Citation Nr: 0421724	
Decision Date: 08/09/04    Archive Date: 08/17/04

DOCKET NO.  02-15 222A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Denver, 
Colorado


THE ISSUE

Entitlement to benefits, including a monetary allowance as a 
child of a Vietnam veteran born with spina bifida. 


REPRESENTATION

Appellant represented by:	North Carolina Division of 
Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and her sister



ATTORNEY FOR THE BOARD

Dennis F. Chiappetta, Counsel


INTRODUCTION

The appellant is the widow of a veteran who served from July 
1969 to March 1973, including service in Vietnam during the 
Vietnam War.  She brings this claim on behalf of their 
natural daughter.  This matter comes before the Board of 
Veterans' Appeals (Board) on appeal from a March 2002 rating 
decision of the Department of Veterans Affairs (VA) Regional 
Office (RO) in Denver, Colorado.  In December 2003, the 
appellant testified at a Travel Board Hearing before the 
undersigned at the Winston-Salem, North Carolina, RO


FINDINGS OF FACT

1.  The veteran served in Vietnam during the Vietnam era and 
is presumed to have been exposed to herbicide agents.

2.  There is no competent evidence that the child of the 
veteran has spina bifida, and it is not otherwise alleged.


CONCLUSION OF LAW

The claim for benefits as a child of a Vietnam veteran born 
with spina bifida is legally insufficient.  38 U.S.C.A. §§ 
1805, 5107(b) (West 2002); 38 C.F.R. § 3.814 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminary Matters 

The Board has considered the applicability of the Veterans 
Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. 
§§ 5102, 5103, 5103A, 5107).  Regulations implementing the 
VCAA are published at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a).  

The United States Court of Appeals for Veterans Claims (the 
Court) has held that the statutory and regulatory provisions 
pertaining to VA's duty to notify/assist do not apply to a 
claim if resolution of the claim is based on statutory 
interpretation, rather than consideration of the factual 
evidence.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 
(2001); see also Mason v. Principi, 16 Vet. App. 129, 132 
(2002) [VCAA not applicable "because the law as mandated by 
statute, and not the evidence, is dispositive of the claim".]  
In the instant case, the pertinent facts are not in dispute.  
Resolution of the appeal is dependent upon whether the 
benefit sought may be granted in the absence of a medical 
diagnosis of spina bifida.  The determination that must be 
made is strictly a legal one, and under the Court's 
guidelines noted above, the VCAA does not apply.   

Factual Background

The deceased veteran served in Vietnam during the Vietnam era 
and is presumed to have been exposed to herbicide agents.

Medical records from 1972 document that the child of the 
veteran and appellant had microcephaly in the first months of 
her life and was found to be developmentally behind.  

A March 1990 MRI of the brain was grossly normal.

A September 1992 psychological evaluation notes that the 
appellant's child is mentally retarded secondary to 
microcephaly attributable to congenital toxoplasmosis.  

In a June 2000 letter, J.D., M.D., relates that the 
appellant's child suffered exposure to toxoplasmosis in 
utero, and as a consequence is severely mentally retarded, 
has suffered from a seizure disorder, and has cerebral palsy 
and microcephaly.  

A June 2000 office note of AOS, M.D., reflects that the 
appellant's daughter was found to have "static" 
encephalopathy apparently secondary to toxoplasmosis and 
mononucleosis at the age of six months.  He could see no 
indication that she has spina bifida.  He reiterated that 
opinion in a letter dated on the following day.

In February, April, and November 2001, the appellant filed 
three separate VA Form 21-0304, Applications for Spina Bifida 
Benefits, on behalf of her daughter.  On each Form, she 
checked the box next to "no", when asked "Has the child 
been diagnosed with spina bifida."

In a September 2002 statement, the appellant argued that her 
daughter's brain damage was caused by her husband's exposure 
to Agent Orange while in Vietnam.  She asserted that her 
daughter has all of the characteristics, symptoms, and 
physical deformities associated with Spina Bifida, without 
the formal diagnosis. 

During her December 2003 hearing, the appellant testified 
that her daughter's doctors had not diagnosed spina bifida.  



Analysis

VA shall pay a monthly allowance, based upon the level of 
disability, to or for a child who has been determined to be 
suffering from spina bifida and who is a child of a Vietnam 
veteran.  38 U.S.C.A. § 1805(a); 38 C.F.R. § 3.814(a).  
"Spina bifida" means any form and manifestation of spina 
bifida except spina bifida occulta.  38 U.S.C.A. § 1802; 38 
C.F.R. § 3.814(c)(3).  The Board notes that spina bifida is 
the only birth defect that warrants the award of monetary 
benefits based on the herbicide exposure of the veteran as a 
father of that child.  Jones v. Principi, 16 Vet. App. 219 
(2002).

In a precedent opinion, VAOPGCPREC 5-99 (May 3, 1999), VA's 
General Counsel held that 38 U.S.C.A. § 1802 applies to all 
forms of spina bifida other than spina bifida occulta, and 
that for purposes of that chapter 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.  The Board is bound by 
the precedent opinions of VA's General Counsel. 38 U.S.C.A. § 
7104(c).

As was noted, the critical facts are not in dispute:  
Briefly, the child of the veteran and the appellant has 
disability due to congenital toxoplasmosis.  Some symptoms 
noted are similar to those found with some forms of spina 
bifida.  Spina bifida itself has not been diagnosed, and 
there is nothing in the medical evidence to suggest that the 
child indeed has spina bifida.  

The question before the Board is narrow and straight-forward: 
Is a child with the type of disability shown here entitled to 
benefits as a child of a Vietnam veteran born with spina 
bifida?  

The governing law and regulations are unambiguous; they make 
no provision for granting the benefits sought in the absence 
of a diagnosis of spina bifida.  See Jones, supra; see also 
VAOPGCPREC 5-99, supra.  The law is dispositive; the Board 
must deny the claim on the ground of the lack of entitlement 
under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 
(1994).


ORDER

Entitlement to benefits, including a monetary allowance, as a 
child of a Vietnam veteran born with spina bifida, is denied.



	                        
____________________________________________
	George R. Senyk
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is 
the final decision for all issues addressed in the "Order" section of the 
decision.  The Board may also choose to remand an issue or issues to the 
local VA office for additional development.   If the Board did this in your 
case, then a "Remand" section follows the "Order."  However, you cannot 
appeal an issue remanded to the local VA office because a remand is not a 
final decision. The advice below on how to appeal a claim applies only to 
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do 
anything.  We will return your file to your local VA office to implement 
the BVA's decision.  However, if you are not satisfied with the Board's 
decision on any or all of the issues allowed, denied, or dismissed, you 
have the following options, which are listed in no particular order of 
importance: 
?	Appeal to the United States Court of Appeals for Veterans Claims 
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision 
?	File with the Board a motion for revision of this decision based on 
clear and unmistakable error. 
Although it would not affect this BVA decision, you may choose to also: 
?	Reopen your claim at the local VA office by submitting new and 
material evidence. 
There is no time limit for filing a motion for reconsideration, a motion to 
vacate, or a motion for revision based on clear and unmistakable error with 
the Board, or a claim to reopen at the local VA office.  None of these 
things is mutually exclusive - you can do all five things at the same time 
if you wish.  However, if you file a Notice of Appeal with the Court and a 
motion with the Board at the same time, this may delay your case because of 
jurisdictional conflicts. If you file a Notice of Appeal with the Court 
before you file a motion with the BVA, the BVA will not be able to consider 
your motion without the Court's permission. 

How long do I have to start my appeal to the Court?  You have 120 days from 
the date this decision was mailed to you (as shown on the first page of 
this decision) to file a Notice of Appeal with the United States Court of 
Appeals for Veterans Claims.  If you also want to file a motion for 
reconsideration or a motion to vacate, you will still have time to appeal 
to the Court.  As long as you file your motion(s) with the Board within 120 
days of the date this decision was mailed to you, you will then have 
another 120 days from the date the BVA decides the motion for 
reconsideration or the motion to vacate to appeal to the Court.  You should 
know that even if you have a representative, as discussed below, it is your 
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?  
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for 
filing a Notice of Appeal, the filing fee (or a motion to waive the filing 
fee if payment would cause financial hardship), and other matters covered 
by the Court's rules directly from the Court. You can also get this 
information from the Court's web site on the Internet at 
www.vetapp.uscourts.gov, and you can download forms directly from that 
website.  The Court's facsimile number is (202) 501-5848. 

To ensure full protection of your right of appeal to the Court, you must 
file your Notice of Appeal with the Court, not with the Board, or any other 
VA office. 

How do I file a motion for reconsideration? You can file a motion asking 
the BVA to reconsider any part of this decision by writing a letter to the 
BVA stating why you believe that the BVA committed an obvious error of fact 
or law in this decision, or stating that new and material military service 
records have been discovered that apply to your appeal. If the BVA has 
decided more than one issue, be sure to tell us which issue(s) you want 
reconsidered. Send your letter to: 
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA 
FORM
JUN 
2003 
(RS) 
 
4597
Page 
1
CONTINUED



Remember, the Board places no time limit on filing a motion for 
reconsideration, and you can do this at any time. However, if you also plan 
to appeal this decision to the Court, you must file your motion within 120 
days from the date of this decision. 

How do I file a motion to vacate? You can file a motion asking the BVA to 
vacate any part of this decision by writing a letter to the BVA stating why 
you believe you were denied due process of law during your appeal. For 
example, you were denied your right to representation through action or 
inaction by VA personnel, you were not provided a Statement of the Case or 
Supplemental Statement of the Case, or you did not get a personal hearing 
that you requested. You can also file a motion to vacate any part of this 
decision on the basis that the Board allowed benefits based on false or 
fraudulent evidence.  Send this motion to the address above for the 
Director, Management and Administration, at the Board.  Remember, the Board 
places no time limit on filing a motion to vacate, and you can do this at 
any time. However, if you also plan to appeal this decision to the Court, 
you must file your motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis of clear 
and unmistakable error? You can file a motion asking that the Board revise 
this decision if you believe that the decision is based on "clear and 
unmistakable error" (CUE).  Send this motion to the address above for the 
Director, Management and Administration, at the Board. You should be 
careful when preparing such a motion because it must meet specific 
requirements, and the Board will not review a final decision on this basis 
more than once. You should carefully review the Board's Rules of Practice 
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified 
representative before filing such a motion. See discussion on 
representation below. Remember, the Board places no time limit on filing a 
CUE review motion, and you can do this at any time. 

How do I reopen my claim? You can ask your local VA office to reopen your 
claim by simply sending them a statement indicating that you want to reopen 
your claim.  However, to be successful in reopening your claim, you must 
submit new and material evidence to that office. See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes. You can always represent 
yourself in any claim before VA, including the BVA, but you can also 
appoint someone to represent you.  An accredited representative of a 
recognized service organization may represent you free of charge.  VA 
approves these organizations to help veterans, service members, and 
dependents prepare their claims and present them to VA. An accredited 
representative works for the service organization and knows how to prepare 
and present claims. You can find a listing of these organizations on the 
Internet at: www.va.gov/vso.  You can also choose to be represented by a 
private attorney or by an "agent." (An agent is a person who is not a 
lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than before 
VA, then you can get information on how to do so by writing directly to the 
Court.  Upon request, the Court will provide you with a state-by-state 
listing of persons admitted to practice before the Court who have indicated 
their availability to represent appellants.  This information is also 
provided on the Court's website at www.vetapp.uscourts.gov. 

Do I have to pay an attorney or agent to represent me?  Except for a claim 
involving a home or small business VA loan under Chapter 37 of title 38, 
United States Code, attorneys or agents cannot charge you a fee or accept 
payment for services they provide before the date BVA makes a final 
decision on your appeal. If you hire an attorney or accredited agent within 
1 year of a final BVA decision, then the attorney or agent is allowed to 
charge you a fee for representing you before VA in most situations.  An 
attorney can also charge you for representing you before the Court.  VA 
cannot pay fees of attorneys or agents. 

Fee for VA home and small business loan cases:  An attorney or agent may 
charge you a reasonable fee for services involving a VA home loan or small 
business loan.  For more information, read section 5904, title 38, United 
States Code. 

In all cases, a copy of any fee agreement between you and an attorney or 
accredited agent must be sent to: 

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for 
reasonableness, or you or your attorney or agent can file a motion asking 
the Board to do so. Send such a motion to the address above for the Office 
of the Senior Deputy Vice Chairman at the Board. 


VA 
FORM
JUN 
2003 
(RS) 
 
4597
Page 
2