**§3.815 Monetary allowance under 38 U.S.C. chapter 18 for an individual
with**

**disability from covered birth defects whose biological mother is or**

**was a Vietnam veteran; identification of covered birth defects.**

\(a\) *Monthly monetary allowance*.

\(1\) *General*. VA will pay a monthly monetary allowance under
subchapter II of 38 U.S.C. chapter 18 to or for an individual whose
biological mother is or was a Vietnam veteran and who VA has determined
to have disability resulting from one or more covered birth defects.
Except as provided in paragraph (a)(3) of this section, the amount of
the monetary allowance paid will be based upon the level of such
disability suffered by the individual, as determined in accordance with
the provisions of paragraph (e) of this section.

\(2\) *Affirmative evidence of cause other than mother's service during
Vietnam era*. No monetary allowance will be provided under this section
based on a particular birth defect of an individual in any case where
affirmative evidence establishes that the birth defect results from a
cause other than the active military, naval, or air service of the
individual's mother during the Vietnam era and, in determining the level
of disability for an individual with more than one birth defect, the
particular defect resulting from other causes will be excluded from
consideration. This will not prevent VA from paying a monetary allowance
under this section for other birth defects.

\(3\) *Nonduplication; spina bifida*. In the case of an individual whose
only covered birth defect is spina bifida, a monetary allowance will be
paid under §3.814, and not under this section, nor will the individual
be evaluated for disability under this section. In the case of an
individual who has spina bifida and one or more additional covered birth
defects, a monetary allowance will be paid under this section and the
amount of the monetary allowance will be not less than the amount the
individual would receive if his or her only covered birth defect were
spina bifida. If, but for the individual's one or more additional
covered birth defects, the monetary allowance payable to or for the
individual would be based on an evaluation at Level I, II, or III,
respectively, under §3.814(d), the evaluation of the individual's level
of disability under paragraph (e) of this section will be not less than
Level II, III, or IV, respectively.

\(b\) *No effect on other VA benefits*. Receipt of a monetary allowance
under 38 U.S.C. chapter 18 will not affect the right of the individual,
or the right of any person based on the individual's relationship to
that person, to receive any other benefit to which the individual, or
that person, may be entitled under any law administered by VA.

\(c\) *Definitions*.

\(1\) *Vietnam veteran*. For the purposes of this section, the term
*Vietnam veteran* means a person who performed active military, naval,
or air service in the Republic of Vietnam during the period beginning on
February 28, 1961, and ending on May 7, 1975, without regard to the
characterization of the person's service. 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.

\(2\) *Individual*. For the purposes of this section, the term
individual means a person, regardless of age or marital status, whose
biological mother is or was a Vietnam veteran and who was conceived
after the date on which the veteran first entered the Republic of
Vietnam during the period beginning on February 28, 1961, and ending on
May 7, 1975. Notwithstanding the provisions of §3.204(a)(1), VA will
require the types of evidence specified in §§3.209 and 3.210 sufficient
to establish that a person is the biological son or daughter of a
Vietnam veteran.

\(3\) *Covered birth defect*. For the purposes of this section, the term
*covered birth defect* means any birth defect identified by VA as a
birth defect that is associated with the service of women Vietnam
veterans in the Republic of Vietnam during the period beginning on
February 28, 1961, and ending on May 7, 1975, and that has resulted, or
may result, in permanent physical or mental disability. However, the
term covered birth defect does not include a condition due to a:

\(i\) Familial disorder;

\(ii\) Birth-related injury; or

\(iii\) Fetal or neonatal infirmity with well-established causes.

\(d\) *Identification of covered birth defects*. All birth defects that
are not excluded under the provisions of this paragraph are covered
birth defects.

\(1\) Covered birth defects include, but are not limited to, the
following (however, if a birth defect is determined to be familial in a
particular family, it will not be a covered birth defect):

> \(i\) Achondroplasia;
>
> \(ii\) Cleft lip and cleft palate;
>
> \(iii\) Congenital heart disease;
>
> \(iv\) Congenital talipes equinovarus (clubfoot);
>
> \(v\) Esophageal and intestinal atresia;
>
> \(vi\) Hallerman-Streiff syndrome;
>
> \(vii\) Hip dysplasia;
>
> \(viii\) Hirschprung's disease (congenital megacolon);
>
> \(ix\) Hydrocephalus due to aqueductal stenosis;
>
> \(x\) Hypospadias;
>
> \(xi\) Imperforate anus;
>
> \(xii\) Neural tube defects (including spina bifida, encephalocele,
> and anencephaly);
>
> \(xiii\) Poland syndrome;
>
> \(xiv\) Pyloric stenosis;
>
> \(xv\) Syndactyly (fused digits);
>
> \(xvi\) Tracheoesophageal fistula;
>
> \(xvii\) Undescended testicle; and
>
> \(xviii\) Williams syndrome.

\(2\) Birth defects that are familial disorders, including hereditary
genetic conditions, are not covered birth defects. Familial disorders
include, but are not limited to, the following, unless the birth defect
is not familial in a particular family:

\(i\) Albinism;

\(ii\) Alpha-antitrypsin deficiency;

\(iii\) Crouzon syndrome;

\(iv\) Cystic fibrosis;

\(v\) Duchenne's muscular dystrophy;

\(vi\) Galactosemia;

\(vii\) Hemophilia;

\(viii\) Huntington's disease;

\(ix\) Hurler syndrome;

\(x\) Kartagener's syndrome (Primary Ciliary Dyskinesia);

\(xi\) Marfan syndrome;

\(xii\) Neurofibromatosis;

\(xiii\) Osteogenesis imperfecta;

\(xiv\) Pectus excavatum;

\(xv\) Phenylketonuria;

\(xvi\) Sickle cell disease;

\(xvii\) Tay-Sachs disease;

\(xviii\) Thalassemia; and

\(xix\) Wilson's disease.

\(3\) Conditions that are congenital malignant neoplasms are not covered
birth defects. These include, but are not limited to, the following:

\(i\) Medulloblastoma;

\(ii\) Neuroblastoma;

\(iii\) Retinoblastoma;

\(iv\) Teratoma; and

\(v\) Wilm's tumor.

\(4\) Conditions that are chromosomal disorders are not covered birth
defects. These include, but are not limited to, the following:

\(i\) Down syndrome and other Trisomies;

\(ii\) Fragile X syndrome;

\(iii\) Klinefelter's syndrome; and

\(iv\) Turner's syndrome.

\(5\) Conditions that are due to birth-related injury are not covered
birth defects. These include, but are not limited to, the following:

> \(i\) Brain damage due to anoxia during or around time of birth;
>
> \(ii\) Cerebral palsy due to birth trauma;
>
> \(iii\) Facial nerve palsy or other peripheral nerve injury;
>
> \(iv\) Fractured clavicle; and
>
> \(v\) Horner's syndrome due to forceful manipulation during birth.

\(6\) Conditions that are due to a fetal or neonatal infirmity with
well-established causes or that are miscellaneous pediatric conditions
are not covered birth defects. These include, but are not limited to,
the following:

> \(i\) Asthma and other allergies;
>
> \(ii\) Effects of maternal infection during pregnancy, including but
> not limited to, maternal rubella, toxoplasmosis, or syphilis;
>
> \(iii\) Fetal alcohol syndrome or fetal effects of maternal drug use;
>
> \(iv\) Hyaline membrane disease;
>
> \(v\) Maternal-infant blood incompatibility;
>
> \(vi\) Neonatal infections;
>
> \(vii\) Neonatal jaundice;
>
> \(viii\) Post-infancy deafness/hearing impairment (onset after the age
> of one year);
>
> \(ix\) Prematurity; and
>
> \(x\) Refractive disorders of the eye.

\(7\) Conditions that are developmental disorders are not covered birth
defects. These include, but are not limited to, the following:

> \(i\) Attention deficit disorder;
>
> \(ii\) Autism;
>
> \(iii\) Epilepsy diagnosed after infancy (after the age of one year);
>
> \(iv\) Learning disorders; and
>
> \(v\) Mental retardation (unless part of a syndrome that is a covered
> birth defect).

\(8\) Conditions that do not result in permanent physical or mental
disability are not covered birth defects. These include, but are not
limited to:

> \(i\) Conditions rendered non-disabling through treatment;
>
> \(ii\) Congenital heart problems surgically corrected or resolved
> without disabling residuals;
>
> \(iii\) Heart murmurs unassociated with a diagnosed cardiac
> abnormality;
>
> \(iv\) Hemangiomas that have resolved with or without treatment; and
>
> \(v\) Scars (other than of the head, face, or neck) as the only
> residual of corrective surgery for birth defects.

\(e\) *Disability evaluations*. Whenever VA determines, upon receipt of
competent medical evidence, that an individual has one or more covered
birth defects, VA will determine the level of disability currently
resulting, in combination, from the covered birth defects and associated
disabilities. No monetary allowance will be payable under this section
if VA determines under this paragraph that an individual has no current
disability resulting from the covered birth defects, unless VA
determines that the provisions of paragraph (a)(3) of this section are
for application. Except as otherwise provided in paragraph (a)(3) of
this section, VA will determine the level of disability as follows:

\(1\) *Levels of disability*.

\(i\) *Level 0*. The individual has no current disability resulting from
covered birth defects.

\(ii\) *Level I*. The individual meets one or more of the following
criteria:

\(A\) The individual has residual physical or mental effects that only
occasionally or intermittently limit or prevent some daily activities;
or

\(B\) The individual has disfigurement or scarring of the head, face, or
neck without gross distortion or gross asymmetry of any facial feature
(nose, chin, forehead, eyes (including eyelids), ears (auricles),
cheeks, or lips).

\(iii\) *Level II*. The individual meets one or more of the following
criteria:

\(A\) The individual has residual physical or mental effects that
frequently or constantly limit or prevent some daily activities, but the
individual is able to work or attend school, carry out most household
chores, travel, and provide age-appropriate self-care, such as eating,
dressing, grooming, and carrying out personal hygiene, and
communication, behavior, social interaction, and intellectual
functioning are appropriate for age; or

\(B\) The individual has disfigurement or scarring of the head, face, or
neck with either gross distortion or gross asymmetry of one facial
feature or one paired set of facial features (nose, chin, forehead, eyes
(including eyelids), ears (auricles), cheeks, or lips).

\(iv\) *Level III*. The individual meets one or more of the following
criteria:

\(A\) The individual has residual physical or mental effects that
frequently or constantly limit or prevent most daily activities, but the
individual is able to provide age-appropriate self-care, such as eating,
dressing, grooming, and carrying out personal hygiene;

\(B\) The individual is unable to work or attend school, travel, or
carry out household chores, or does so intermittently and with
difficulty;

\(C\) The individual's communication, behavior, social interaction, and
intellectual functioning are not entirely appropriate for age; or

\(D\) The individual has disfigurement or scarring of the head, face, or
neck with either gross distortion or gross asymmetry of two facial
features or two paired sets of facial features (nose, chin, forehead,
eyes (including eyelids), ears (auricles), cheeks, or lips).

\(v\) *Level IV*. The individual meets one or more of the following
criteria:

\(A\) The individual has residual physical or mental effects that
prevent age-appropriate self-care, such as eating, dressing, grooming,
and carrying out personal hygiene;

\(B\) The individual's communication, behavior, social interaction, and
intellectual functioning are grossly inappropriate for age; or

\(C\) The individual has disfigurement or scarring of the head, face, or
neck with either gross distortion or gross asymmetry of three facial
features or three paired sets of facial features (nose, chin, forehead,
eyes (including eyelids), ears (auricles), cheeks, or lips).

\(2\) *Assessing limitation of daily activities*. Physical or mental
effects on the following functions are to be considered in assessing
limitation of daily activities:

> \(i\) Mobility (ability to stand and walk, including balance and
> coordination);
>
> \(ii\) Manual dexterity;
>
> \(iii\) Stamina;
>
> \(iv\) Speech;
>
> \(v\) Hearing;
>
> \(vi\) Vision (other than correctable refraction errors);
>
> \(vii\) Memory;
>
> \(viii\) Ability to concentrate;
>
> \(ix\) Appropriateness of behavior; and
>
> \(x\) Urinary and fecal continence.

\(f\) *Information for determining whether individuals have covered
birth defects and rating disability levels*.

\(1\) VA may accept statements from private physicians, or examination
reports from government or private institutions, for the purposes of
determining whether an individual has a covered birth defect and for
rating claims for covered birth defects. If they are adequate for such
purposes, VA may make the determination and rating without further
examination. In the absence of adequate information, VA may schedule
examinations for the purpose of determining whether an individual has a
covered birth defect and/or assessing the level of disability.

\(2\) Except in accordance with paragraph (a)(3) of this section, VA
will not pay a monthly monetary allowance unless or until VA is able to
obtain medical evidence adequate to determine that an individual has a
covered birth defect and adequate to assess the level of disability due
to covered birth defects.

\(g\) *Redeterminations*. VA will reassess a determination under this
section whenever it receives evidence indicating that a change is
warranted.

\(h\) *Referrals*. If a regional office is unclear in any case as to
whether a condition is a covered birth defect, it may refer the issue to
the Director of the Compensation and Pension Service for determination.

\(i\) *Effective dates*. Except as provided in §3.114(a) or paragraph
(i)(1) or (2) of this section, VA will award the monetary allowance
under subchapter II of 38 U.S.C. chapter 18, for an individual with
disability resulting from one or more covered birth defects, 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 of birth
if the claim is received within one year of that date), the date
entitlement arose, or December 1, 2001, whichever is latest. Subject to
the condition that no benefits may be paid for any period prior to
December 1, 2001:

\(1\) VA will increase benefits as of the earliest date the evidence
establishes that the level of severity increased, but 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.

\(j\) *Reductions and discontinuances*. VA will generally reduce or
discontinue awards under subchapter II of 38 U.S.C. chapter 18 according
to the facts found except as provided in §§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. 501, 1811, 1812, 1813, 1814, 1815, 1816, 1821,
1822, 1823, 1824, 5101, 5110, 5111, 5112)

\[67 FR 49587, July 31, 2002\]

**Supplement *Highlights* reference**: 54(2).

*Next Section is §3.850*