**§3.814 Monetary allowance under 38 U.S.C. chapter 18 for an individual
suffering from spina bifida whose biological father or mother is or**

**was a Vietnam veteran.**

\(a\) *Monthly monetary allowance*. VA will pay a monthly monetary
allowance under subchapter I of 38 U.S.C. chapter 18, based upon the
level of disability determined under the provisions of paragraph (d) of
this section, to or for a person who VA has determined is an individual
suffering from spina bifida whose biological mother or father is or was
a Vietnam veteran. Receipt of this allowance will not affect the right
of the individual or any related person 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.

\(b\) \[Removed and reserved\]

\(c\) *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
January 9, 1962, 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 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 §3.204(a)(1), VA will require the types of evidence
specified in §§3.209 and 3.210 sufficient to establish in the judgment
of the Secretary that a person is the biological son or daughter 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.

\(d\) *Disability evaluations*.

\(1\) 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 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.

\(e\) *Effective dates*. Except as otherwise provided, VA will award the
monetary allowance for an individual 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 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
§§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, 1805, 1811, 1812, 1821, 1822, 1823, 1824,
5101, 5110, 5111, 5112)

\[62 FR 51279, Sept. 30, 1997, as amended at 65 FR 35282, June 2, 2000;
66 FR 13436, Mar. 6, 2001; 67 FR 49587, July 31, 2002\]

**Supplement *Highlights* references**: 31(1), 42(1), 44(1), 54(2).