[Federal Register Volume 65, Number 107 (Friday, June 2, 2000)]
[Rules and Regulations]
[Pages 35280-35283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13660]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3, 17, and 21

RIN 2900-AJ25


Children Suffering from Spina Bifida Who Are Children of Vietnam 
Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA) 
regulations concerning benefits for children suffering from spina 
bifida who are children of Vietnam veterans. This is necessary to 
implement statutory

[[Page 35281]]

changes contained in the Veterans' Benefits Act of 1997.

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) 273-7210.

SUPPLEMENTARY INFORMATION: Section 421 of Pub. L. 104-204 added a new 
chapter 18 to title 38, United States Code, authorizing VA to provide 
certain benefits to children suffering from spina bifida who are the 
natural children of Vietnam veterans. VA published three sets of 
regulations to implement the provisions of section 421 of Pub. L. 104-
204, i.e. regulations concerning monetary allowances, provision of 
healthcare, and provision of vocational training and rehabilitation, in 
the Federal Register of September 30, 1997 (62 FR 51273-51296).
    Section 404 of Pub. L. 105-114, the Veterans' Benefits Act of 1997, 
enacted on November 21, 1997, amended chapter 18 of title 38, United 
States Code. This document revises VA's regulations to implement those 
statutory amendments. The changes concerning the definition of 
``Vietnam veteran,'' the definition of ``child,'' and the submission of 
social security numbers concern all three sets of regulations. The 
other changes made by this document only concern the monetary allowance 
regulations.
    Public Law No. 104-204 defined the term ``Vietnam veteran'' as a 
``veteran'' who performed active military, naval, or air service in the 
Republic of Vietnam ``during the Vietnam era.'' Public Law No. 105-114 
amended that definition to refer to 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 characterization of the individual's 
service.'' We are amending 38 CFR 3.814(c)(1) of the monetary allowance 
regulations accordingly. This change also affects the spina bifida 
regulations concerning provision of healthcare (see 38 CFR 17.901) and 
provision of vocational training and rehabilitation (see 38 CFR 
21.8012).
    Public Law No. 104-204 defined the term ``child'' as meaning a 
natural child of a Vietnam veteran, regardless of age or marital 
status, who was conceived after the date on which the veteran first 
entered the Republic of Vietnam ``during the Vietnam era.'' Public Law 
No. 105-114 amended the definition of ``child'' by changing ``during 
the Vietnam era'' to ``during the period beginning on January 9, 1962, 
and ending on May 7, 1975.'' We are amending 38 CFR 3.814(c)(2) of the 
monetary allowance regulations accordingly. This change also affects 
the spina bifida regulations concerning provision of healthcare (see 38 
CFR 17.901) and provision of vocational training and rehabilitation 
(see 38 CFR 21.8012).
    Public Law No. 105-114 revised 38 U.S.C. 1806 so that various 
administrative provisions of title 38, United States Code, including 
the following, are applicable to those applying for or receiving spina 
bifida benefits: 38 U.S.C. 5101(c), 5110(a), 5110(b)(2), 5110(g), 
5110(i), 5111, 5112(a), 5112(b)(9), and 5112(b)(10). Accordingly, we 
are making the following changes.
     We are amending 38 CFR 3.216 to provide that anyone 
applying for or receiving benefits for a child suffering from spina 
bifida, as a condition for receipt or continued receipt of benefits, 
must furnish VA, upon request, his or her social security number, and 
the social security number of anyone based upon whom benefits are 
sought or received (38 U.S.C. 5101(c)).
     We are amending 38 CFR 3.814 of the monetary allowance 
regulations to provide that the effective date of a monthly award for a 
child suffering from spina bifida based on an original claim, a claim 
reopened after final adjudication, or a claim for increase will be 
fixed in accordance with the facts found, but will not be earlier than 
the date of receipt of the application for benefits (38 U.S.C. 
5110(a)).
     We are amending 38 CFR 3.814 to provide that the effective 
date of an increased monthly award for a child suffering from spina 
bifida will be the earliest date as of which it is ascertainable that 
an increase in disability had occurred, if application is received by 
VA within one year of that date (38 U.S.C. 5110(b)(2)).
     We are amending 38 CFR 3.114 to provide that any award or 
increase of a monthly award for a child suffering from spina bifida 
pursuant to any law or administrative issue will not be effective prior 
to the effective date of the law or administrative issue and will not 
be retroactive more than one year from the date of application or the 
date of administrative determination of entitlement, whichever is 
earlier (38 U.S.C. 5110(g)).
     We are amending 38 CFR 3.814 to provide that a monthly 
award for a child suffering from spina bifida benefits based on a 
disallowed claim reopened on the basis of a correction of military 
records will be effective on the date application was made for the 
correction, or the date the disallowed claim was filed, whichever is 
later, but not retroactive for more than one year from the reopening of 
the disallowed claim (38 U.S.C. 5110(i)).
     We are amending 38 CFR 3.31 to provide that the payment of 
a monthly award for a child suffering from spina bifida may not be made 
for any period before the first day of the month following the month in 
which the award or increase became effective (38 U.S.C. 5111).
     We are amending 38 CFR 3.814 to provide that the effective 
date of a reduction or discontinuance of a monthly award for a child 
suffering from spina bifida will be fixed in accordance with the facts 
found, that reduction or discontinuance of such benefits by reason of 
beneficiary error will be the effective date of the award, and that 
reduction or discontinuance of such benefits by reason of 
administrative error will be effective as of the date of last payment 
(38 U.S.C. 5112(a), (b)(9), (b)(10)).
    Public Law No. 104-204 provided that the amounts of the monthly 
monetary allowance to a child with spina bifida are subject to 
adjustment under the provisions of 38 U.S.C. 5312, which provides for 
the adjustment of certain VA benefit rates whenever there is an 
increase in benefit amounts payable under title II of the Social 
Security Act (42 U.S.C. 401 et seq.). 38 U.S.C. 5312(c)(2) provides 
that whenever rates are so increased, the Secretary may round those 
rates in such manner as the Secretary considers equitable and 
appropriate. The Secretary has determined that since all other benefits 
administered under VA's adjudication regulations (38 CFR part 3) are 
paid in even dollar amounts, for ease of administration it is 
appropriate to round rate increases concerning the spina bifida 
monetary benefit.
    Under procedures established at 38 CFR 3.29, when adjusting the 
annual basic benefit rates for the pension programs and parents' 
dependency and indemnity compensation, if the resulting amounts are not 
even dollar amounts, VA rounds them to the next higher dollar. In 
computing monthly rates from the adjusted annual rates, if the 
resulting amounts are not even dollar amounts, VA rounds to the next 
lower dollar. Since Pub. L. 104-204 authorized the monetary allowance 
for spina bifida at a monthly rate rather than an annual rate, it is 
necessary to round only one time when determining a revised rate. Under 
38 CFR 3.29, if rounding is necessary after the first calculation, the 
resulting rate is always

[[Page 35282]]

rounded up. We believe therefore that since only one rounding is 
required to revise the monetary allowance for spina bifida, it is both 
equitable and appropriate to round up. We are amending Sec. 3.29 
accordingly.
    Public Law No. 105-114 provides that the amendments to chapter 18 
of title 38, United States Code, are effective as of October 1, 1997.
    This final rule reflects statutory requirements and reflects issues 
relating to agency management. Accordingly, there is a basis for 
dispensing with prior notice and comment and delayed effective date 
provisions of 5 U.S.C. 552 and 553.
    No regulatory flexibility analysis is required under the Regulatory 
Flexibility Act (5 U.S.C. 601-612). Even so, 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. The final rule will not directly affect 
any small entities. Only VA beneficiaries are directly affected.
    The Catalog of Federal Domestic Assistance program number is 
64.127.

List of Subjects

38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Reporting and recordkeeping requirements, 
Veterans, Vietnam.

38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs-health, Grant programs-veterans, 
Health care, Health facilities, Health professions, Health records, 
Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing homes, Philippines, Reporting 
and recordkeeping requirements, Scholarships and fellowships, Travel 
and transportation expenses, Veterans.

38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, Defense 
Department, Education, Employment, Grant programs-education, Grant 
programs-veterans, Health care, Loan programs-education, Loan programs-
veterans, Manpower training programs, Reporting and recordkeeping 
requirements, Schools, Travel and transportation expenses, Veterans, 
Vocational education, Vocational rehabilitation.

    Approved: February 2, 2000.
Togo D. West, Jr.,
Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, 38 CFR parts 3, 17, and 
21 are 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. 3.29, paragraph (c) is added, to read as follows:


Sec. 3.29  Rounding.

* * * * *
    (c) Monthly rates under 38 U.S.C. 1805. When increasing the monthly 
monetary allowance rates under Sec. 3.814 for children suffering from 
spina bifida (see Sec. 3.27(c)), VA will round any resulting rate that 
is not an even dollar amount to the next higher dollar.

    Authority: 38 U.S.C. 1805(b)(3), 5312(c)(2)).


    3. Section 3.31 is amended as follows:
    a. The introductory text is amended in the first sentence by 
removing ``compensation, pension or dependency and indemnity 
compensation'' and adding, in its place, ``compensation, pension, 
dependency and indemnity compensation, or the monetary allowance under 
38 U.S.C. 1805 for a child suffering from spina bifida who is a child 
of a Vietnam veteran''; and
    b. Paragraph (c)(4)(ii) and the authority citation at the end of 
the section are revised to read as follows:


Sec. 3.31  Commencement of the period of payment.

* * * * *
    (c) * * *
    (4) * * *
    (ii) Increases in Improved Pension, parents' dependency and 
indemnity compensation, or the monetary allowance for children 
suffering from spina bifida pursuant to Sec. 3.27, or
* * * * *

    Authority: 38 U.S.C. 1806, 5111.


    4. Section 3.114 is amended as follows:
    a. Paragraph (a) introductory text is amended by removing ``Where 
pension, compensation, or dependency and indemnity compensation'' in 
each place it appears and adding, in its place, ``Where pension, 
compensation, dependency and indemnity compensation, or the monetary 
allowance under 38 U.S.C. 1805 for a child suffering from spina bifida 
who is a child of a Vietnam veteran''; and
    b. The authority citation at the end of paragraph (a) is revised to 
read as follows:


Sec. 3.114  Change of law or Department of Veterans Affairs issue.

* * * * *

    Authority: 38 U.S.C. 1806, 5110(g)).
* * * * *

    5. In Sec. 3.216, the section heading is amended by removing 
``number'' and adding, in its place, ``numbers''; the first sentence is 
amended immediately following ``of this part'' by adding ``, or the 
monetary allowance for a child suffering from spina bifida who is a 
child of a Vietnam veteran under Sec. 3.814 of this part,''; and the 
authority citation is revised to read as follows:


Sec. 3.216  Mandatory disclosure of social security numbers.

* * * * *

    Authority: 38 U.S.C. 1806, 5101(c)).


    6. Section 3.814 is amended as follows:
    a. Paragraph (c)(1) is amended by removing ``a veteran'' and 
adding, in its place, ``an individual''; by removing ``during the 
Vietnam era'' and adding, in its place, ``during the period beginning 
on January 9, 1962, and ending on May 7, 1975, without regard to the 
characterization of the individual's service'';
    b. Paragraph (c)(2) is amended by removing ``during the Vietnam 
era'' and adding, in its place, ``during the period beginning on 
January 9, 1962, and ending on May 7, 1975''; and
    c. Paragraphs (e) and (f) are added immediately following paragraph 
(d)(5) and the authority citation at the end of the section is revised 
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.

* * * * *
    (e) Effective dates. Except as otherwise provided, VA will award 
the monetary allowance for children suffering from spina bifida based 
on an original claim, a claim reopened after final disallowance, or a 
claim for increase as of the date VA received the claim or the date 
entitlement arose, whichever is later.
    (1) VA will increase benefits as of the earliest date the evidence 
establishes that the level of severity increased, but

[[Page 35283]]

only if the beneficiary applies for an increase within one year of that 
date.
    (2) If a claimant reopens a previously disallowed claim based on 
corrected military records, VA will award the benefit from the latest 
of the following dates: the date the veteran or beneficiary applied for 
a correction of the military records; the date the disallowed claim was 
filed; or, the date one year before the date of receipt of the reopened 
claim.
    (f) Reductions and discontinuances. VA will generally reduce or 
discontinue awards according to the facts found except as provided in 
Secs. 3.105 and 3.114(b).
    (1) If benefits were paid erroneously because of beneficiary error, 
VA will reduce or discontinue benefits as of the effective date of the 
erroneous award.
    (2) If benefits were paid erroneously because of administrative 
error, VA will reduce or discontinue benefits as of the date of last 
payment.
* * * * *

    Authority: 38 U.S.C. 1805, 1806, 5110, 5112.

PART 17--MEDICAL

    1. The authority citation for part 17 continues to read as follows:

    Authority: 38 U.S.C. 501, 1721 unless otherwise noted.

    2. The authority citation at the end of Sec. 17.901 is revised to 
read as follows:


Sec. 17.901  Definitions.

* * * * *

    Authority: 38 U.S.C. 101(2), 1801-1806, Pub. L. 105-114.


    3. The authority citation at the end of Sec. 17.902 is revised to 
read as follows:


Sec. 17.902  Preauthorization.

* * * * *

    Authority: 38 U.S.C. 101(2), 1801-1806, Pub. L. 105-114.

    4. The authority citation at the end of Sec. 17.903 is revised to 
read as follows:


Sec. 17.903  Payment.

* * * * *

    Authority: 38 U.S.C. 101(2), 1801-1806, Pub. L. 105-114.

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart M--Vocational Training and Rehabilitation for Vietnam 
Veterans' Children With Spina Bifida

    1. The authority citation for part 21, subpart M continues to read 
as follows:

    Authority: 38 U.S.C. 101, 501, 512, 1151 note, 1801-1806, 5112, 
unless otherwise noted.


    2. The authority citation at the end of Sec. 21.8012 is revised to 
read as follows:


Sec. 21.8012  Definitions and abbreviations.

* * * * *

    Authority: 38 U.S.C. 101(2), 1801, 1804, Pub. L. 105-114.

    3. The authority citation at the end of Sec. 21.8014 is revised to 
read as follows:


Sec. 21.8014  Application.

* * * * *

    Authority: 38 U.S.C. 101(2), 1801, 1804, Public Law 105-114).
[FR Doc. 00-13660 Filed 6-1-00; 8:45 am]
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