Citation Nr: 22048643 Decision Date: 08/25/22 Archive Date: 08/25/22 DOCKET NO. 18-32 040 DATE: August 25, 2022 ORDER Benefits under 38 U.S.C. §§ 1805, 1821, and 1822 for a child born with spina bifida are denied. Benefits under 38 U.S.C. § 1815 for a child born with other covered birth defects are denied. FINDING OF FACT 1. The appellant does not have a form or manifestation of spina bifida other than spina bifida occulta. 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 have not been 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 whose mother is a Vietnam Veteran and who was 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 in the U.S. Army from December 1965 to December 1967. The appellant is the Veteran's child. In March 2022, the appellant was afforded a hearing before the undersigned Veterans Law Judge. Entitlement to benefits under 38 U.S.C. §§ 1805, 1815, 1821, or 1822 for spina bifida or other covered birth defects. VA will provide certain benefits for an individual with spina bifida whose biological father or mother served in Vietnam, or whose father had covered service in the Korean Demilitarized Zone (DMZ) or in Thailand. See 38 U.S.C. §§ 1802, 1805, 1821, 1822; 38 C.F.R. § 3.814. For the purposes of this sections, 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). 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. To qualify for a monthly allowance for birth defects other than spina bifida, the appellant must show that his or her mother is a Vietnam Veteran. 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). Service in the Republic of Vietnam also includes service within the 12 nautical mile territorial sea of Vietnam. 38 U.S.C. § 1116A; see also Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). A Veteran with covered service in Korea means a person who served in the active military, naval, or air service in or near the Korean DMZ between September 1, 1967, and August 31, 1971, and who is determined to have been exposed to an herbicide agent during such service. Exposure to an herbicide agent will be conceded if the Veteran served between April 1, 1968, and August 31, 1971, in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1821; 38 C.F.R. § 3.814(c)(2). A Veteran with covered service in Thailand is a Veteran who served in the active military, naval, or air service in Thailand during the period beginning on January 9, 1962, and ending on May 7, 1975, and is determined to have been exposed to an herbicide agent during such service in Thailand. 38 U.S.C. § 1822. The appellant is the Veteran's biological daughter. An August 1999 newspaper article states that the Veteran served in the Republic of Vietnam, but VA has not verified that information from either the appellant or in the Veteran's file and no military personnel records have been associated with the files. On September 2014, February 2015, and December 2015 applications for spina bifida benefits forms, the appellant reported that her mother is not a Vietnam Veteran. This information does not refute the reports that the Veterans served in Vietnam, and such a finding might have been made on a "facts found" basis if this was relevant to the claim here. As it is not relevant to the findings made in this decision because the appellant does not have a diagnosis of spina bifida, the Board will not address this issue nor make any findings in this regard. The record reflects that the appellant does not have spina bifida. On her three applications for benefits, she stated that she was born with a premature and deformed hand and with no fingers. The appellant submitted many private treatment records which also do not show a diagnosis of spina bifida. A March 2016 record states that she was born with a right-hand deformity. At her March 2022 Board hearing, the appellant testified that she had a birth defect of a premature hand, and that she had no other birth defects. It is significant here to point out that the appellant has never contended that she has spina bifida. As the appellant does not have a diagnosis of spina bifida and, therefore, does not meet the criteria for benefits under 38 U.S.C. § 1805. Additionally, the appellant has not asserted that she is 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 Veteran is the appellant's father, benefits may be granted only for spina bifida, which is defined as any form and manifestation of spina bifida except spina bifida occulta. The law does not provide flexibility in this case and no other disorders are subject to VA compensation. Because the appellant does not have spina bifida, there is no legal basis upon which to grant benefits. 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). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, 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.