Citation Nr: 18160364
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 15-46 801
DATE:	December 27, 2018
ORDER
Entitlement to benefits under 38 U.S.C. § 1815 for a child born with birth defects is denied.

REMANDED
Entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida is remanded.

FINDING OF FACT
The appellant’s biological mother is not a Veteran.  

CONCLUSION OF LAW
The criteria for establishing benefits under the provisions of 38 U.S.C. § 1815 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 FINDING AND CONCLUSION
The Veteran served on active duty from June 1966 to April 1970, including service in the Republic of Vietnam during the Vietnam War era.  This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The appellant is the Veteran’s son.
The appellant has asserted that he is entitled to benefits under 38 U.S.C. § 1815 for birth defects for a child born to a Vietnam veteran.  In November 2011, the appellant applied for compensation for spina bifida, scoliosis, Arnold Chiari I/II, syringomyelia, neural tubular syrinx, and sensory loss due to his father’s exposure to herbicide agents in service.  The RO adjudicated his claim as a claim for benefits under 38 U.S.C. § 1805 for a child born with spina bifida, and as a claim for benefits under 38 U.S.C. § 1815 for a child born with birth defects.  
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.  See 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814; see also, e.g., 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).  Additionally, 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.  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).
In this case, the law is dispositive on the appellant’s claim for birth defects other than spina bifida under 38 U.S.C. § 1815.  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.  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 Vietnam 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 evidence does not show, and the appellant has not asserted, that his mother is a veteran.  As he is not the child of a biological mother who is a Vietnam veteran, the appellant does not qualify for a monthly allowance on the basis of birth defects, other than spina bifida.  38 U.S.C. §§ 1811, 1812, 1815; 38 C.F.R. § 3.815.  
Based on the foregoing, the appellant does not meet the requisite criteria for eligibility for benefits under 38 U.S.C. § 1815.  Without 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 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).  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).
REASONS FOR REMAND
The appellant asserts that he is entitled to a monetary allowance under the provisions of 38 U.S.C. § 1805 for a manifestation of spina bifida, including Chiari II malformation.  VA shall pay a monthly allowance, based upon the level of disability, to or for a person who VA has determined is an individual suffering from spina bifida whose biological mother or father is or was a Vietnam veteran.  38 U.S.C. § 1805(a); 38 C.F.R. § 3.814(a).  
The Veteran has verified service in the Republic of Vietnam from December 1966 to July 1968.  Therefore, he is presumed to have been exposed to herbicide agents.  38 C.F.R. § 3.814(c).
The Board finds that a VA examination is necessary to address whether the appellant has a diagnosis of spina bifida, other than spina bifida occulta.  For purposes of benefits under 38 U.S.C. § 1805, “the term “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).  In November 2011, the appellant applied for compensation for spina bifida, scoliosis, Arnold Chiari I/II, syringomyelia, neural tubular syrinx, and sensory loss.  A February 2012 private treatment record indicates the appellant has a medical history of spina bifida.  A June 1996 private treatment record reflects that the appellant had Chiari II malformation.  A February 2012 article submitted by the appellant indicates Chiari II malformation is a neurological complication associated with spina bifida.  As the evidence indicates the appellant may have been diagnosed with spina bifida and has been diagnosed with a condition associated with spina bifida, an examination is necessary to address whether the appellant has a diagnosis of spina bifida, other than spina bifida occulta. 
The matter is REMANDED for the following action:
Schedule the appellant for an examination by an appropriate clinician to determine the nature and etiology of the appellant’s spina bifida condition.  
The examiner must opine whether it is at least as likely as not (50 percent or greater possibility) that the appellant has a form or manifestation of spina bifida, except spina bifida occulta.  
The examiner should specifically note whether it is at least as likely as not that the appellant’s diagnosed Arnold Chiari II malformation is a form or manifestation of spina bifida. 
The examiner must provide a complete rationale for any opinion expressed.  If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.
 
M. SORISIO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Marenna, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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