[Federal Register Volume 66, Number 44 (Tuesday, March 6, 2001)]
[Rules and Regulations]
[Pages 13435-13437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5450]
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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: Final rule.
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SUMMARY: This document amends 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 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: Effective Date: This amendment is effective April 5, 2001.
FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,
Policy and Regulations Staff (211A), Compensation and Pension Service,
Veterans Benefits Administration, Department of Veterans Affairs, 810
Vermont Avenue NW., Washington, DC 20420, (202) 273-7230.
SUPPLEMENTARY INFORMATION: In the Federal Register of March 13, 2000
(65 FR 13254), we published a proposal to revise the criteria for
determining the level of payment for an individual born with spina
bifida whose biological father or mother is a Vietnam veteran. The
proposed revisions were developed based on VA's review of a sample of
adjudicated spina bifida claims to determine the effectiveness of the
evaluation criteria and how they were applied, a further review of the
medical literature, and suggestions from several veterans service
organizations. The proposed evaluation criteria were based on certain
medical impairments due to spina bifida and on the disabling effects of
those impairments on ordinary day-to-day activities. We also proposed
to allow the Director of the Compensation and Pension Service to
increase the payment level for an individual with spina bifida who has
such impairments as blindness, uncontrolled seizures, or renal failure.
In addition, we proposed to change the references to ``child'' and
``children'' to ``individual'' and ``individuals'' throughout 38 CFR
3.814 and to define the word ``individual'' to make it clear that the
regulation applies to eligible individuals regardless of age.
We received one comment, which was from the Veterans of Foreign
Wars.
Under VA's initial evaluation criteria for individuals with
disabilities due to spina bifida, the effects of bowel and bladder
impairment were evaluated as follows: Level I if ``continent of urine
and feces''; Level II if ``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 ``has complete urinary or fecal incontinence.'' We proposed that
the effects of bowel and bladder impairment be evaluated as follows:
Level I if ``continent of urine and feces without the use of medication
or other means to control incontinence''; Level II if ``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''; and Level III
if ``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.''
The commenter suggested that we change the Level III requirement
for ``daily wearing of absorbent materials'' to ``wearing of absorbent
materials on most days'' because a requirement for daily wearing of
absorbent materials is too stringent, considering that constipation may
occur intermittently and absorbent materials not be necessary for a day
or two.
On further consideration, we agree that the commenter's suggested
change would be an improvement, in view of the fact that when
constipation is present, the individual might feel comfortable not
wearing absorbent materials for a day or so, although they would
ordinarily wear them on most days and be incontinent a substantial part
of the time. We have therefore revised the criteria for Level III by
changing ``daily wearing of absorbent materials'' to ``wearing of
absorbent materials at least four days a week'' and revised the Level
II criteria accordingly.
The commenter also felt that Level III should be assigned for those
who undergo a surgical procedure that permanently alters the structure
and/or function of the bowel or bladder, for example, a colostomy,
because these surgical alterations and appliances disrupt day-to-day
activities as much as the frequent need to wear absorbent materials.
We agree in part with the commenter. There are a number of surgical
procedures and appliances that may be used to improve bowel and bladder
function. At times they make an individual continent or at least
decrease the extent or frequency of incontinence; however, they are not
always successful. For example, an artificial bladder sphincter that is
implanted for urinary incontinence might result in improved bladder
function with diminished incontinence or no incontinence at all, but it
might also fail to improve bladder function significantly. When an
individual must use appliances or undergo surgical procedures, at least
a Level II assignment would be warranted because such use or procedure
is akin to the use of medication or other means to control the effects
of urinary bladder impairment. If the device or surgery does not
restore continence sufficiently,
[[Page 13436]]
a Level III assignment would be warranted. However, the presence of an
appliance or history of a surgical procedure does not necessarily mean
an individual will have the extent of functional impairment
contemplated by the Level III criteria. If incontinence is diminished
by a surgical procedure or appliance, day-to-day functioning should be
improved, and a Level III payment would not be warranted. Therefore, no
overall change in criteria is needed to assure the assignment of an
appropriate payment level to individuals who must wear an appliance or
who have undergone a surgical procedure that alters the structure of
the bowel or bladder.
In the case of a colostomy, as with other procedures, some
individuals are helped more than others. Some become continent of feces
with a colostomy and may not need to wear a bag. In this case, the
resulting impairment is contemplated by the criteria listed under Level
II. Individuals who have a colostomy have required surgery but may not
have fecal leakage severe or frequent enough to require wearing of
absorbent materials on most days. In fact, they may not need to wear
absorbent materials at all. Others with a colostomy remain incontinent
and must wear a bag. In our judgment, the need to wear a bag is akin to
the Level III criteria, specifically, the need to wear absorbent
materials. To assure consistency of evaluations for a relatively common
procedure with different possible outcomes, we have added ``a colostomy
that requires wearing a bag'' to the Level III criteria and ``a
colostomy that does not require wearing a bag'' to the Level II
criteria. Impairment resulting from other procedures and the use of
other appliances can be assessed using the existing criteria to
determine whether Level II (which would be the minimum) or Level III is
appropriate, according to the extent of urinary or fecal incontinence.
VA appreciates the comment submitted in response to the proposed
rule, which is now adopted with the amendments noted above.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
Executive Order 12866
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.
Regulatory Flexibility Act
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. The reason for this certification is that this
amendment would not directly affect any small entities. Only VA
beneficiaries 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.
(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: February 15, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is 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 no more than two times per week is unable 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 wearing of absorbent materials at least four days a
week; or, has a colostomy that does not require wearing a bag.
(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
[[Page 13437]]
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 wearing of absorbent materials at least four days a week; or,
regularly requires manual evacuation or digital stimulation to empty
the bowel; or, has a colostomy that requires wearing a bag.
(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 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. 01-5450 Filed 3-5-01; 8:45 am]
BILLING CODE 8320-01-P