[Federal Register Volume 62, Number 189 (Tuesday, September 30, 1997)]
[Rules and Regulations]
[Pages 51274-51281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25663]
[[Page 51273]]
_______________________________________________________________________
Part IV
Department of Veterans Affairs
_______________________________________________________________________
38 CFR Parts 3, 17 and 21
Monetary Allowance Under 28 U.S.C. 1805 for a Child Suffering From
Spina Bifida Who Is a Child of a Vietnam Veteran; Final Rule
Provision of Health Care to Vietnam Veterans' Children With Spina
Bifida; Final Rule
Provision of Vocational Training and Rehabilitation to Vietnam
Veterans' Children With Spina Bifida; Final Rule
Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 /
Rules and Regulations
[[Page 51274]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AI70
Monetary Allowance Under 38 U.S.C. 1805 for a Child Suffering
From Spina Bifida Who Is a Child of a Vietnam Veteran
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations to provide for payment of a monetary allowance
to a child suffering from spina bifida who is a child of a Vietnam
veteran. The intended effect of this amendment is to implement
legislation authorizing VA to provide such benefits.
DATES: Effective Date: October 1, 1997.
FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone
(202) 273-7230.
SUPPLEMENTARY INFORMATION: Section 3 of the Agent Orange Act of 1991,
Pub. L. 102-4, 105 Stat. 11, directed the Secretary of Veterans Affairs
to seek to enter into an agreement with the National Academy of
Sciences (NAS) for a series of reports to review and summarize the
scientific evidence concerning the association between exposure to
herbicides used in support of military operations in the Republic of
Vietnam during the Vietnam era, and each disease suspected to be
associated with such exposure. In its most recent report, entitled
``Veterans and Agent Orange: Update 1996,'' which was released on March
14, 1996, NAS noted what it considered ``limited/suggestive evidence of
an association'' between herbicide exposure and spina bifida in the
offspring of Vietnam veterans.
Since VA did not have the statutory authority to provide benefits
to children of veterans based on birth defects, the Secretary announced
on May 28, 1996, that he would seek legislation to provide an
appropriate remedy. VA submitted proposed legislation to Congress in
July of that year. Section 421 of Pub. L. 104-204 added a new chapter
18 to title 38, United States Code, authorizing VA to provide certain
benefits, including a monthly monetary allowance, to children suffering
from spina bifida who are the natural children of veterans who served
in the Republic of Vietnam during the Vietnam era. VA published a
proposal to implement section 421 of Pub. L. 104-204 in the Federal
Register of May 1, 1997 (62 FR 23724-23731). Interested persons were
invited to submit written comments on or before June 30, 1997. We
received a total of thirty-two comments from: the Vietnam Veterans of
America, Inc.; the Vietnam Veterans of America (Illinois State Council
Service Program); a combined comment from the National Veterans Legal
Services Program (NVLSP), the Spina Bifida Association of America, and
the National Alliance of Veteran Family Service Organizations; the
Veterans of Foreign Wars of the United States (VFW); The American
Legion; the Paralyzed Veterans of America (PVA); Senator Tom Daschle;
Senator John D. Rockefeller IV; and twenty-four other concerned
individuals.
A number of commenters specifically recommended changes to the
statutory language of title 38, United States Code, chapter 18. Others
recommended that in the regulation we change the amount of the monetary
allowance associated with the three levels of disability; add
additional payment levels for the monetary allowance; pay the monetary
allowance retroactive to dates prior to October 1, 1997; provide
automobile adaptive equipment or an automobile allowance and specially
adapted housing to children with spina bifida; pay the benefit to
children with spina bifida occulta; pay the benefit to grandchildren of
Vietnam veterans; and pay the benefit to the children of certain
individuals who do not meet the statutory definition of the term
``veteran.'' No changes are made based on these comments. VA has no
legal authority to make any of these changes.
One commenter suggested that in the regulation VA use the term
``biological child'' of a Vietnam veteran rather than ``natural
child.''
Section 1801(1) of title 38, United States Code, defines the term
``child'' for purposes of this benefit as meaning, among other things,
a ``natural child'' of a Vietnam veteran. The term ``natural'' as used
in the statute means relating naturally rather than by adoption
(Webster's New World Dictionary, Third College Ed., 1988, 903), so in
our judgment the terms ``natural child'' and ``biological child'' are
synonymous. Using a term in the regulation that is inconsistent with
the statutory language might imply a difference that we do not intend.
Therefore, we make no change based on this suggestion.
One commenter stated that a child with spina bifida who is the
legally adopted child of a Vietnam veteran should be eligible for this
benefit.
The statute clearly defines the term ``child'' as used in
determining eligibility for spina bifida benefits as meaning the
natural child of a Vietnam veteran (see 38 U.S.C. 1801 (1)). Since VA
has no authority to expand that statutory definition, we make no change
based on this comment.
We proposed to terminate the monetary allowance effective the last
day of the month before the month in which the beneficiary dies. A
commenter suggested that we terminate not only this benefit, but
benefits to veterans and survivors as well, effective the first day of
the month following the month of death.
Because 38 U.S.C. 5112(b)(1) requires VA to discontinue
compensation, dependency and indemnity compensation, or pension
payments on the last day of the month before the death of the
beneficiary, we have no discretion with respect to these benefits.
Although Pub. L. 104-204 is silent on the issue of effective dates for
discontinuing the monetary allowance, there is no indication in chapter
18 of title 38, United States Code, or its legislative history that
Congress intended VA to administer the monetary allowance for children
with spina bifida any differently than compensation, dependency and
indemnity compensation, or pension in this respect, and we make no
change based on this suggestion.
We proposed to define the term ``Vietnam veteran,'' for purposes of
this benefit, to include an individual with service in the waters
offshore and service in other locations ``if the conditions of service
involved duty or visitation in the Republic of Vietnam.'' One commenter
recommended that we eliminate the phrase ``if the conditions of service
involved duty or visitation in the Republic of Vietnam.''
VA defines the term service in the Republic of Vietnam, for the
purposes of presuming herbicide exposure, 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 CFR 3.307(a)(6)(iii)). Because herbicides were not applied in waters
off the shore of Vietnam, limiting the scope of the term service in the
Republic of Vietnam to persons whose service involved duty or
visitation in the Republic of Vietnam limits the focus of the
presumption of exposure to persons who may have been in areas where
herbicides could have been encountered. Since the purpose of this
rulemaking is to provide a monetary allowance to the children of those
same veterans that VA presumes to be
[[Page 51275]]
herbicide-exposed if the children are born with spina bifida, it would
be inappropriate to revise the presumption of exposure for the purposes
of this benefit. We make no change based on this comment.
VA proposed to amend 38 CFR 3.263 and 3.275 to implement the
provisions of 38 U.S.C. 1805(c) that specify that the monetary
allowance not be considered income or resources in determining
eligibility for benefits under any Federal program. One commenter
stated that not only should the monetary allowance be excluded from VA
net worth calculations but that assets purchased with the monetary
allowance should also be excluded from those calculations.
Both Secs. 3.263 and 3.275 define ``net worth'' to mean the market
value, less mortgages or other encumbrances, of all real and personal
properties owned by the claimant, except the claimant's dwelling
(single family unit), including a reasonable lot area, and personal
effects suitable and consistent with the claimant's reasonable mode of
life. In our judgment, that definition allows reasonable exclusions
from net worth for purposes of VA's income-based benefit programs, and
we make no change based on this comment.
Several commenters suggested that VA provide an outreach plan as
part of the final regulation. Although we intend informally to advise
potentially eligible claimants that benefits are available and to
solicit claims, we see no reason to include a statement regarding this
matter in the regulations, since those who read the regulations
necessarily would know about the program.
Several commenters stated that spina bifida claimants should have
the same due process and appellate rights as other VA claimants.
38 CFR 3.103, Procedural due process and appellate rights, clearly
states that its provisions apply to all claims for benefits and relief
within the purview of VA's adjudication regulations (38 CFR part 3).
Since the regulatory framework for the monetary allowance to children
with spina bifida (38 CFR 3.814) is codified within 38 CFR part 3, the
due process and appellate rights provided by Sec. 3.103 apply to spina
bifida claimants.
One commenter requested that the comment period for this rulemaking
proceeding be extended until the end of the comment period for the
proposed rule regarding vocational training and rehabilitation for
Vietnam veterans' children who suffer from spina bifida.
Such an extension is unwarranted. An understanding of the issues in
the rulemaking proceeding regarding vocational training and
rehabilitation is not necessary to make informed comments regarding
this rulemaking proceeding.
Another commenter recommended that VA use its Schedule for Rating
Disabilities (title 38, Code of Federal Regulations, part 4) to
evaluate the severity of disabilities for the purpose of furnishing the
monetary allowance for spina bifida.
38 U.S.C. 1155, the statutory authority for VA's Schedule for
Rating Disabilities, provides that evaluations of disabled veterans be
based, as far as practicable, upon average impairment of earning
capacity resulting from similar disabilities in civil occupations, and
be at one of ten grades in 10 percent increments. 38 U.S.C. 1805(b)
authorizes VA to pay a monetary allowance to an eligible child with
spina bifida at one of three levels based on the degree of disability
suffered by the child, as determined in accordance with a schedule for
rating such disabilities to be prescribed by the Secretary. By
requiring evaluations at three levels rather than 10, and by not
directing that evaluations be based on average impairment of earning
capacity or be expressed in percentages, Congress established
requirements for evaluating spina bifida so different from the
requirements for evaluating disabilities for compensation and pension
purposes that they are incompatible with the Schedule for Rating
Disabilities. By codifying the requirement to establish rating criteria
for spina bifida other than under the authority of 38 U.S.C. 1155,
Congress further indicated its expectation that children with spina
bifida would be evaluated under different criteria. For these reasons,
we make no change based on this comment.
Section 1805 of title 38, United States Code, provides a monetary
allowance at one of three levels to eligible individuals based on the
degree of disability to be determined according to a rating schedule
prescribed by the Secretary. We proposed to base the three levels of
disability on neurological deficit, as manifested by impairment of
functioning of: the extremities; bowel or bladder; and intellect; and
to evaluate each of those at one of three levels of severity. Several
commenters objected that those criteria are too narrow because they
fail to include all disabilities ``related to, or secondary to, spina
bifida,'' such as hydrocephalus, Arnold-Chiari malformation, sexual/
reproductive dysfunction, latex allergy, seizure disorders, etc.
While spina bifida is commonly associated with other developmental
defects and congenital abnormalities, 38 U.S.C. 1805 authorizes VA to
pay the monetary allowance for any ``disability resulting from'' spina
bifida. Neurological deficit is the main determinant of disability for
individuals with spina bifida (Long-term Outcome in Surgically Treated
Spina Bifida Cystica, Isao Date, M.D., Yasunori Yagyu, M.D., Shoji
Asari, M.D., and Takshi Ohmoto, M.D., Surg. Neurol. 1993, 40:471-5).
Conditions that are commonly associated with spina bifida, such as
Arnold-Chiari malformation, hydrocephalus, etc., generally affect one
or more of the same functions we proposed to use for rating spina
bifida. The evaluation criteria do not require the raters to rate
impairment of those functions only to the extent that it is due to
spina bifida, but allow them to take into account the effect on those
functions of associated conditions. In our judgment, the rating
criteria that we proposed constitute a reasonable method for
differentiating between three levels of disability, as Congress
required, and we make no change based on these comments.
Several commenters felt that the payment criteria do not take into
account the synergistic effect of disabilities and recommended that an
individual with more than one Level II disability be rated at Level
III.
Congress mandated rating criteria supporting three levels of
payment. If we are to administer this monetary allowance equitably, and
in the manner we believe Congress intended, in assigning an
intermediate (Level II) payment based on combined aspects of
neurological impairment, we must consider not only that some
beneficiaries with spina bifida may be less severely disabled than a
particular individual, but that some may be more severely disabled.
Someone with even four Level II disabilities, for example, would not be
as severely disabled as someone with any of the Level III disabilities,
because the criteria used to assess each disability represent
incremental degrees of severity from least (Level I) through most
severe (Level III). Since Congress established three levels of payment,
it would not be equitable, in our judgment, to pay someone with Level
II impairment of each neurological function considered in the criteria
the same amount as someone with Level III impairment of each
neurological function considered. The criteria as proposed represent a
reasonable and equitable method for distinguishing three levels of
disability, and we make no change based on this comment.
We proposed to measure impairment of intellectual functioning using
[[Page 51276]]
intelligence quotient (I.Q.). A number of commenters stated that I.Q.
is not the best representation of intellectual functioning as it
relates to level of disability. Some recommended that we use
``performance I.Q.'' or ``assessed intellectual functioning'' instead.
According to a recent British study, it is, in fact, I.Q. that is
one of the two main determinants of disability and dependency in
individuals with spina bifida, neurological deficit being the other
(Open spina bifida: a complete cohort reviewed 25 years after closure,
Urology Department, Addenbrooke's Hospital, Cambridge, UK, Dev Med
Child Neurol 1995 Jan; 37(1):19-29). Furthermore, it is important to
keep the criteria as simple and objective as possible to ensure
consistent ratings and timely resolution of claims. Although I.Q. can
be measured by any of several standardized tests that are in general
use, we are not aware of any comparable standard objective measures for
the other aspects of intellectual functioning that the commenters
suggested we use. For these reasons, we make no change based on these
comments.
One commenter felt that the payment criteria should take into
account emotional suffering due to past surgical procedures.
38 U.S.C. 1805 authorizes a monetary allowance for disability
resulting from spina bifida. In normal usage, the term ``disability''
implies a lack of the ability to function normally, physically or
mentally (Dorland's Illustrated Medical Dictionary, 27th ed. 1988,
480). In our judgment, mental suffering due to prior surgeries is not a
disability as that term is used in the statute, and we make no change
based on this comment.
We proposed to evaluate impairment of bowel and bladder function
from least (Level I) to most (Level III) severely impaired based on
whether an individual is continent of urine and feces, requires drugs
or mechanical means to maintain proper bladder or bowel function, or is
completely incontinent of urine or feces. A number of commenters stated
that these criteria penalize individuals for receiving appropriate
treatment and are a financial disincentive to seeking treatment.
The issue is not whether impairment of bowel or bladder function is
severely disabling--we can concede that it is--but the degree of
severity. An individual who is continent at least part of the time, by
whatever means, is clearly less disabled than one who is unable to
attain any degree of continence by any means. Even in cases where an
individual has attained continence of either bowel or bladder function
through drugs or mechanical means, other factors would influence the
payment level. For example, some individuals may be able to attain
continence for either bowel or bladder function but not both. In such a
case, the payment level would remain at Level III. Furthermore,
individuals with impairment of bowel or bladder function will, in many
cases, have other impairments that affect the payment level, so that a
change from incontinence to continence might not warrant any change in
the payment level. In our judgment, the fact that a beneficiary might,
in rare cases, receive a higher monthly payment if he or she does not
follow procedures designed to alleviate, or at least manage,
incontinence will not outweigh for most individuals with spina bifida
the incentives, from both health and social perspectives, to follow
such a program. We therefore make no change based on this comment.
Two commenters pointed out that because the degree of continence
may change, the payment level may need to change. One recommended that
we not reduce the payment from Level II (based on the fact that an
individual requires drugs to maintain urinary continence) to Level I,
until one year after he or she becomes continent without drugs, in
order to ascertain whether continence can be maintained without
medication.
The payment level is based on a combination of specified functional
impairments. For that reason, a change in the severity of one type of
impairment would not necessarily affect the payment level. A reduction
from Level II to Level I based on the fact that an individual has
achieved urinary continence, for example, would occur only if all other
specified impairments (bowel, ambulation, I.Q., upper extremities) were
also at Level I. Under the provisions of 38 CFR 3.814, VA will
reevaluate the disability level whenever there is an indication of
material change in an individual's condition; these evaluations will
generally be based on medical reports from the beneficiary's primary
care physician or the medical institution where he or she receives
treatment. Should the health-care provider indicate that the long-term
effect of withdrawing treatment cannot yet be determined, the rating
activity could defer the reevaluation if it had any potential effect on
the payment level. The length of any deferment should be based on
medical evidence rather than a fixed period set by regulation, however,
and we make no change based on this comment.
Because all children less than one year of age, whether or not they
are suffering from spina bifida, are essentially helpless, incontinent,
unable to walk, and too young for I.Q. to be measured, we proposed to
pay children under the age of one at Level I. Several commenters
objected to this provision.
One commenter stated that this provision is unfair because it is at
odds with the likely disability once the child is old enough to be
properly examined, and arbitrary because it treats infants with spina
bifida differently than older individuals with spina bifida without a
rational basis.
The rating criteria for spina bifida are based on impairment of
specified neurological functions. These functions have not yet
developed in newborns, regardless of their spina bifida status. We do
not dispute the fact that an infant with spina bifida has disabilities
due to the condition. However, since it would be purely speculative to
assess the severity of impairment of neurological functions until such
time as those functions would have developed, in our judgment, there is
a rational basis for setting the level of the monthly allowance at the
lowest rate established by statute. As for the comment that Level I may
not reflect the eventual severity of the child's disability, we believe
that the monetary allowance is meant to reflect the current, rather
than potential, level of severity, and that the requirement to
reevaluate at age one is sufficient to ensure the child will be paid
according to the actual impairment of neurological function once it is
possible to objectively assess that impairment.
Three commenters felt that a child under the age of one should be
paid at Level III. One commenter gave as a reason that this is the
period of most intensive medical and surgical treatment. Another said a
child with hydrocephalus could have multiple shunt malfunctions.
The issue is impairment of specific functions that are not yet
developed in any infant. A child eligible for the monetary allowance is
also entitled to health care from VA, including medical care, supplies,
transportation, etc. Such a child will not be deprived of needed
medical care because of the amount of monetary allowance. Furthermore,
a child under the age of one may be evaluated at Level III if a
pediatric neurologist or pediatric neurosurgeon certifies that there is
a neurologic deficit present that will prevent the individual from
ambulating, that will preclude self-care and feeding self because of
sensory or motor impairment of the upper extremities, or that will make
it impossible for the individual to achieve urinary or fecal
continence. For these
[[Page 51277]]
reasons, we make no change based on this comment.
One commenter said this inequity of presuming a Level I could
continue for years if the parents or VA fail to arrange a reevaluation.
No changes are made based on this comment. These regulations
require VA to reevaluate a child when it reaches one year of age and
thereafter at intervals of not more than five years. That is adequate
protection against the inequity the commenter foresees. Anything beyond
that would be a duty beyond the scope of VA's responsibility.
Furthermore, a child, parent, or guardian may submit evidence that the
disability has worsened at any time after the child is one year of age,
and VA will determine whether that evidence warrants a change in the
amount of monetary allowance.
Several commenters felt that the provision requiring certification
by a pediatric neurologist for an infant to be paid at Level III is too
stringent. Some commenters suggested that in addition to pediatric
neurologists the certification also should be allowed to be made by
pediatric neurosurgeons. We agree that such determinations could also
be made by pediatric neurosurgeons. However, due to the difficulty of
making an objective prognosis for infants with this complex disability,
we believe that only pediatric neurologists and pediatric neurosurgeons
have sufficient expertise to ensure that the option of rating the
infant at Level III is equitably and consistently applied. Accordingly,
the final rule limits such certifications to pediatric neurologists and
pediatric neurosurgeons.
Some commenters said that infants with spina bifida, particularly
those in rural areas, might not have access to a pediatric neurologist
and recommended that VA accept certifications from other health-care
practitioners.
Hospitals even in rural areas offer referral services for treatment
or evaluation of severely disabled children. Under the provisions of 38
U.S.C. 1803, VA will provide an eligible child with spina bifida any
health care, including transportation expenses, that it determines is
necessary. If VA determines that evaluation by a pediatric neurologist
or a pediatric neurosurgeon qualifies as a reasonable need, the
services of a pediatric neurologist or a pediatric neurosurgeon will be
available to any eligible disabled child who needs them, and we make no
change based on this comment.
We proposed to rate impairment of neurological function of the
lower extremities at Level I if the individual is able to walk without
braces or other external support; at Level II if he or she is
ambulatory, but only with braces or other external support; and at
Level III if he or she is unable to ambulate. One commenter said that
the need to wear braces should warrant a Level III determination, and
another said that some who can walk without braces still have very
severe disability.
This comment raises the same issue, i.e., the degree of severity,
discussed above in conjunction with the synergistic effects of
disabilities. In order to administer this monetary allowance equitably,
it is important that we consider not only that some beneficiaries may
be less severely disabled than an individual rated at Level II, but
also that some may be more severely disabled. While spina bifida is
undoubtedly a very disabling condition, the statute requires us to
establish rating criteria that distinguish three levels of disability.
A person able to ambulate with braces or other external support is
unquestionably less severely disabled than an individual who is unable
to ambulate. We believe, therefore, the proposed criteria establish a
clear and reasonable separation between the intermediate and most
severe levels of impairment of neurological functioning of the lower
extremities, and we make no change based on this comment.
We proposed to reevaluate individuals with spina bifida at the age
of one year and then at intervals of no more than five years until the
individual reaches the age of 21. One commenter proposed that VA waive
further reevaluation if the child's primary caregiver states that it is
unlikely that the overall level of disability will improve.
Periodic reevaluations are necessary because, until maturity, the
level of neurological functioning may fluctuate. Virtually all children
can be taught to ambulate with sufficient bracing and external support,
for example, but those with lesions at L2 or higher will usually revert
to wheelchairs in the teenage period (Diseases of the Nervous System,
Arthur K. Asbury, M.D., Guy M. McKhann, M.D., and W. Ian McDonald, Ph.
D., 1986, 712). The purpose of the reevaluations is to ensure that the
beneficiary is being paid at the level commensurate with the severity
of the disability. Although reevaluation will generally be based on
private medical evidence, it is the VA adjudicator, rather than the
caregiver, who is responsible for determining how that medical evidence
compares to the requirements set forth in VA regulations. We therefore
make no change based on this comment.
One commenter noted that the application form asked for parents'
Social Security numbers. The commenter asserted that the form should
clearly state that this is optional information. No change to the form
is made based on this comment. The form clearly and prominently states
in the material under the heading ``Privacy Act Information'' that
disclosure of Social Security numbers is voluntary.
One commenter also noted that the application form asked for the
parents' VA claim numbers and asserted that such information is
irrelevant and should be eliminated from the form. No change to the
form is made based on this comment. Not all parents will have VA claim
numbers. However, for those who do, the corresponding claims file
should provide relevant information that would eliminate the need for
other searching. For example, the file should establish whether the
parent had service in the Republic of Vietnam during the Vietnam era.
For the sake of clarity, we have made some non-substantive
editorial changes to the proposed language.
VA appreciates the comments submitted in response to the proposed
rule. Based on the rationale set forth in the proposed rule and this
document, the provisions of the proposed rule are adopted with the
changes noted above.
Executive Order 12866
This final rule has been reviewed by OMB under Executive Order
12866.
Administrative Procedure Act
There is good cause for making this final rule effective without
regard to a 30 day delay. This final rule does not adversely affect
anyone, and the affected children need the benefits from the rule as
soon as possible.
Paperwork Reduction Act
Information collection requirements associated with this final rule
concerning the Application for Spina Bifida Benefits (38 CFR 3.814)
have been approved by the Office of Management and Budget (OMB) under
the provisions of the Paperwork Reduction Act (44 U.S.C. 3504(h)) and
have been assigned OMB Control Number 2900-0572.
This collection of information included in 38 CFR 3.814 concerns an
application for eligibility for the monetary allowance based on spina
bifida that must be submitted on VA Form 21-0304, which has been
approved.
OMB assigns a control number for each collection of information it
approves. VA may not conduct or
[[Page 51278]]
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
The valid OMB control number assigned to the collection of information
in this final rule is displayed at the end of the affected section of
the regulations.
Two collection of information comments were received and are
discussed above.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C.
601-612. This final rule would not directly affect any small entities.
Only VA beneficiaries could be directly affected. Therefore, pursuant
to 5 U.S.C. 605(b), this final rule is exempt from the initial and
final regulatory flexibility analysis requirements of Secs. 603 and
604.
There is no Catalog of Federal Domestic Assistance program number
for this benefit.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Reporting and recordkeeping requirements,
Veterans, Vietnam.
Approved: September 11, 1997.
Hershel W. Gober,
Acting Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is amended
as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
1. The authority citation for Part 3, subpart A continues to read
as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. In Sec. 3.27, paragraph (c) is redesignated as paragraph (d), a
new paragraph (c) is added, and newly redesignated paragraph (d) and
its authority citation are revised to read as follows:
Sec. 3.27 Automatic adjustment of benefit rates.
* * * * *
(c) Monetary allowance under 38 U.S.C. 1805 for a child suffering
from spina bifida who is a child of a Vietnam veteran. Whenever there
is a cost-of-living increase in benefit amounts payable under section
215(i) of Title II of the Social Security Act, VA shall, effective on
the dates such increases become effective, increase by the same
percentage the monthly allowance under 38 U.S.C. 1805 for a child
suffering from spina bifida who is a child of a Vietnam veteran.
(Authority: 38 U.S.C. 1805(b)(3))
(d) Publishing requirements. Increases in pension rates, parents'
dependency and indemnity compensation rates and income limitation, and
the monthly allowance under 38 U.S.C. 1805 for a child suffering from
spina bifida made under this section shall be published in the Federal
Register.
(Authority: 38 U.S.C. 5312(c)(1), 1805(b)(3))
3. In Sec. 3.105, paragraphs (g) and (h) are redesignated as
paragraphs (h) and (i), respectively; in paragraphs (d), (e), (f) and
newly redesignated paragraph (h) remove ``paragraph (h)'' each time it
appears and add, in its place, ``paragraph (i)''; in newly redesignated
paragraph (i)(1) remove ``paragraphs (d) through (g)'' and add, in its
place, ``paragraphs (d) through (h)''; in newly redesignated paragraph
(i)(2) introductory text remove ``paragraph (d), (e), (f) or (g)'' and
add, in its place, ``paragraph (d), (e), (f), (g) or (h)''; in newly
redesignated paragraph (i)(2)(ii) remove ``paragraph (f)'' and add, in
its place, ``paragraphs (f) and (g)''; in newly redesignated paragraph
(i)(2)(iii) remove ``paragraph (g)'' and add, in its place, ``paragraph
(h)''; and add a new paragraph (g) to read as follows:
Sec. 3.105 Revision of decisions.
* * * * *
(g) Reduction in evaluation--monetary allowance to a child
suffering from spina bifida under 38 U.S.C. 1805. Where a change in
disability level warrants a reduction of the monthly allowance
currently being paid, VA will notify the beneficiary at his or her
latest address of record of the proposed reduction, furnish detailed
reasons therefor, and allow the beneficiary 60 days to present
additional evidence to show that the monthly allowance should be
continued at the present level. Unless otherwise provided in paragraph
(i) of this section, if VA does not receive additional evidence within
that period, it will take final rating action and reduce the award
effective the last day of the month following sixty days from the date
of notice to the payee of the proposed reduction.
(Authority: 38 U.S.C. 501)
* * * * *
Sec. 3.158 [Amended]
4. In Sec. 3.158, paragraphs (a) and (c) are amended by removing
``or dependency and indemnity compensation'' and adding, in its place,
``dependency and indemnity compensation, or monetary allowance under
the provisions of 38 U.S.C. 1805''.
5. In Sec. 3.261, paragraph (a)(40) is added to read as follows:
Sec. 3.261 Character of income; exclusions and estates.
* * * * *
(a) * * *
----------------------------------------------------------------------------------------------------------------
Pension;
Dependency and Pension; old- section 306
Dependency indemnity law (veterans, (veterans,
Income (parents) compensation surviving surviving See--
(parents) spouses and spouses and
children) children)
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
(40) Monetary allowance under Excluded....... Excluded....... Excluded....... Excluded....... Sec. 3.262(y
38 U.S.C. 1805 for children ).
suffering from spina bifida
who are children of Vietnam
Veterans (38 U.S.C. 1805(d)).
----------------------------------------------------------------------------------------------------------------
* * * * *
6. In Sec. 3.262, paragraph (y) is added immediately preceding the
final authority citation at the end of the section to read as follows:
Sec. 3.262 Evaluation of income.
* * * * *
(y) Monetary allowance under 38 U.S.C. 1805 for a child suffering
from spina bifida who is a child of a Vietnam veteran. There shall be
excluded from income computation any allowance paid under the
provisions of 38 U.S.C. 1805 to a child suffering from spina
[[Page 51279]]
bifida who is the child of a Vietnam veteran.
(Authority: 38 U.S.C. 1805(d))
* * * * *
7. In Sec. 3.263, paragraph (g) is added to read as follows:
Sec. 3.263 Corpus of estate; net worth.
* * * * *
(g) Monetary allowance under 38 U.S.C. 1805 for a child suffering
from spina bifida who is a child of a Vietnam veteran. There shall be
excluded from the corpus of estate or net worth of a claimant any
allowance paid under the provisions of 38 U.S.C. 1805 to a child
suffering from spina bifida who is the child of a Vietnam veteran.
(Authority: 38 U.S.C. 1805(d))
8. In Sec. 3.272, paragraph (u) is added to read as follows:
Sec. 3.272 Exclusions from income.
* * * * *
(u) Monetary allowance under 38 U.S.C. 1805 for a child suffering
from spina bifida who is a child of a Vietnam veteran. Any allowance
paid under the provisions of 38 U.S.C. 1805 to a child suffering from
spina bifida who is the child of a Vietnam veteran.
(Authority: 38 U.S.C. 1805(d))
9. In Sec. 3.275, paragraph (i) is added to read as follows:
Sec. 3.275 Criteria for evaluating net worth.
* * * * *
(i) Monetary allowance under 38 U.S.C. 1805 for a child suffering
from spina bifida who is a child of a Vietnam veteran. There shall be
excluded from the corpus of estate or net worth of a claimant any
allowance paid under the provisions of 38 U.S.C. 1805 to a child
suffering from spina bifida who is the child of a Vietnam veteran.
(Authority: 38 U.S.C. 1805(d))
10. In Sec. 3.403, the introductory text and paragraphs (a) through
(e) are redesignated as paragraph (a) introductory text and paragraphs
(a)(1) through (a)(5), respectively, and paragraph (b) is added to read
as follows:
Sec. 3.403 Children.
* * * * *
(b) Monetary allowance under 38 U.S.C. 1805 for a child suffering
from spina bifida who is a child of a Vietnam veteran (Sec. 3.814). An
award of the monetary allowance under 38 U.S.C. 1805 to a child
suffering from spina bifida who is the child of a Vietnam veteran will
be either date of birth if claim is received within one year of that
date, or, date of claim, but not earlier than October 1, 1997.
(Authority: 38 U.S.C. 1806, 5110(n); sec. 422(c), Pub. L. 104-204,
110 Stat. 2926)
11. In Sec. 3.503, the introductory text and paragraphs (a) through
(j) are redesignated as paragraph (a) introductory text and paragraphs
(a)(1) through (a)(10), respectively, and paragraph (b) is added to
read as follows:
Sec. 3.503 Children.
* * * * *
(b) Monetary allowance under 38 U.S.C. 1805 for a child suffering
from spina bifida who is a child of a Vietnam veteran (Sec. 3.814). The
effective date of discontinuance of the monthly allowance under 38
U.S.C. 1805 to a child suffering from spina bifida who is the child of
a Vietnam veteran will be the last day of the month before the month in
which the death of the child occurred.
(Authority: 38 U.S.C. 501)
12. Section 3.814 is added under the undesignated centerheading
``Special Benefits'' to read as follows:
Sec. 3.814 Monetary allowance under 38 U.S.C. 1805 for a child
suffering from spina bifida who is a child of a Vietnam veteran.
(a) VA shall pay a monthly allowance based upon the level of
disability determined under the provisions of paragraph (d) of this
section to or for a child who it has determined is suffering from spina
bifida and who is a child of a Vietnam veteran. Receipt of this
allowance shall not affect the right of the child, or the right of any
individual based on the child's relationship to that individual, to
receive any other benefit to which the child, or that individual, may
be entitled under any law administered by VA. If a child suffering from
spina bifida is the natural child of two Vietnam veterans, he or she is
entitled to only one monthly allowance under this section.
(b) Applicants for the monetary allowance under this section must
submit an application to the VA regional office and include the
information mandated on the following VA form entitled ``Application
for Spina Bifida Benefits'':
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[[Page 51280]]
[GRAPHIC] [TIFF OMITTED] TR30SE97.000
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[[Page 51281]]
(c) Definitions.--(1) Vietnam veteran. For the purposes of this
section, the term ``Vietnam veteran'' means a veteran who performed
active military, naval, or air service in the Republic of Vietnam
during the Vietnam era. 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.
(2) Child. For the purposes of this section, the term ``child''
means a natural child of a Vietnam veteran, regardless of age or
marital status, conceived after the date on which the veteran first
served in the Republic of Vietnam during the Vietnam era.
Notwithstanding the provisions of Sec. 3.204(a)(1), VA shall require
the types of evidence specified in Secs. 3.209 and 3.210 sufficient to
establish in the judgment of the Secretary that a child is the natural
child of a Vietnam veteran.
(3) Spina bifida. For the purposes of this section, the term
``spina bifida'' means any form and manifestation of spina bifida
except spina bifida occulta.
(d)(1) VA shall determine the level of disability suffered by the
child in accordance with the following criteria:
(i) Level I. The child is able to walk without braces or other
external support (although gait may be impaired), has no sensory or
motor impairment of upper extremities, has an IQ of 90 or higher, and
is continent of urine and feces.
(ii) Level II. Provided that none of the child's disabilities are
severe enough to be evaluated at Level III, and the child: is
ambulatory, but only with braces or other external support; or, has
sensory or motor impairment of upper extremities, but is able to grasp
pen, feed self, and perform self care; or, has an IQ of at least 70 but
less than 90; or, requires drugs or intermittent catheterization or
other mechanical means to maintain proper urinary bladder function, or
mechanisms for proper bowel function.
(iii) Level III. The child is unable to ambulate; or, has sensory
or motor impairment of upper extremities severe enough to prevent
grasping a pen, feeding self, and performing self care; or, has an IQ
of 69 or less; or, has complete urinary or fecal incontinence.
(2) Provided that they are adequate for assessing the level of
disability due to spina bifida under the provisions of paragraph (d)(1)
of this section, VA may accept statements from private physicians, or
examination reports from government or private institutions, for the
purpose of rating spina bifida claims without further examination. In
the absence of such information, VA will schedule an examination for
the purpose of assessing the level of disability.
(3) Unless or until VA is able to obtain medical evidence adequate
to assess the level of disability due to spina bifida, or to reassess
the level of disability when required to do so under the provisions of
paragraph (d)(4) or (5) of this section, VA will rate the disability of
a person eligible for this monetary allowance at no higher than Level
I.
(4) Children under the age of one year will be rated at Level I
unless a pediatric neurologist or a pediatric neurosurgeon certifies
that, in his or her medical judgment, there is a neurological deficit
that will prevent the child from ambulating; from grasping a pen,
feeding him or herself, or performing self care; or from achieving
urinary or fecal continence. If such a deficit is present, the child
will be rated at Level III. In either case, VA will reassess the level
of disability when the child reaches the age of one year.
(5) VA will reassess the level of disability due to spina bifida
whenever it receives medical evidence indicating that a change is
warranted. For individuals between the ages of one and twenty-one,
however, it will reassess the level of disability at intervals of not
more than five years. Thereafter, it will reassess the level of
disability only if evidence indicates there has been a material change
in the level of disability or that the current rating may be incorrect.
(Paperwork requirements were approved by the Office of Management and
Budget under control number 2900-0572.)
(Authority: 38 U.S.C. 501, 1805)
PART 3--[AMENDED]
13. The Cross Reference following Sec. 3.57 is amended by removing
``Sec. 3.403(a)'' and ``Sec. 3.503(c)'' and adding, in their places,
``Sec. 3.403(a)(1)'' and ``Sec. 3.503(a)(3)'', respectively.
14. Each Cross Reference following Secs. 3.659 and 3.703 is amended
by removing ``Sec. 3.503(g)'' and adding, in its place,
``Sec. 3.503(a)(7)''.
15. The Cross Reference following Sec. 3.707 is amended by removing
``Sec. 3.503(h)'' and adding, in its place, ``Sec. 3.503(a)(8)''.
16. The Cross Reference following Sec. 3.807 is amended by removing
``Sec. 3.503(h)'' and adding, in its place, ``Sec. 3.503(a)(8).''.
[FR Doc. 97-25663 Filed 9-29-97; 8:45 am]
BILLING CODE 8320-01-P