Citation Nr: 0005399	
Decision Date: 02/29/00    Archive Date: 03/07/00

DOCKET NO.  98-08 701	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to a monetary allowance for a child suffering 
from spina bifida, on the basis of the veteran's service in 
Vietnam, under 38 U.S.C.A. § 1805 and 38 C.F.R. § 3.814.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A.D. Jackson, Counsel



INTRODUCTION

The veteran has verified active service from February 1974 
until June 1985 with nine years and 3 months of prior active 
duty service.  This matter came before the Board of Veterans' 
Appeals (Board) on appeal from a rating decision of the St. 
Petersburg, Florida, Regional Office (RO) of the Department 
of Veterans Affairs (VA).  


FINDINGS OF FACT

The veteran's son has been diagnosed with spina bifida 
occulta.


CONCLUSION OF LAW

The veteran has not submitted a well-grounded claim for 
entitlement to a monetary allowance for a child suffering 
from spina bifida, on the basis of the veteran's service in 
Vietnam.  38 U.S.C.A. § 1805 , 5107 (West 1991); 38 C.F.R. § 
3.814 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In June 1996, the veteran wrote to the RO seeking information 
regarding compensation for birth defects affecting his 
children.  He subsequently narrowed his claim in this regard 
on the VA Form 21-0304 he submitted in August 1997, when he 
argued that he should be awarded an allowance for his son who 
suffers from spina bifida.  Moreover, the Board finds that 
the veteran has submitted sufficient documentation, including 
a birth certificate of the child and a statement from the 
child's treating physician, so as to substantially satisfy 
all of the informational requirements of a VA Form 21-0304 
Application for Spina Bifida Benefits.  The Board accordingly 
finds that the initial requirement of a satisfactory 
application for monetary benefits under 38 U.S.C.A. § 1805, 
as designated in 38 C.F.R. § 3.814 (1999), are met.

The veteran contends, in effect, that as a result of his 
herbicide exposure in service in Vietnam, his son was born 
with the birth defect spina bifida.  He therefore contends, 
in effect, that entitlement to a monetary allowance under 
38 U.S.C.A. § 1805 is warranted.

The law provides that "a person who submits a claim for 
benefits under a law administered by the Secretary shall have 
the burden of submitting evidence sufficient to justify a 
belief by a fair and impartial individual that the claim is 
well grounded."  38 U.S.C.A. § 5107(a) (West 1991).  Under 
applicable criteria, VA shall pay a monthly allowance for a 
child who it is determined is suffering from spina bifida and 
who is a child of a Vietnam veteran.  38  U.S.C.A. § 1805 and 
38 C.F.R. § 3.814.  The term spina bifida means any form and 
manifestation of spina bifida except spina bifida occulta.  
38 C.F.R. § 3.814(c)(3) (1999).  Spina bifida is "a 
congenital cleft of the vertebral column with hernial 
protrusion of the meninges"; meninges are more than one of 
the three membranes that envelop the brain and spinal cord, 
Webster's Medical Desk Dictionary 667, 422 (1986); Godfrey v. 
Brown, 7 Vet. App. 398, 401 (1995).  

As pointed out in a memorandum by General Counsel in 1999: 

According to the March of Dimes, spina 
bifida is a birth defect of the backbone 
and, sometimes, the spinal cord, that is 
often called "open spine."  It can 
range from a mild defect that causes no 
problems to a serious condition involving 
muscle paralysis, infection, and loss of 
bowel and bladder control.  It is our 
understanding that the term spina bifida 
generally is considered to encompass 
three main conditions:  (A) spina bifida 
occulta, which is an opening in one or 
more of the bones of the spinal column 
and which does not involve any damage to 
the spinal cord (this form of spina 
bifida is expressly excluded by 38 U.S.C. 
§ 1802 from application of the provisions 
of chapter 18).... VAOPCPREC 05-99, at 1-
2, 64 Fed. Reg. 52375 (1999).

Service records show that the veteran did serve on active 
duty in Vietnam during the Vietnam Era, and hence is a 
Vietnam veteran.  38 C.F.R. § 3.814(c)(1) (1999).  The claims 
file contains a magnetic resonance imaging report of the 
veteran's son's spine dated in April 1996.  This report shows 
the transitional vertebrae, which was designated as L-5, 
displayed spina bifida.  In addition, a June 1997 surgical 
report showing that the veteran's son underwent posterior 
spinal fusion from the T-4 to L-4 vertebrae also noted that 
the veteran's son had spina bifida occulta at L5.    

On the basis of this medical evidence, it is the Board's 
conclusion that the veteran's son has spina bifida occulta.  
Spina bifida occulta is specifically precluded from being the 
subject of compensation benefits under 38 U.S.C.A. § 1805.  
Accordingly, in the absence of evidence of the disability 
upon which payments under 38 U.S.C.A. § 1805; 38 C.F.R. § 
3.814 may be based, the veteran has failed to satisfy the 
requirements of a well-grounded claim.  As claims that are 
not well grounded do not present a question of fact or law 
over which the Board has jurisdiction, the claim for an award 
of a monetary allowance under the provisions of 38 U.S.C.A. 
§ 1805 and 38 C.F.R. § 3.814 must be denied.



ORDER

Entitlement to a monetary allowance under 38 U.S.C.A. § 1805 
for a child of a Vietnam veteran suffering from spina bifida 
is denied.



		
	MARY GALLAGHER
	Member, Board of Veterans' Appeals