1964 to November 1964, he had "Japan (Sea Duty USN)," and from November 1964 to November 1966, he had "Vietnam (Sea Duty USN). The Veteran's personnel records and medical treatment records do not note any service in Vietnam or the waters of Vietnam. A DD Form 214 for the Veteran's service from September 1964 to November 1966 and a DD Form 214 for the Veteran's service from September 1966 to November 1966 note no foreign and/or sea service. A DD Form 214 from June 1968 to June 1970 notes foreign and/or sea service in Germany. An abstract of the Veteran's service and medical history reflects that between November 1964 and November 1966, the Veteran was stationed in Kansas, Illinois, and California. The records do not indicate any foreign service other than Germany. The Veteran's service treatment records also do not indicate he had service in Vietnam or a ship in the waters of Vietnam. They reflect that he was stationed at bases in the United States and Germany. In a January 2021 memorandum, the RO found that exposure to herbicides could not be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The appellant was notified of this finding in a January 2021 Supplemental Statement of the Case and in a January 2021 response indicated she had no further evidence to submit. Although the Veteran's personnel records include a handwritten note of "Vietnam (Sea Duty USN)," this is inconsistent with the rest of his service personnel and treatment records which indicate that his only foreign service was in Germany. The Veteran's service personnel records do not indicate service in Vietnam or a ship in the waters of Vietnam. In an October 2010 statement, the appellant referenced her "Father's missions in Vietnam." However, she has not submitted any additional information regarding his contended service in Vietnam. Therefore, her statement has limited probative value. The Board finds that the evidence does not show that the Veteran had verified service in Vietnam during the Vietnam era. The Board is sympathetic to the appellant's medical conditions and grateful for her father's honorable service to his country. However, it must apply the law as promulgated and is bound by VA regulations. As neither the appellant's mother nor father served in Vietnam, entitlement to benefits under 38 U.S.C. §§ 1805 or 1815 is not warranted and the claim must be denied. Nathaniel J. Doan 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.