Citation Nr: 0427375 Decision Date: 10/04/04 Archive Date: 10/12/04 DOCKET NO. 03-18 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to benefits under 38 U.S.C.A. § 1805 for a child born with spina bifida. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and veteran's ex-wife ATTORNEY FOR THE BOARD Jason R. Davitian, Counsel INTRODUCTION The veteran served on active duty from June 1965 to July 1968. The appellant is the veteran's son. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC, which denied the benefit sought on appeal. The claims file is currently at the Denver, Colorado RO. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The veteran is not a "Vietnam veteran" within the meaning of the appropriate law and regulations. CONCLUSION OF LAW The claim for entitlement to benefits under 38 U.S.C.A. § 1805 for a child born with spina bifida is without legal merit. 38 U.S.C.A. § 1805(a) (West 2002); 38 C.F.R. § 3.814(a) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION There was a significant change during the appellant's claim with the enactment of the Veterans Claims Assistance Act of 2000 (the VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). VA has issued final regulations to implement these statutory changes. See C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003). These new provisions redefine the obligations of VA with respect to the duty to assist and include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. As to the appellant's claim for benefits under 38 U.S.C.A. § 1805 for a child born with spina bifida, for the reasons explained below, the facts are not in dispute and the claim is denied as a matter of law. The appellant has been notified, to include in a July 2001 rating decision and an April 2003 Statement of the Case, that the relevant statute requires service in Vietnam during the Vietnam War by the veteran parent. There is no dispute in this case as to whether the veteran served in Vietnam during the Vietnam War. The law and not the facts are dispositive in this case. Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include, but are not limited to, lack of legal eligibility. 38 C.F.R § 3.159(d). Any error concerning notice must be considered non-prejudicial because under the facts of this case, the appellant is not entitled to the benefit sought on appeal as a matter of law. Where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the decision, the case should not be remanded for development that could not possibly change the outcome of the decision. The failure to carry out such required development under those circumstances is non- prejudicial error under 38 U.S.C.A. § 7261(b) (in conducting review of BVA decision, the Court shall take due account of the rule of prejudicial error); cf. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (stating "strict adherence [to the law] does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case. Such adherence would result in this Court's unnecessarily imposing additional burdens on the BVA and [the Secretary] with no benefit flowing to the veteran"). See Valiao v. Principi, 17 Vet. App. 229 (2003). Furthermore, in VAOPGCPREC 5-2004 (June 23, 2004) the VA General Counsel held that VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts. The appellant is the veteran's son. The appellant concedes that the veteran did not serve in Vietnam. The appellant contends that the veteran was exposed to toxic substances at Elgin Air Force Base when he sorted through the baggage and personal effects of soldiers returning from Vietnam. According to the applicable law and regulations, 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). 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, to include service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam. See 38 C.F.R. § 3.814(c)(1). In this case, the evidence shows, and the appellant concedes, that the veteran did not have service in Vietnam for purposes of benefits under section 1805. Under the plain language of 38 U.S.C.A. § 1805(a), benefits are payable only for a child who has been determined to be suffering from spina bifida and who is a child of a Vietnam veteran. The Board finds that the conditions of the veteran's service at Elgin Air Force Base did not involve duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.814(c)(1). The undersigned was moved by the testimony presented by the appellant and his mother, who have pursued this claim for a number of years with the sincere belief that the deceased veteran was exposed to Agent Orange and that the appellant's spina bifida is causally linked to such exposure. However, the Board is bound by the applicable law and regulation, which mandates that a child with spina bifida must be of a Vietnam veteran and does not allow for any flexibility in finding who is a Vietnam veteran. As such, the Board has no legal authority to grant the appellant's claim for benefits under 38 U.S.C.A. § 1805 for a child born with spina bifida. The appellant is advised that he has a right to appeal this Board decision to the Court of Appeals for Veterans' Claims. See notice of appellate rights below. The undersigned would welcome a reversal of this Board decision if there is any way the law can be interpreted to allow for a favorable decision. Unfortunately, I cannot find any room in the applicable law and regulation to conclude that a child with spina bifida can be entitled to benefits when the veteran did not perform active military service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, to include service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam. Accordingly, the appellant's claim for entitlement to VA benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to benefits under 38 U.S.C.A. § 1805 for a child born with spina bifida is denied. ____________________________________________ R. F. WILLIAMS 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