[Federal Register Volume 65, Number 49 (Monday, March 13, 2000)]
[Proposed Rules]
[Pages 13254-13258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6066]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AJ51


Revised Criteria for Monetary Allowance for an Individual Born 
With Spina Bifida Whose Biological Father or Mother is a Vietnam 
Veteran

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the evaluation criteria that 
the Department of Veterans Affairs (VA) uses to determine the amount of 
the monthly monetary allowance that it pays to an individual born with 
spina bifida whose biological father or mother is a Vietnam veteran. 
The intended effect of this proposed amendment is to clarify the 
criteria to ensure that they are applied consistently and to add a 
provision allowing the Director of the Compensation and Pension Service 
to adjust the payment level for individuals with disabling impairments 
due to spina bifida that are not addressed in the evaluation criteria.

DATES: Comments must be received on or before May 12, 2000.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW, Room 1154, Washington, DC 20420; or fax comments to: 
(202) 273-9289; or e-mail comments to ``[email protected]''. 
Comments should indicate that they are

[[Page 13255]]

in response to ``RIN 2900-AJ51.'' All comments received will be 
available for public inspection at the above address in the Office of 
Regulations Management, Room 1158, between the hours of 8:00 a.m. and 
4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant, 
Policy and Regulations Staff (211B), Compensation and Pension Service, 
Veterans Benefits Administration, Department of Veterans Affairs, 810 
Vermont Avenue NW, Washington, DC 20420, (202) 273-7230.

SUPPLEMENTARY INFORMATION: Section 421 of Public Law 104-204 authorized 
VA to provide certain benefits, including a monthly monetary allowance, 
to children suffering from spina bifida who are the natural children of 
Vietnam veterans. To implement the provisions of section 421, VA 
published final regulations, codified at 38 CFR 3.814, in the Federal 
Register on September 30, 1997 (62 FR 51274-281).
    38 CFR 3.814(d) provides evaluation criteria for determining which 
of three levels of monthly monetary allowance an eligible individual 
will receive for disability due to spina bifida. The evaluation 
criteria are based not only on the presence of medical impairments due 
to spina bifida, but also on the disabling effects of those impairments 
on ordinary day-to-day activities, including activities outside the 
home, such as holding a job, attending school, traveling, etc. The 
disabling effects vary significantly from person to person depending on 
the basic severity of the impairment itself and the extent to which the 
effects of the impairment can be modified or controlled through 
mechanical means, medication, surgery, etc. In January 1998, VA 
reviewed a sample of adjudicated spina bifida claims and, based on 
actual medical evidence used to adjudicate these claims, assessed the 
effectiveness of the evaluation criteria and the manner in which they 
were applied. Based on that assessment, a further review of the medical 
literature, and suggestions from several service organizations, we 
propose to amend the evaluation criteria as discussed below.
    Under current criteria, the effects of lower extremity impairment 
are evaluated as follows: Level I (the least severe level) if the child 
is ``able to walk without braces or other external support (although 
gait may be impaired)''; Level II if the child is ``ambulatory, but 
only with braces or other external support''; and Level III if the 
child is ``unable to ambulate.'' We found from our review that rating 
specialists applied the criteria inconsistently to individuals who 
occasionally use braces or a wheelchair, or who use them only outside 
the home. We propose to clarify the criteria so that the assessment is 
based on whichever mode of ambulation represents the individual's 
primary means of mobility in the community. Although some individuals 
may be able to move about their homes without braces or wheelchairs, in 
our view their primary means of mobility outside of the home is the 
best indicator of the extent to which their ability to engage in 
ordinary day-to-day activities is impaired. Furthermore, the change 
would assure that there is a clearly defined and uniform basis for 
assessing the effects of lower extremity impairment.
    The effects of bowel and bladder impairment are currently evaluated 
as follows: Level I if the child ``is continent of urine and feces''; 
Level II if the child ``requires drugs or intermittent catheterization 
or other mechanical means to maintain proper urinary bladder function, 
or mechanisms for proper bowel function''; and Level III if the child 
``has complete urinary or fecal incontinence.'' In reviewing 
adjudicated claims, we noted that the terms ``proper urinary bladder 
function'' and ``proper bowel function'' were interpreted differently 
by different raters. While many individuals with spina bifida do not 
have normal bowel or bladder function, neither are they completely 
incontinent of bowel or bladder. We propose to revise the criteria for 
evaluating the effects of bowel and bladder impairment to more clearly 
define the three levels and ensure that the criteria are consistently 
applied.
    We propose to evaluate the extent to which bladder impairment 
affects the ability of the individual to engage in ordinary day-to-day 
activities based on the length of time the individual is usually able 
to remain dry during waking hours, and whether or not the individual 
requires the use of medication or some other means to achieve that 
level of control. Specifically, we propose to pay an individual who 
requires medication or other means to control the effects of urinary 
bladder impairment, and who, no more than two times per week, is unable 
to remain dry for at least three hours at a time during waking hours at 
Level II, and an individual who, despite the use of medication or other 
means to control the effects of urinary bladder impairment, at least 
three times per week is unable to remain dry for three hours at a time 
during waking hours at Level III.
    The length of time that an individual is able to remain dry is an 
objective measure of the extent to which his or her ability to engage 
in ordinary day-to-day activities, such as working or attending school, 
is limited. Predictable three-hour intervals during waking hours that 
the individual can rely on remaining dry represent reasonable periods 
around which an individual can plan to conduct activities such as 
working, or attending school or social events, etc. At least one major 
study used a three-hour period in assessing whether conservative 
therapy could lessen or control incontinence (``The Chances of a Spina 
Bifida Patient Becoming Continent/Socially Dry By Conservative 
Therapy'' (M. Knoll and H Madersbacher, Paraplegia, 1993, Jan; 31 (1): 
22-27)). We propose to specify the frequency of inability to remain dry 
for at least three hours at a time during waking hours--no more than 
two times per week for Level II, and at least three times per week for 
Level III--to take into account the fact that individuals who are 
ordinarily able to remain dry for three hours may occasionally have an 
accidental involuntary release of urine due to reasons such as an acute 
illness, miscalculations in controlling fluid intake, etc. Basing 
evaluations on the frequency of inability to remain dry for at least 
three hours at a time during waking hours will assure that individuals 
with bladder impairment are consistently evaluated.
    One service organization recommended that we evaluate impairment of 
bowel and bladder function based on whether the individual has 
voluntary control of those functions. This organization suggested that 
doing otherwise punishes children with spina bifida for receiving 
appropriate treatment and rehabilitation because they are still, in 
fact, incontinent. Rather than punishing individuals who are able to 
alleviate urinary incontinence by treatment, the criteria recognize 
that the ability to alleviate incontinence improves the individual's 
ability to engage in ordinary day-to-day activities. Thus, we do not 
propose to adopt this recommendation.
    The same organization pointed out that procedures necessary to 
treat or compensate for loss of voluntary control are intrusive, 
unpleasant, and time consuming. Although we will continue to evaluate 
the disabling effects of bowel or bladder impairment by evaluating the 
ability of an individual to engage in ordinary day-to-day activities, 
we will provide for special review consideration

[[Page 13256]]

where treatment procedures for spina bifida result in disability of 
equivalent severity to the effects specified under Levels II and III.
    The same organization has recommended that we use the results of 
cystometry with urodynamic testing, a method of directly measuring 
certain bladder functions, such as muscle tone and bladder capacity, 
when evaluating bladder impairment. The main value of urodynamic 
testing is to determine the most appropriate treatment and to evaluate 
the effectiveness of the treatment. Urodynamic testing does not address 
the individual's ability to engage in ordinary day-to-day activities, 
which is the basis of the evaluation criteria. Furthermore, requiring 
claimants to undergo these additional tests if they are not available 
from their private medical records would be unnecessarily intrusive and 
would not add to the evaluation process. Accordingly, we do not propose 
to incorporate urodynamic testing into the criteria.
    The effects of bowel impairment may include difficulty emptying the 
bowel, fecal leakage, or both. We propose to evaluate the effects of 
bowel impairment based on the extent and frequency of fecal leakage and 
the degree to which the individual is able to control or modify the 
effects of impairment through bowel management techniques or other 
treatment (which would include suppositories, enemas, medication, 
biofeedback, behavior modification, diet, manual evacuation, etc.). We 
propose to determine the severity of fecal leakage based partly on 
whether or not the individual must wear absorbent materials on a daily 
basis. We propose that an individual who requires bowel management 
techniques or other treatment to control the effects of bowel 
impairment, but has only occasional or minimal fecal leakage, and does 
not need to wear absorbent materials every day, be evaluated at Level 
II. On the other hand, we propose that an individual who, despite the 
use of bowel management techniques or other treatment to control the 
effects of bowel impairment, has fecal leakage of such severity or 
frequency that he or she must wear absorbent materials every day, be 
evaluated at Level III. We also propose that an individual who 
regularly requires manual evacuation or digital stimulation to empty 
the bowel be evaluated at Level III, since these procedures may 
significantly interfere with ordinary day-to-day activities. We propose 
to substitute these criteria for the current requirement at Level III 
that there be ``complete fecal incontinence.'' The proposed criteria 
would take into account the extent to which fecal leakage limits the 
individual's ability to engage in ordinary day-to-day activities, and 
would enable raters to consistently and objectively evaluate 
individuals who, although neither totally continent nor incontinent, 
have partial control of the effects of bowel or bladder impairment.
    One organization has stated that, under VA's Schedule for Rating 
Disabilities, evaluations of disability of the bowel or bladder are 
based on the actual loss of function and control without regard to the 
use of auxiliary means and that it is self-evident that VA should use 
the same criteria for individuals with spina bifida to avoid rating 
inconsistencies. Section 1155 of title 38, United States Code, 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, and be at one of ten 
grades in 10 percent increments. Section 1805(b) of title 38, United 
States Code, on the other hand, 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 as determined in accordance with a 
schedule for rating such disabilities ``to be prescribed by the 
Secretary.'' By codifying the requirement elsewhere than 38 U.S.C. 
1155, 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, we believe that 
Congress expected that we would not use the rating schedule for 
evaluating disabilities resulting from spina bifida.
    At the urging of a number of service organizations, we considered 
using neurocognitive testing in lieu of standard IQ testing to measure 
the effects of intellectual impairment. However, we found no medical 
literature describing or assessing a standard method of neurocognitive 
screening to assess the effects of spina bifida. Major studies of 
disability due to spina bifida, such as ``Disability in Children with 
Myelomeningocele'' (J.H. Hagelsteen, J. Lagergren, H.R. Lie, F. 
Rasmussen, M.C. Borjeson, B. Lagerkvist, M. Muttilainen, K. Taudorf, 
and L. Kohler, Acta Paediatrica Scandinavica, 1989, 78 (5): 721-7), 
``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), and ``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) used IQ test results to measure intellectual 
impairment. These documents did not mention neurocognitive testing. 
Furthermore, neurocognitive testing is a complex and time-consuming 
process, involves many testing variables, and is neither as widely 
available nor as standardized as IQ testing. Therefore, in our 
judgment, it is not feasible to use neurocognitive testing to measure 
the effects of intellectual impairment due to spina bifida.
    A number of sources have suggested that verbal and performance IQ 
subscores are a better measure of impaired intellect than the overall 
IQ score, but offered no evidence to support that contention. The three 
studies referred to above relied on the overall IQ score rather than 
the subscores to measure intellectual impairment in individuals with 
spina bifida. We conducted a further search of the medical literature, 
but found no evidence that IQ subscores are a better measure of 
intellectual impairment than the overall IQ score. We therefore propose 
to continue using overall IQ scores to evaluate intellectual 
impairment.
    Although the evaluation criteria are based on the disabling effects 
of the most common, indeed nearly universal, medical impairments that 
result from spina bifida, individuals may have other disabilities that 
result from spina bifida. Several organizations have expressed concern 
that individuals with conditions such as blindness or seizures 
resulting from spina bifida might be underpaid under the current 
criteria. We therefore propose to allow the Director of the 
Compensation and Pension Service to increase the payment level of an 
individual who would otherwise be paid at Level I or II and has one or 
more disabilities, such as blindness, uncontrolled seizures, or renal 
failure that result either from spina bifida or from treatment 
procedures for spina bifida, to the level that, in his or her judgment, 
best represents the extent to which the disabilities limit the 
individual's ability to engage in ordinary day-to-day activities, 
including activities outside the home. This provision would allow the 
Director to award an increase in the level of payment to Level II or 
Level III for any type of disability resulting from spina bifida or 
treatment procedures for spina bifida, if the effects of a disability 
are of equivalent severity to the effects specified under Level II or 
III. Therefore, should the results of neurocognitive testing or other 
special examinations,

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for example, be submitted, they could be considered, along with all 
other medical information, in determining whether the level of payment 
should be increased.
    Since only a very limited number of individuals are eligible for 
the monthly monetary allowance for spina bifida, reserving the 
authority to increase payments based on disabilities not addressed in 
the evaluation criteria to the Director of the Compensation and Pension 
Service is feasible. Further, this procedure will assure that the 
Compensation and Pension Service is aware of any conditions occurring 
frequently enough to warrant further revisions of the criteria.
    Although the current regulation uses the terms ``child'' and 
``children,'' many of those entitled to this benefit are now 
adolescents or adults. Therefore, we propose to change the words 
``child'' or ``children'' to ``individual'' or ``individuals'' 
throughout Sec. 3.814. We also propose to define the term 
``individual'' in Sec. 3.814(c)(2). This definition will make it clear 
that this regulation applies to eligible individuals regardless of age.
    We also propose to amend the regulations to provide that, when VA 
is required to reassess an individual's level of disability for 
purposes of the monetary allowance, VA will pay the individual at Level 
I in the absence of evidence adequate to support a higher level of 
disability or if the individual fails to report, ``without good cause'' 
for a scheduled examination, and to provide examples of good cause. 
This provision is similar to 38 CFR 3.655(a), ``Failure to report for 
Department of Veterans Affairs examination,'' as applied to other VA 
claimants.
    The Secretary hereby certifies that this regulatory amendment 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 amendment would not directly affect any small 
entities. Only individuals could be directly affected. Therefore, 
pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial 
and final regulatory flexibility analysis requirements of sections 603 
and 604.
    This regulatory amendment has been reviewed by the Office of 
Management and Budget under the provisions of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993.
    The Catalog of Federal Domestic Assistance program numbers are 
64.104 and 64.109.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Radioactive materials, Veterans, Vietnam.

    Approved: November 18, 1999.
Togo D. West, Jr.,
Secretary of Veterans Affairs.
    For the reasons set out in the preamble, 38 CFR part 3 is proposed 
to be amended as set forth below:

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. 3.814, the heading for the section and paragraphs (a), 
(c)(2), and (d) are revised to read as follows:


Sec. 3.814  Monetary allowance under 38 U.S.C. 1805 for an individual 
suffering from spina bifida whose biological father or mother is or was 
a Vietnam veteran.

    (a) VA will pay a monthly allowance based upon the level of 
disability determined under the provisions of paragraph (d) of this 
section to or for an individual who it has determined is suffering from 
spina bifida and whose biological father or mother is or was a Vietnam 
veteran. Receipt of this allowance will not affect the right of the 
individual or any other related individual to receive any other benefit 
to which he or she may be entitled under any law administered by VA. An 
individual suffering from spina bifida is entitled to only one monthly 
allowance under this section, even if the individual's biological 
father and mother are or were both Vietnam veterans.
* * * * *
    (c) * * *
    (2) Individual. For the purposes of this section, the term 
``individual'' means a person, regardless of age or marital status, 
whose biological father or mother is or was a Vietnam veteran and who 
was 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 an individual's biological father or 
mother is or was a Vietnam veteran.
    (d) (1) Except as otherwise specified in this paragraph, VA will 
determine the level of payment as follows:
    (i) Level I. The individual walks without braces or other external 
support as his or her primary means of mobility in the community, has 
no sensory or motor impairment of the upper extremities, has an IQ of 
90 or higher, and is continent of urine and feces without the use of 
medication or other means to control incontinence.
    (ii) Level II. Provided that none of the disabilities is severe 
enough to warrant payment at Level III, and the individual: walks with 
braces or other external support as his or her primary means of 
mobility in the community; or, has sensory or motor impairment of the 
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 
medication or other means to control the effects of urinary bladder 
impairment and is unable no more than two times per week to remain dry 
for at least three hours at a time during waking hours; or, requires 
bowel management techniques or other treatment to control the effects 
of bowel impairment but does not have fecal leakage severe or frequent 
enough to require daily wearing of absorbent materials.
    (iii) Level III. The individual uses a wheelchair as his or her 
primary means of mobility in the community; or, has sensory or motor 
impairment of the upper extremities severe enough to prevent grasping a 
pen, feeding self, and performing self care; or, has an IQ of 69 or 
less; or, despite the use of medication or other means to control the 
effects of urinary bladder impairment, at least three times per week is 
unable to remain dry for three hours at a time during waking hours; or, 
despite bowel management techniques or other treatment to control the 
effects of bowel impairment, has fecal leakage severe or frequent 
enough to require daily wearing of absorbent materials; or regularly 
requires manual evacuation or digital stimulation to empty the bowel.
    (2) If an individual who would otherwise be paid at Level I or II 
has one or more disabilities, such as blindness, uncontrolled seizures, 
or renal failure that result either from spina bifida, or from 
treatment procedures for spina bifida, the Director of the Compensation 
and Pension Service may increase the monthly payment to the level that, 
in his or her judgment, best represents the extent to which the 
disabilities resulting from spina bifida limit the individual's ability 
to engage in ordinary day-to-day activities, including activities 
outside the home. A Level II or Level III

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payment will be awarded depending on whether the effects of a 
disability are of equivalent severity to the effects specified under 
Level II or Level III.
    (3) 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, 
provided the statements or reports are adequate for assessing the level 
of disability due to spina bifida under the provisions of paragraph 
(d)(1) of this section. In the absence of adequate medical information, 
VA will schedule an examination for the purpose of assessing the level 
of disability.
    (4) VA will pay an individual eligible for a monetary allowance due 
to spina bifida at Level I unless or until it receives medical evidence 
supporting a higher payment. When required to reassess the level of 
disability under paragraph (d)(5) or (d)(6) of this section, VA will 
pay an individual eligible for this monetary allowance at Level I in 
the absence of evidence adequate to support a higher level of 
disability or if the individual fails to report, without good cause, 
for a scheduled examination. Examples of good cause include, but are 
not limited to, the illness or hospitalization of the claimant, death 
of an immediate family member, etc.
    (5) VA will pay individuals under the age of one year 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 individual from ambulating, grasping a pen, 
feeding himself or herself, performing self care, or from achieving 
urinary or fecal continence. If any of those deficits are present, VA 
will pay the individual at Level III. In either case, VA will reassess 
the level of disability when the individual reaches the age of one 
year.
    (6) VA will reassess the level of payment whenever it receives 
medical evidence indicating that a change is warranted. For individuals 
between the ages of one and twenty-one, however, it must reassess the 
level of payment at least every five years.

(Authority: 38 U.S.C. 501, 1805)

[FR Doc. 00-6066 Filed 3-10-00; 8:45 am]
BILLING CODE 8320-01-P