Citation Nr: 22014407 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 18-23 285 DATE: March 12, 2022 ORDER Entitlement to benefits under 38 U.S.C. § 1805 for a child of a Vietnam veteran born with spina bifida is denied. Entitlement to benefits under 38 U.S.C. § 1815 for a child of a female Vietnam veteran born with other covered birth defects is denied. FINDINGS OF FACT 1. The appellant does not have 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, 1821, and 1822 for a child born with spina bifida are not met. 38 U.S.C. §§ 1116A, 1802, 1805, 1821, 1822; 38 C.F.R. § 3.814. 2. The criteria for establishing benefits under the provisions of 38 U.S.C. § 1815 for a child of a female Vietnam veteran who was born with other covered birth defects are not met. 38 U.S.C. §§ 1811, 1812, 1815; 38 C.F.R. § 3.815. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the son of a male Veteran. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied benefits under 38 U.S.C. § 1805 and 1815. In October 2021, VA afforded the appellant a hearing with the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. During the Board hearing, the undersigned VLJ advised the appellant and his representative that a medical diagnosis of spina bifida is required for benefits under 38 U.S.C. § 1805. The record was held open for an additional 30 days to allow the appellant the opportunity to locate a diagnosis of spina bifida in medical records and, if found, to associate the evidence of diagnosis with the claims file. The representative stated he would provide records with a diagnosis or provide a brief statement that no diagnosis of spina bifida was found within the 30 days; however, no additional evidence was received. The case now returns to the Board for appellate consideration. 1. Entitlement to benefits under 38 U.S.C. § 1805 for a child of a Vietnam veteran born with spina bifida is denied. 2. Entitlement to benefits under 38 U.S.C. § 1815 for a child of a female Vietnam veteran born with other covered birth defects is denied. The appellant contends that he has birth defects, including loss of blood supply to genitals, a herniated diaphragm, an enlarged liver, and spina bifida due to his father's (the deceased Veteran's) exposure to herbicide agents while on active duty at Ft. Polk in Louisiana and Ft. Chaffee in Arkansas. See VA 21-0304 Application for Spina Bifida Benefits Chapter 18 (August 2012); and Board Hearing Transcript (October 2021). 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; 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). In addition, VA will provide certain benefits for an individual with a disability for 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). 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). "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)(3). 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. In this case, in the August 2012 claim, the appellant specifically noted that his mother did not have service in Vietnam. At the October 2021 hearing, the Veteran asserted his father (the Veteran) was exposed to herbicide agents at Ft. Polk and Ft. Chaffee. As noted above, 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. As the appellant's mother did not have qualifying Vietnam service, benefits are not warranted for the disabilities of loss of blood supply to genitals, a herniated diaphragm, and an enlarged liver. Based on the facts in this case, the appellant does not meet the requisite criteria for eligibility to benefits under 38 U.S.C. § 1805 or §1815. Without any finding of spina bifida or a showing that the appellant's mother is a Vietnam veteran, there is no legal basis on which to grant benefits in this instance. The appellant has not asserted, and the record does not reflect, that he has any form of spina bifida and/or manifestation of spina bifida. There is no competent evidence showing spina bifida. The Board 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 law is dispositive of the issues on appeal; the claims must be denied as a matter of law because of the absence of legal merit or entitlement. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). J. PARKER 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.