[Congressional Record Volume 143, Number 100 (Tuesday, July 15, 1997)]
[Senate]
[Pages S7486-S7488]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (by request):
  S. 1018. A bill to amend provisions of law governing benefits for 
certain children of Vietnam veterans who are born with spina bifida, 
and for other purposes; to the Committee on Veterans' Affairs.


                         Veterans' Legislation

  Mr. SPECTER. Mr. President, as Chairman of the Committee on Veterans' 
Affairs, I have today introduced, at the request of the Secretary of 
Veterans Affairs, S. 1018, a proposed bill to amend provisions of law 
governing benefits for certain children of Vietnam veterans who are 
born with spina bifida, and for other purposes. The Secretary of 
Veterans Affairs submitted this legislation to the President of the 
Senate by letter dated June 18, 1997.
  My introduction of this measure is in keeping with the policy which I 
have adopted of generally introducing--so that there will be specific 
bills to which my colleagues and others may direct their attention and 
comments--all administration-proposed draft legislation referred to the 
Committee on Veterans' Affairs. Thus, I reserve the right to support or 
oppose the provisions of, as well as any amendment to, this 
legislation.

[[Page S7487]]

  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record, together with the transmittal letter which 
accompanied it.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1018

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. REFERENCES TO TITLE 38, UNITED STATES CODE.

       Except as otherwise expressly provided, whenever in this 
     Act an amendment or repeal is expressed in terms of an 
     amendment to, or repeal of, a section or other provision, the 
     reference shall be considered to be made to a section or 
     other provision of title 38, United States Code.

     SEC. 2. AMENDMENTS TO DEFINITIONS.

       Section 1801 is amended to read as follows:
       ``For the purposes of this chapter--
       ``(1) The term `child', with respect to a Vietnam veteran, 
     means a natural child of a Vietnam veteran, regardless of age 
     or marital status, who was conceived after the date on which 
     the Vietnam veteran first entered the Republic of Vietnam 
     during the period beginning on January 9, 1962, and ending on 
     May 7, 1975.
       ``(2) The term `Vietnam veteran' means an individual who 
     performed active military, naval, or air service in the 
     Republic of Vietnam during the period beginning on January 9, 
     1962, and ending on May 7, 1975, without regard to the 
     character of such individual's service.''.

     SEC. 3. APPLICATION OF CERTAIN ADMINISTRATIVE PROVISIONS TO 
                   CHAPTER 18.

       Section 1806 is amended to read as follows:
       ``The provisions of sections 5101(c), 5110 (a), (b)(2), 
     (g), and (i), 5111, and 5112 (a), (b)(1), (b)(6), (b)(9), and 
     (b)(10) of this title shall be deemed to apply to benefits 
     under this chapter in the same manner in which they apply to 
     veterans' disability compensation.''.

     SEC. 4. AMENDMENTS TO VOCATIONAL REHABILITATION PROVISIONS.

       (a) Section 1804(c)(1)(B) is amended by striking out 
     ``institution of higher education'' and inserting in lieu 
     thereof ``institution of higher learning''.
       (b) Section 1804(d) is amended by adding after paragraph 
     (2) the following new paragraph:
       ``(3) A vocational training program under this section may 
     begin on the child's eighteenth birthday, or on the 
     successful completion of the child's secondary schooling, 
     whichever first occurs, except that, if the child is above 
     the age of compulsory school attendance under applicable 
     State law, and the Secretary determines that the child's best 
     interests will be served thereby, the vocational training 
     program may begin before the child's eighteenth birthday.''

     SEC. 5. CONFORMING CHANGES TO EFFECTIVE DATE PROVISIONS.

       (a) Section 421(d) of Public Law 104-204, 110 Stat. 2926, 
     is amended by striking out ``January 1, 1997'' and inserting 
     in lieu thereof ``October 1, 1997''.
       (b) Section 422(b)(1) of Public Law 104-204, 110 Stat. 
     2927, is amended by striking out ``October 1, 1996'' and 
     inserting in lieu thereof ``October 1, 1997''.
       (c) Section 422(c) of Public Law 104-204, 110 Stat. 2927, 
     is repealed.

     SEC. 6. EFFECTIVE DATE.

       The amendments made by this Act shall be effective on 
     October 1, 1997.
                                                                    ____



                            The Secretary of Veterans Affairs,

                                        Washington, June 18, 1997.
     Hon. Albert Gore,
     President of the Senate,
     Washington, DC.
       Dear Mr. President: I am pleased to transmit the enclosed 
     draft bill to amend title 38, United States Code, to ``amend 
     provisions of law governing benefits for certain children of 
     Vietnam veterans who are born with spina bifida, and for 
     other purposes.'' I request that this draft bill be referred 
     to the appropriate committee for prompt consideration and 
     enactment.
       Section 2 of the draft bill would amend new section 1801 of 
     title 38, United States Code (as added by section 421(b)(1) 
     of Pub. L. No. 104-204, effective October 1, 1997). Section 
     1801 sets forth definitions of certain terms for purposes of 
     new chapter 18 of that title, which authorizes benefits for 
     children of Vietnam veterans who are born with spina bifida. 
     The definitions of ``child'' and ``Vietnam veteran'' would be 
     amended by section 2 of the draft bill.
       Pursuant to section 1801(1) as added by Pub. L. No. 104-
     204, the term ``child'' is defined for purposes of new 
     chapter 18 to mean ``a natural child of the Vietnam veteran . 
     . . who was conceived after the date on which the veteran 
     first entered the Republic of Vietnam during the Vietnam 
     era.'' (Emphasis added.) At the time of enactment of that 
     statute, the term ``Vietnam era'' was defined in 38 U.S.C. 
     Sec. 101(29) as the period beginning August 5, 1964, and 
     ending on May 7, 1975. Subsequently, however, section 505(a) 
     of Pub. L. No. 104-275 (effective January 1, 1997) amended 
     the definition of that term to mean either the period 
     beginning on February 28, 1961, and ending on May 7, 1975, in 
     the case of a veteran who served in the Republic of Vietnam 
     during that period, or the period beginning on August 5, 
     1964, and ending on May 7, 1975, in all other cases. In 
     addition, section 505(b) ob Pub. L. No. 104-275 amended 38 
     U.S.C. Sec. 1116(a) by striking out references to the 
     ``Vietnam era'' and substituting references to ``the period 
     beginning on January 9, 1962, and ending on May 7, 1975,'' 
     for the purposes of a statutory presumption of service 
     connection for certain disabilities based on exposure to 
     herbicide agents in the case of a veteran who served in the 
     Republic of Vietnam during that period. January 9, 1962, is 
     the earliest date herbicide agents were known to have been 
     used in the Republic of Vietnam in connection with the 
     armed conflict.
       Since the purpose of new chapter 18 is to address 
     disabilities resulting from the birth defect spina bifida 
     which may be associated with a parent's exposure to herbicide 
     agents while serving in the Republic of Vietnam, we believe 
     it would be appropriate for references to the applicable time 
     period in section 1801 to be consistent with the time period 
     now set forth in 38 U.S.C. Sec. 1116(a). Accordingly, the 
     term ``child'' with respect to a Vietnam veteran would be 
     defined to mean a natural child of a Vietnam veteran, 
     regardless of age or marital status, who was conceived after 
     the date on which the Vietnam veteran first entered the 
     Republic of Vietnam during the period beginning on January 9, 
     1962, and ending on May 7, 1975. A similar conforming change 
     would be made to the definition of ``Vietnam veteran'' in 
     section 1801(2), which currently uses the term ``Vietnam 
     era''.
       Section 1801(2) of title 38, United States Code, as added 
     by Pub. L. No. 104-204, defines the term ``Vietnam veteran'' 
     as a ``veteran'' who performed active service in the Republic 
     of Vietnam during the Vietnam era. We believe use of the term 
     ``veteran'' in the definition of the term ``Vietnam veteran'' 
     may precipitate, in a small number of cases, an unnecessary 
     eligibility determination, relating not to the child, but to 
     the parent, in that 38 U.S.C. Sec. 101(2) defines the term 
     ``veteran,'' mean ``a person who served in the active 
     military, naval, or air service, and who was discharged or 
     released therefrom under conditions other than 
     dishonorable.'' (Emphasis added.) As a result of the 
     character-of-discharge component in the definition of 
     ``veteran,'' there may be some instances in which a parent 
     may fail to attain veteran status based on character of 
     discharge, thus precluding his or her child's eligibility for 
     benefits under chapter 18. Authorization of benefits and 
     services for children of Vietnam veterans who suffer from 
     spina bifida, pursuant to Pub. L. No. 104-204, represents the 
     first instance in which the Department of Veterans Affairs 
     (VA) will be authorized to provide benefits to a child of a 
     veteran based on a direct injury to the child rather than the 
     parent. We do not believe that a child's eligibility for 
     benefits and services under chapter 18 for a physical injury 
     suffered by the child should be premised on a parent's 
     eligibility for veteran's benefits. Therefore, we propose to 
     clarify the definition of the term ``Vietnam veteran'' to 
     indicate that the relevant factor for consideration is the 
     physical presence of the child's parent in the Republic of 
     Vietnam on military service during a period of time when use 
     of herbicide agents was documented, not the character of that 
     parent's military service. Accordingly, the term ``Vietnam 
     veteran'' would be defined to mean an individual who 
     performed active military, naval, or air service in the 
     Republic of Vietnam during the period beginning on January 
     9, 1962, and ending on May 7, 1975, without regard to the 
     character of such individual's service.
       Section 3 of the draft bill would amend 38 U.S.C. Sec. 1806 
     to provide for the applicability to the provision of benefits 
     under chapter 18 of certain existing administrative 
     provisions which are applicable to the service-connected 
     disability compensation program. Section 1806, as amended by 
     this section, would make applicable, for purposes of the 
     administration of benefits under chapter 18, references to 
     the following sections of title 38, United States Code: 
     5101(c) (regarding the furnishing of Social Security 
     numbers); 5110(a) (regarding the general effective-date rule 
     for an original benefit award); 5510(b)(2) (regarding the 
     effective date of an award of increased benefits); 5110(g) 
     regarding effective dates of awards based on Acts or 
     administrative issues); 5110(i) (regarding allowance of a 
     reopened claim based on the correction of military records); 
     5111 (regarding the commencement of the period of payment of 
     benefits); and 5112(a), 5112(b)(1), 5112(b)(6), 5112(b)(9), 
     and 5112(b)(10) (regarding the effective date of a reduction 
     or discontinuance of benefits on certain bases). We believe 
     the applicability of these sections to new chapter 18 is 
     necessary to assure equitable and consistent administration 
     of benefits under that chapter in a manner similar to the 
     administration of the compensation program.
       Section 4 of the draft bill would make no changes 
     concerning vocational training and rehabilitation benefits 
     for children of Vietnam veterans who are born with spina 
     bifida. First, subsection (a) of this section would amend 38 
     U.S.C. Sec. 1804(c)(1)(B) by replacing the term ``institution 
     of higher education'' with the term ``institution of higher 
     learning''. The latter is a term of art defined in 38 U.S.C. 
     Sec. 3452(f), as meaning, generally, a college, university, 
     or similar institution, including a technical or business 
     school, offering postsecondary level academic instruction 
     that leads to an associate or higher degree if the school is 
     empowered by state law to grant an associate or higher degree 
     or otherwise is accredited for degree programs by a 
     recognized accrediting agency. The term,

[[Page S7488]]

     which also includes a hospital offering educational programs 
     at the postsecondary level, has a long history of usage by VA 
     in its administration of the various GI Bill and other 
     educational assistance programs for eligible veterans and 
     dependents, as well as the chapter 31 vocational 
     rehabilitation program for certain service disabled veterans 
     with employment handicaps. By contract, the term 
     ``institution of higher education'' is not found in title 38 
     and has no accepted meaning with regard to administration of 
     veterans' benefits under that title. In view of this, and 
     since we know of no substantive basis for use of different 
     terminology for purposes of section 1804, we believe this 
     proposed change will promote ease of understanding and 
     administration of section 1804.
       Subsection (b) of section 4 would amend section 1804(d) to 
     add a new provision to specify that an eligible child may 
     enter a vocational training program under that section as of 
     the child's eighteenth birthday or on completion of secondary 
     schooling, whichever first occurs. The Secretary could grant 
     an exception that would permit entry into the program before 
     age 18 when in the best interest of a child above the age of 
     compulsory school attendance. This change addresses an 
     omission in the statute by putting a reasonable floor on the 
     age when a child can be evaluated for the feasibility of 
     achieving a vocational goal and can commence training toward 
     that objective. Vocational training normally is initiated 
     upon completion of secondary or high school education, and 
     this change recognizes that fact. It also would encourage a 
     child's completion of secondary education where feasible, 
     while allowing for exceptions where completion is not 
     feasible. In this regard, it may be noted that this proposal 
     is patterned after a provision applicable to commencement of 
     educational assistance for an eligible child under chapter 35 
     of title 38, the Survivors' and Dependents' Educational 
     Assistance program. Fixing the beginning of eligibility for 
     commencement of a program in this manner is similarly 
     appropriate for children afforded assistance under section 
     1804.
       Section 5 is intended to eliminate apparent inconsistencies 
     between the respective January 1, 1997, and October 1, 1996, 
     effective dates set forth in sections 421(d) and 422(b)(1) of 
     Pub. L. No. 104-204 and an overriding October 1, 1997, 
     effective date provision in section 422(c) of that law. 
     Enactment of this section would not result in a substantive 
     change in the operative October 1, 1997, effective date, but 
     will eliminate the potential for confusion regarding the 
     various effective dates and insure that each of the subject 
     amendments will become effective simultaneously.
       Pursuant to section 422(c) of Pub. L. No. 104-204, 
     notwithstanding sections 421(d) or 422(b)(1) of that law, the 
     effective date for the amendments made by section 421(b) 
     (which adds new chapter 18) and section 422(a) (which amends 
     38 U.S.C. Sec. 1151), is October 1, 1997. Section 421(d) 
     otherwise would have established a January 1, 1997, effective 
     date for new chapter 18, and section 422(b)(1) would have 
     established October 1, 1996, as the effective date for the 
     amendments to section 1151. Section 5(a) would amend section 
     421(d) of Pub. L. No. 104-204 by striking out ``January 1, 
     1997'' and substituting ``October 1, 1997'' in its place. In 
     addition, section 5(b) would amend section 422(b)(1) of 
     that public law to specify an effective date of October 1, 
     1997, for the amendments made by section 422(a) to 38 
     U.S.C. Sec. 1151, in place of October 1, 1996. Finally, 
     section 5(c) would repeal section 422(c) of Pub. L. No. 
     104-204, as that section would no longer be needed.
       In addition to simplifying the effective date provisions 
     applicable to sections 421 and 422 of Pub. L. No. 104-204, 
     this change would avoid an anomaly in the application of the 
     amendment to 38 U.S.C. Sec. 1151 made by section 422(a). In 
     part to assure that any benefit costs associated with new 
     chapter 18 would be fully offset by cost savings, section 
     422(a) amended section 1151 to provide, in general, that 
     compensation and dependency and indemnity compensation on the 
     basis of disability or death as a result of VA medical 
     treatment would be payable only where disability or death was 
     due to fault on the part of VA or an event not reasonably 
     foreseeable. Although section 422(c) currently provides that 
     section 422 shall not take effect until October 1, 1997, 
     section 422(b)(2) states that the amended section 1151 shall 
     govern determinations of eligibility ``made with respect to 
     claims filed on or after the effective date set forth in 
     paragraph (1)'' of section 422(b), i.e., October 1, 1996. 
     This suggests that, although the amendments to section 1151 
     made by section 422 do not take effect until October 1, 1997, 
     when they do, any claims filed between October 1, 1996, and 
     October 1, 1997, but not yet decided by October 1, 1997, 
     would be subject to the more narrow provisions of amended 
     section 1151. The criteria applicable to eligibility 
     determinations should not be dependent on how long it takes 
     VA to adjudicate a particular section-1151 claim. The 
     amendments proposed in section 5 of the draft bill would 
     avoid this result by clarifying that the changes to section 
     1151 apply only with respect to claims filed on or after 
     October 1, 1997, as we believe was intended.
       Section 6 of the draft bill would provide that the 
     effective date for the amendments made by the draft bill 
     shall be October 1, 1997. This provision is necessary to 
     assure that the amendments proposed in this draft bill will 
     have the same effective date as the amendments to title 38, 
     United States Code, applicable to children of Vietnam 
     veterans who are born with spina bifida enacted as part of 
     Pub. L. No. 104-204.
       This proposal would affect direct spending; therefore it is 
     subject to the pay-as-you-go requirement of the Omnibus 
     Budget Reconciliation Act of 1990. The Office of Management 
     and Budget (OMB) estimates that the pay-as-you-go effect of 
     this proposal would be zero.
       OMB advises that there is no objection from the standpoint 
     of the Administration's program to the submission of this 
     proposal to the Congress.
           Sincerely yours,
                                                      Jesse Brown.
                                 ______