Citation Nr: 21041226 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-48 050 DATE: July 8, 2021 ORDER Compensation under 38 U.S.C. §§ 1805 and 1815 for a child of a Vietnam veteran born with spina bifida or covered birth defects is denied. FINDINGS OF FACT 1. The appellant does not have a diagnosis of spina bifida. 2. The appellant's mother is not a Vietnam veteran. CONCLUSIONS OF LAW 1. The criteria for establishing benefits under the provisions of 38 U.S.C. § 1805 for a child of a Vietnam veteran born with spina bifida have not been met. 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814. 2. The criteria for establishing benefits under the provisions of 38 U.S.C. § 1805 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to April 1971. His awards and decorations include the Combat Infantryman Badge, the Army Commendation Medal, the Air Medal, and the Vietnam Service Medal with one Bronze Star. The appellant is the Veteran's biological son. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the appellant was scheduled for a hearing in June 2021; however, at the appellant's request, this hearing was cancelled. While the record shows that several notification letters from VA have been returned as undeliverable, the most recent notification letter informing the appellant of the June 2021 hearing was delivered. The appellant has not provided an updated mailing address, and he is reminded that he has a duty to keep VA apprised of his current address. Jones v. West, 12 Vet. App. 98 (1998). Entitlement to compensation under 38 C.F.R. §§ 3.814 and 3.815 for a child born with spina bifida or covered birth defects. The appellant contends he has physical and psychological conditions, to include scoliosis, hypertension, gastroesophageal reflux disorder (GERD), bipolar disorder, and a thyroid disorder, as a result of his father's exposure to herbicide agents in the Republic of Vietnam. See August 2018 notice of disagreement. 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 and Korea. 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. See 38 U.S.C. §§ 1805, 1821; 38 C.F.R. § 3.814. VA will also provide certain benefits for an individual with a disability from certain birth defects whose mother is a Vietnam veteran. See 38 U.S.C. § 1815; 38 C.F.R. § 3.815. Here, the record shows that the appellant's father had herbicide agent exposure in the Republic of Vietnam. The record does not show that the appellant's mother is a Vietnam Veteran. Notably, the appellant does not contend that his mother is a Vietnam Veteran. Rather, the appellant contends that compensation for his physical and psychological disabilities is warranted because of his father's herbicide agent exposure during active military service. The law is dispositive on the appellant's claim for birth defects other than spina bifida. Although the appellant has asserted that he has scoliosis, hypertension, GERD, bipolar disorder, and a thyroid disorder as a result of his father's exposure to herbicide agents during active military service, 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). Although the appellant's father was found to be exposed to herbicide agents during his honorable military service, the appellant has not asserted, and the evidence does not show, that he has a diagnosis of spina bifida. 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. As the appellant is not the child of a biological mother who is a veteran who had qualified service in Vietnam, he does not qualify for a monthly allowance on the basis of birth defects other than spina bifida. Furthermore, the record fails to show that the appellant was diagnosed with covered birth defects when he was born. 38 U.S.C. § 1815; 38 C.F.R. § 3.815. Based on the foregoing, the appellant does not have a diagnosis of spina bifida and, therefore, does not meet the criteria for benefits under 38 C.F.R. § 3.814. Additionally, 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 under 38 C.F.R. § 3.815. Accordingly, there is no legal basis to grant benefits in this instance. 38 U.S.C. §§ 1805, 1815; 38 C.F.R. §§ 3.814, 3.815. The Board acknowledges the appellant is the son of a Veteran who had honorable service to his country. Moreover, the Board is sympathetic to the appellant's claims and to the medical hardships he has endured throughout his life. The Board, however, is constrained by the applicable laws in this matter. 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). Essentially, the Board is without authority to grant benefits to a claimant that has no basis under statutory law. See 38 U.S.C. § 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It is noted that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Accordingly, as the law is dispositive of the issue on appeal, 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, 430 (1994). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffin, 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.