51274 Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 / Rules and Regulations

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 3

RIN 2900–AI70

Monetary Allowance Under 38 U.S.C.

1805 for a Child Suffering From Spina

Bifida Who Is a Child of a Vietnam

Veteran

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the

Department of Veterans Affairs (VA)

adjudication regulations to provide for

payment of a monetary allowance to a

child suffering from spina bifida who is

a child of a Vietnam veteran. The

intended effect of this amendment is to

implement legislation authorizing VA to

provide such benefits.

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) 273–7230.

SUPPLEMENTARY INFORMATION: Section 3

of the Agent Orange Act of 1991, Pub.

L. 102–4, 105 Stat. 11, directed the

Secretary of Veterans Affairs to seek to

enter into an agreement with the

National Academy of Sciences (NAS) for

a series of reports to review and

summarize the scientific evidence

concerning the association between

exposure to herbicides used in support

of military operations in the Republic of

Vietnam during the Vietnam era, and

each disease suspected to be associated

with such exposure. In its most recent

report, entitled ‘‘Veterans and Agent

Orange: Update 1996,’’ which was

released on March 14, 1996, NAS noted

what it considered ‘‘limited/suggestive

evidence of an association’’ between

herbicide exposure and spina bifida in

the offspring of Vietnam veterans.

Since VA did not have the statutory

authority to provide benefits to children

of veterans based on birth defects, the

Secretary announced on May 28, 1996,

that he would seek legislation to

provide an appropriate remedy. VA

submitted proposed legislation to

Congress in July of that year. Section

421 of Pub. L. 104–204 added a new

chapter 18 to title 38, United States

Code, authorizing VA to provide certain

benefits, including a monthly monetary

allowance, to children suffering from

spina bifida who are the natural

children of veterans who served in the

Republic of Vietnam during the Vietnam

era. VA published a proposal to

implement section 421 of Pub. L. 104–

204 in the Federal Register of May 1,

1997 (62 FR 23724–23731). Interested

persons were invited to submit written

comments on or before June 30, 1997.

We received a total of thirty-two

comments from: the Vietnam Veterans

of America, Inc.; the Vietnam Veterans

of America (Illinois State Council

Service Program); a combined comment

from the National Veterans Legal

Services Program (NVLSP), the Spina

Bifida Association of America, and the

National Alliance of Veteran Family

Service Organizations; the Veterans of

Foreign Wars of the United States

(VFW); The American Legion; the

Paralyzed Veterans of America (PVA);

Senator Tom Daschle; Senator John D.

Rockefeller IV; and twenty-four other

concerned individuals.

A number of commenters specifically

recommended changes to the statutory

language of title 38, United States Code,

chapter 18. Others recommended that in

the regulation we change the amount of

the monetary allowance associated with

the three levels of disability; add

additional payment levels for the

monetary allowance; pay the monetary

allowance retroactive to dates prior to

October 1, 1997; provide automobile

adaptive equipment or an automobile

allowance and specially adapted

housing to children with spina bifida;

pay the benefit to children with spina

bifida occulta; pay the benefit to

grandchildren of Vietnam veterans; and

pay the benefit to the children of certain

individuals who do not meet the

statutory definition of the term

‘‘veteran.’’ No changes are made based

on these comments. VA has no legal

authority to make any of these changes.

One commenter suggested that in the

regulation VA use the term ‘‘biological

child’’ of a Vietnam veteran rather than

‘‘natural child.’’

Section 1801(1) of title 38, United

States Code, defines the term ‘‘child’’ for

purposes of this benefit as meaning,

among other things, a ‘‘natural child’’ of

a Vietnam veteran. The term ‘‘natural’’

as used in the statute means relating

naturally rather than by adoption

(Webster’s New World Dictionary, Third

College Ed., 1988, 903), so in our

judgment the terms ‘‘natural child’’ and

‘‘biological child’’ are synonymous.

Using a term in the regulation that is

inconsistent with the statutory language

might imply a difference that we do not

intend. Therefore, we make no change

based on this suggestion.

One commenter stated that a child

with spina bifida who is the legally

adopted child of a Vietnam veteran

should be eligible for this benefit.

The statute clearly defines the term

‘‘child’’ as used in determining

eligibility for spina bifida benefits as

meaning the natural child of a Vietnam

veteran (see 38 U.S.C. 1801 (1)). Since

VA has no authority to expand that

statutory definition, we make no change

based on this comment.

We proposed to terminate the

monetary allowance effective the last

day of the month before the month in

which the beneficiary dies. A

commenter suggested that we terminate

not only this benefit, but benefits to

veterans and survivors as well, effective

the first day of the month following the

month of death.

Because 38 U.S.C. 5112(b)(1) requires

VA to discontinue compensation,

dependency and indemnity

compensation, or pension payments on

the last day of the month before the

death of the beneficiary, we have no

discretion with respect to these benefits.

Although Pub. L. 104–204 is silent on

the issue of effective dates for

discontinuing the monetary allowance,

there is no indication in chapter 18 of

title 38, United States Code, or its

legislative history that Congress

intended VA to administer the monetary

allowance for children with spina bifida

any differently than compensation,

dependency and indemnity

compensation, or pension in this

respect, and we make no change based

on this suggestion.

We proposed to define the term

‘‘Vietnam veteran,’’ for purposes of this

benefit, to include an individual with

service in the waters offshore and

service in other locations ‘‘if the

conditions of service involved duty or

visitation in the Republic of Vietnam.’’

One commenter recommended that we

eliminate the phrase ‘‘if the conditions

of service involved duty or visitation in

the Republic of Vietnam.’’

VA defines the term service in the

Republic of Vietnam, for the purposes of

presuming herbicide exposure, to

include service in the waters offshore

and service in other locations ‘‘if the

conditions of service involved duty or

visitation in the Republic of Vietnam’’

(see 38 CFR 3.307(a)(6)(iii)). Because

herbicides were not applied in waters

off the shore of Vietnam, limiting the

scope of the term service in the Republic

of Vietnam to persons whose service

involved duty or visitation in the

Republic of Vietnam limits the focus of

the presumption of exposure to persons

who may have been in areas where

herbicides could have been

encountered. Since the purpose of this

rulemaking is to provide a monetary

allowance to the children of those same

veterans that VA presumes to be
Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 / Rules and Regulations 51275

herbicide-exposed if the children are

born with spina bifida, it would be

inappropriate to revise the presumption

of exposure for the purposes of this

benefit. We make no change based on

this comment.

VA proposed to amend 38 CFR 3.263

and 3.275 to implement the provisions

of 38 U.S.C. 1805(c) that specify that the

monetary allowance not be considered

income or resources in determining

eligibility for benefits under any Federal

program. One commenter stated that not

only should the monetary allowance be

excluded from VA net worth

calculations but that assets purchased

with the monetary allowance should

also be excluded from those

calculations.

Both §§ 3.263 and 3.275 define ‘‘net

worth’’ to mean the market value, less

mortgages or other encumbrances, of all

real and personal properties owned by

the claimant, except the claimant’s

dwelling (single family unit), including

a reasonable lot area, and personal

effects suitable and consistent with the

claimant’s reasonable mode of life. In

our judgment, that definition allows

reasonable exclusions from net worth

for purposes of VA’s income-based

benefit programs, and we make no

change based on this comment.

Several commenters suggested that

VA provide an outreach plan as part of

the final regulation. Although we intend

informally to advise potentially eligible

claimants that benefits are available and

to solicit claims, we see no reason to

include a statement regarding this

matter in the regulations, since those

who read the regulations necessarily

would know about the program.

Several commenters stated that spina

bifida claimants should have the same

due process and appellate rights as

other VA claimants.

38 CFR 3.103, Procedural due process

and appellate rights, clearly states that

its provisions apply to all claims for

benefits and relief within the purview of

VA’s adjudication regulations (38 CFR

part 3). Since the regulatory framework

for the monetary allowance to children

with spina bifida (38 CFR 3.814) is

codified within 38 CFR part 3, the due

process and appellate rights provided by

§ 3.103 apply to spina bifida claimants.

One commenter requested that the

comment period for this rulemaking

proceeding be extended until the end of

the comment period for the proposed

rule regarding vocational training and

rehabilitation for Vietnam veterans’

children who suffer from spina bifida.

Such an extension is unwarranted. An

understanding of the issues in the

rulemaking proceeding regarding

vocational training and rehabilitation is

not necessary to make informed

comments regarding this rulemaking

proceeding.

Another commenter recommended

that VA use its Schedule for Rating

Disabilities (title 38, Code of Federal

Regulations, part 4) to evaluate the

severity of disabilities for the purpose of

furnishing the monetary allowance for

spina bifida.

38 U.S.C. 1155, 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 resulting from similar

disabilities in civil occupations, and be

at one of ten grades in 10 percent

increments. 38 U.S.C. 1805(b)

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 suffered by

the child, as determined in accordance

with a schedule for rating such

disabilities to be prescribed by the

Secretary. 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, Congress

established requirements for evaluating

spina bifida so different from the

requirements for evaluating disabilities

for compensation and pension purposes

that they are incompatible with the

Schedule for Rating Disabilities. By

codifying the requirement to establish

rating criteria for spina bifida other than

under the authority of 38 U.S.C. 1155,

Congress further indicated its

expectation that children with spina

bifida would be evaluated under

different criteria. For these reasons, we

make no change based on this comment.

Section 1805 of title 38, United States

Code, provides a monetary allowance at

one of three levels to eligible

individuals based on the degree of

disability to be determined according to

a rating schedule prescribed by the

Secretary. We proposed to base the three

levels of disability on neurological

deficit, as manifested by impairment of

functioning of: the extremities; bowel or

bladder; and intellect; and to evaluate

each of those at one of three levels of

severity. Several commenters objected

that those criteria are too narrow

because they fail to include all

disabilities ‘‘related to, or secondary to,

spina bifida,’’ such as hydrocephalus,

Arnold-Chiari malformation, sexual/

reproductive dysfunction, latex allergy,

seizure disorders, etc.

While spina bifida is commonly

associated with other developmental

defects and congenital abnormalities, 38

U.S.C. 1805 authorizes VA to pay the

monetary allowance for any ‘‘disability

resulting from’’ spina bifida.

Neurological deficit is the main

determinant of disability for individuals

with spina bifida (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).

Conditions that are commonly

associated with spina bifida, such as

Arnold-Chiari malformation,

hydrocephalus, etc., generally affect one

or more of the same functions we

proposed to use for rating spina bifida.

The evaluation criteria do not require

the raters to rate impairment of those

functions only to the extent that it is

due to spina bifida, but allow them to

take into account the effect on those

functions of associated conditions. In

our judgment, the rating criteria that we

proposed constitute a reasonable

method for differentiating between three

levels of disability, as Congress

required, and we make no change based

on these comments.

Several commenters felt that the

payment criteria do not take into

account the synergistic effect of

disabilities and recommended that an

individual with more than one Level II

disability be rated at Level III.

Congress mandated rating criteria

supporting three levels of payment. If

we are to administer this monetary

allowance equitably, and in the manner

we believe Congress intended, in

assigning an intermediate (Level II)

payment based on combined aspects of

neurological impairment, we must

consider not only that some

beneficiaries with spina bifida may be

less severely disabled than a particular

individual, but that some may be more

severely disabled. Someone with even

four Level II disabilities, for example,

would not be as severely disabled as

someone with any of the Level III

disabilities, because the criteria used to

assess each disability represent

incremental degrees of severity from

least (Level I) through most severe

(Level III). Since Congress established

three levels of payment, it would not be

equitable, in our judgment, to pay

someone with Level II impairment of

each neurological function considered

in the criteria the same amount as

someone with Level III impairment of

each neurological function considered.

The criteria as proposed represent a

reasonable and equitable method for

distinguishing three levels of disability,

and we make no change based on this

comment.

We proposed to measure impairment

of intellectual functioning using
51276 Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 / Rules and Regulations

intelligence quotient (I.Q.). A number of

commenters stated that I.Q. is not the

best representation of intellectual

functioning as it relates to level of

disability. Some recommended that we

use ‘‘performance I.Q.’’ or ‘‘assessed

intellectual functioning’’ instead.

According to a recent British study, it

is, in fact, I.Q. that is one of the two

main determinants of disability and

dependency in individuals with spina

bifida, neurological deficit being the

other (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).

Furthermore, it is important to keep the

criteria as simple and objective as

possible to ensure consistent ratings and

timely resolution of claims. Although

I.Q. can be measured by any of several

standardized tests that are in general

use, we are not aware of any comparable

standard objective measures for the

other aspects of intellectual functioning

that the commenters suggested we use.

For these reasons, we make no change

based on these comments.

One commenter felt that the payment

criteria should take into account

emotional suffering due to past surgical

procedures.

38 U.S.C. 1805 authorizes a monetary

allowance for disability resulting from

spina bifida. In normal usage, the term

‘‘disability’’ implies a lack of the ability

to function normally, physically or

mentally (Dorland’s Illustrated Medical

Dictionary, 27th ed. 1988, 480). In our

judgment, mental suffering due to prior

surgeries is not a disability as that term

is used in the statute, and we make no

change based on this comment.

We proposed to evaluate impairment

of bowel and bladder function from

least (Level I) to most (Level III) severely

impaired based on whether an

individual is continent of urine and

feces, requires drugs or mechanical

means to maintain proper bladder or

bowel function, or is completely

incontinent of urine or feces. A number

of commenters stated that these criteria

penalize individuals for receiving

appropriate treatment and are a

financial disincentive to seeking

treatment.

The issue is not whether impairment

of bowel or bladder function is severely

disabling—we can concede that it is—

but the degree of severity. An individual

who is continent at least part of the

time, by whatever means, is clearly less

disabled than one who is unable to

attain any degree of continence by any

means. Even in cases where an

individual has attained continence of

either bowel or bladder function

through drugs or mechanical means,

other factors would influence the

payment level. For example, some

individuals may be able to attain

continence for either bowel or bladder

function but not both. In such a case,

the payment level would remain at

Level III. Furthermore, individuals with

impairment of bowel or bladder

function will, in many cases, have other

impairments that affect the payment

level, so that a change from

incontinence to continence might not

warrant any change in the payment

level. In our judgment, the fact that a

beneficiary might, in rare cases, receive

a higher monthly payment if he or she

does not follow procedures designed to

alleviate, or at least manage,

incontinence will not outweigh for most

individuals with spina bifida the

incentives, from both health and social

perspectives, to follow such a program.

We therefore make no change based on

this comment.

Two commenters pointed out that

because the degree of continence may

change, the payment level may need to

change. One recommended that we not

reduce the payment from Level II (based

on the fact that an individual requires

drugs to maintain urinary continence) to

Level I, until one year after he or she

becomes continent without drugs, in

order to ascertain whether continence

can be maintained without medication.

The payment level is based on a

combination of specified functional

impairments. For that reason, a change

in the severity of one type of

impairment would not necessarily affect

the payment level. A reduction from

Level II to Level I based on the fact that

an individual has achieved urinary

continence, for example, would occur

only if all other specified impairments

(bowel, ambulation, I.Q., upper

extremities) were also at Level I. Under

the provisions of 38 CFR 3.814, VA will

reevaluate the disability level whenever

there is an indication of material change

in an individual’s condition; these

evaluations will generally be based on

medical reports from the beneficiary’s

primary care physician or the medical

institution where he or she receives

treatment. Should the health-care

provider indicate that the long-term

effect of withdrawing treatment cannot

yet be determined, the rating activity

could defer the reevaluation if it had

any potential effect on the payment

level. The length of any deferment

should be based on medical evidence

rather than a fixed period set by

regulation, however, and we make no

change based on this comment.

Because all children less than one

year of age, whether or not they are

suffering from spina bifida, are

essentially helpless, incontinent, unable

to walk, and too young for I.Q. to be

measured, we proposed to pay children

under the age of one at Level I. Several

commenters objected to this provision.

One commenter stated that this

provision is unfair because it is at odds

with the likely disability once the child

is old enough to be properly examined,

and arbitrary because it treats infants

with spina bifida differently than older

individuals with spina bifida without a

rational basis.

The rating criteria for spina bifida are

based on impairment of specified

neurological functions. These functions

have not yet developed in newborns,

regardless of their spina bifida status.

We do not dispute the fact that an infant

with spina bifida has disabilities due to

the condition. However, since it would

be purely speculative to assess the

severity of impairment of neurological

functions until such time as those

functions would have developed, in our

judgment, there is a rational basis for

setting the level of the monthly

allowance at the lowest rate established

by statute. As for the comment that

Level I may not reflect the eventual

severity of the child’s disability, we

believe that the monetary allowance is

meant to reflect the current, rather than

potential, level of severity, and that the

requirement to reevaluate at age one is

sufficient to ensure the child will be

paid according to the actual impairment

of neurological function once it is

possible to objectively assess that

impairment.

Three commenters felt that a child

under the age of one should be paid at

Level III. One commenter gave as a

reason that this is the period of most

intensive medical and surgical

treatment. Another said a child with

hydrocephalus could have multiple

shunt malfunctions.

The issue is impairment of specific

functions that are not yet developed in

any infant. A child eligible for the

monetary allowance is also entitled to

health care from VA, including medical

care, supplies, transportation, etc. Such

a child will not be deprived of needed

medical care because of the amount of

monetary allowance. Furthermore, a

child under the age of one may be

evaluated at Level III if a pediatric

neurologist or pediatric neurosurgeon

certifies that there is a neurologic deficit

present that will prevent the individual

from ambulating, that will preclude selfcare and feeding self because of sensory

or motor impairment of the upper

extremities, or that will make it

impossible for the individual to achieve

urinary or fecal continence. For these
Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 / Rules and Regulations 51277

reasons, we make no change based on

this comment.

One commenter said this inequity of

presuming a Level I could continue for

years if the parents or VA fail to arrange

a reevaluation.

No changes are made based on this

comment. These regulations require VA

to reevaluate a child when it reaches

one year of age and thereafter at

intervals of not more than five years.

That is adequate protection against the

inequity the commenter foresees.

Anything beyond that would be a duty

beyond the scope of VA’s responsibility.

Furthermore, a child, parent, or

guardian may submit evidence that the

disability has worsened at any time after

the child is one year of age, and VA will

determine whether that evidence

warrants a change in the amount of

monetary allowance.

Several commenters felt that the

provision requiring certification by a

pediatric neurologist for an infant to be

paid at Level III is too stringent. Some

commenters suggested that in addition

to pediatric neurologists the

certification also should be allowed to

be made by pediatric neurosurgeons. We

agree that such determinations could

also be made by pediatric

neurosurgeons. However, due to the

difficulty of making an objective

prognosis for infants with this complex

disability, we believe that only pediatric

neurologists and pediatric

neurosurgeons have sufficient expertise

to ensure that the option of rating the

infant at Level III is equitably and

consistently applied. Accordingly, the

final rule limits such certifications to

pediatric neurologists and pediatric

neurosurgeons.

Some commenters said that infants

with spina bifida, particularly those in

rural areas, might not have access to a

pediatric neurologist and recommended

that VA accept certifications from other

health-care practitioners.

Hospitals even in rural areas offer

referral services for treatment or

evaluation of severely disabled children.

Under the provisions of 38 U.S.C. 1803,

VA will provide an eligible child with

spina bifida any health care, including

transportation expenses, that it

determines is necessary. If VA

determines that evaluation by a

pediatric neurologist or a pediatric

neurosurgeon qualifies as a reasonable

need, the services of a pediatric

neurologist or a pediatric neurosurgeon

will be available to any eligible disabled

child who needs them, and we make no

change based on this comment.

We proposed to rate impairment of

neurological function of the lower

extremities at Level I if the individual

is able to walk without braces or other

external support; at Level II if he or she

is ambulatory, but only with braces or

other external support; and at Level III

if he or she is unable to ambulate. One

commenter said that the need to wear

braces should warrant a Level III

determination, and another said that

some who can walk without braces still

have very severe disability.

This comment raises the same issue,

i.e., the degree of severity, discussed

above in conjunction with the

synergistic effects of disabilities. In

order to administer this monetary

allowance equitably, it is important that

we consider not only that some

beneficiaries may be less severely

disabled than an individual rated at

Level II, but also that some may be more

severely disabled. While spina bifida is

undoubtedly a very disabling condition,

the statute requires us to establish rating

criteria that distinguish three levels of

disability. A person able to ambulate

with braces or other external support is

unquestionably less severely disabled

than an individual who is unable to

ambulate. We believe, therefore, the

proposed criteria establish a clear and

reasonable separation between the

intermediate and most severe levels of

impairment of neurological functioning

of the lower extremities, and we make

no change based on this comment.

We proposed to reevaluate

individuals with spina bifida at the age

of one year and then at intervals of no

more than five years until the individual

reaches the age of 21. One commenter

proposed that VA waive further

reevaluation if the child’s primary

caregiver states that it is unlikely that

the overall level of disability will

improve.

Periodic reevaluations are necessary

because, until maturity, the level of

neurological functioning may fluctuate.

Virtually all children can be taught to

ambulate with sufficient bracing and

external support, for example, but those

with lesions at L2 or higher will usually

revert to wheelchairs in the teenage

period (Diseases of the Nervous System,

Arthur K. Asbury, M.D., Guy M.

McKhann, M.D., and W. Ian McDonald,

Ph. D., 1986, 712). The purpose of the

reevaluations is to ensure that the

beneficiary is being paid at the level

commensurate with the severity of the

disability. Although reevaluation will

generally be based on private medical

evidence, it is the VA adjudicator, rather

than the caregiver, who is responsible

for determining how that medical

evidence compares to the requirements

set forth in VA regulations. We therefore

make no change based on this comment.

One commenter noted that the

application form asked for parents’

Social Security numbers. The

commenter asserted that the form

should clearly state that this is optional

information. No change to the form is

made based on this comment. The form

clearly and prominently states in the

material under the heading ‘‘Privacy Act

Information’’ that disclosure of Social

Security numbers is voluntary.

One commenter also noted that the

application form asked for the parents’

VA claim numbers and asserted that

such information is irrelevant and

should be eliminated from the form. No

change to the form is made based on

this comment. Not all parents will have

VA claim numbers. However, for those

who do, the corresponding claims file

should provide relevant information

that would eliminate the need for other

searching. For example, the file should

establish whether the parent had service

in the Republic of Vietnam during the

Vietnam era.

For the sake of clarity, we have made

some non-substantive editorial changes

to the proposed language.

VA appreciates the comments

submitted in response to the proposed

rule. Based on the rationale set forth in

the proposed rule and this document,

the provisions of the proposed rule are

adopted with the changes noted above.

Executive Order 12866

This final rule has been reviewed by

OMB under Executive Order 12866.

Administrative Procedure Act

There is good cause for making this

final rule effective without regard to a

30 day delay. This final rule does not

adversely affect anyone, and the affected

children need the benefits from the rule

as soon as possible.

Paperwork Reduction Act

Information collection requirements

associated with this final rule

concerning the Application for Spina

Bifida Benefits (38 CFR 3.814) have

been approved by the Office of

Management and Budget (OMB) under

the provisions of the Paperwork

Reduction Act (44 U.S.C. 3504(h)) and

have been assigned OMB Control

Number 2900–0572.

This collection of information

included in 38 CFR 3.814 concerns an

application for eligibility for the

monetary allowance based on spina

bifida that must be submitted on VA

Form 21–0304, which has been

approved.

OMB assigns a control number for

each collection of information it

approves. VA may not conduct or
51278 Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 / Rules and Regulations

sponsor, and a person is not required to

respond to, a collection of information

unless it displays a currently valid OMB

control number. The valid OMB control

number assigned to the collection of

information in this final rule is

displayed at the end of the affected

section of the regulations.

Two collection of information

comments were received and are

discussed above.

Regulatory Flexibility Act

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

(RFA), 5 U.S.C. 601–612. This final rule

would not directly affect any small

entities. Only VA beneficiaries could be

directly affected. Therefore, pursuant to

5 U.S.C. 605(b), this final rule is exempt

from the initial and final regulatory

flexibility analysis requirements of

§§ 603 and 604.

There is no Catalog of Federal

Domestic Assistance program number

for this benefit.

List of Subjects in 38 CFR Part 3

Administrative practice and

procedure, Claims, Disability benefits,

Health care, Pensions, Reporting and

recordkeeping requirements, Veterans,

Vietnam.

Approved: September 11, 1997.

Hershel W. Gober,

Acting Secretary of Veterans Affairs.

For the reasons set forth in the

preamble, 38 CFR part 3 is 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 § 3.27, paragraph (c) is

redesignated as paragraph (d), a new

paragraph (c) is added, and newly

redesignated paragraph (d) and its

authority citation are revised to read as

follows:

§ 3.27 Automatic adjustment of benefit

rates.

* * * * *

(c) Monetary allowance under 38

U.S.C. 1805 for a child suffering from

spina bifida who is a child of a Vietnam

veteran. Whenever there is a cost-ofliving increase in benefit amounts

payable under section 215(i) of Title II

of the Social Security Act, VA shall,

effective on the dates such increases

become effective, increase by the same

percentage the monthly allowance

under 38 U.S.C. 1805 for a child

suffering from spina bifida who is a

child of a Vietnam veteran.

(Authority: 38 U.S.C. 1805(b)(3))

(d) Publishing requirements. Increases

in pension rates, parents’ dependency

and indemnity compensation rates and

income limitation, and the monthly

allowance under 38 U.S.C. 1805 for a

child suffering from spina bifida made

under this section shall be published in

the Federal Register.

(Authority: 38 U.S.C. 5312(c)(1), 1805(b)(3))

3. In § 3.105, paragraphs (g) and (h)

are redesignated as paragraphs (h) and

(i), respectively; in paragraphs (d), (e),

(f) and newly redesignated paragraph (h)

remove ‘‘paragraph (h)’’ each time it

appears and add, in its place,

‘‘paragraph (i)’’; in newly redesignated

paragraph (i)(1) remove ‘‘paragraphs (d)

through (g)’’ and add, in its place,

‘‘paragraphs (d) through (h)’’; in newly

redesignated paragraph (i)(2)

introductory text remove ‘‘paragraph

(d), (e), (f) or (g)’’ and add, in its place,

‘‘paragraph (d), (e), (f), (g) or (h)’’; in

newly redesignated paragraph (i)(2)(ii)

remove ‘‘paragraph (f)’’ and add, in its

place, ‘‘paragraphs (f) and (g)’’; in newly

redesignated paragraph (i)(2)(iii) remove

‘‘paragraph (g)’’ and add, in its place,

‘‘paragraph (h)’’; and add a new

paragraph (g) to read as follows:

§ 3.105 Revision of decisions.

* * * * *

(g) Reduction in evaluation—

monetary allowance to a child suffering

from spina bifida under 38 U.S.C. 1805.

Where a change in disability level

warrants a reduction of the monthly

allowance currently being paid, VA will

notify the beneficiary at his or her latest

address of record of the proposed

reduction, furnish detailed reasons

therefor, and allow the beneficiary 60

days to present additional evidence to

show that the monthly allowance

should be continued at the present

level. Unless otherwise provided in

paragraph (i) of this section, if VA does

not receive additional evidence within

that period, it will take final rating

action and reduce the award effective

the last day of the month following sixty

days from the date of notice to the payee

of the proposed reduction.

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

* * * * *

§ 3.158 [Amended]

4. In § 3.158, paragraphs (a) and (c)

are amended by removing ‘‘or

dependency and indemnity

compensation’’ and adding, in its place,

‘‘dependency and indemnity

compensation, or monetary allowance

under the provisions of 38 U.S.C. 1805’’.

5. In § 3.261, paragraph (a)(40) is

added to read as follows:

§ 3.261 Character of income; exclusions

and estates.

* * * * *

(a) * * *

Income Dependency

(parents)

Dependency and

indemnity compensation (parents)

Pension; old-law

(veterans, surviving spouses and

children)

Pension; section

306 (veterans,

surviving spouses

and children)

See—

* * * * * * *

(40) Monetary allowance under 38 U.S.C. 1805

for children suffering from spina bifida who

are children of Vietnam Veterans (38 U.S.C.

1805(d)).

Excluded .............. Excluded .............. Excluded .............. Excluded .............. § 3.262(y).

* * * * *

6. In § 3.262, paragraph (y) is added

immediately preceding the final

authority citation at the end of the

section to read as follows:

§ 3.262 Evaluation of income.

* * * * *

(y) Monetary allowance under 38

U.S.C. 1805 for a child suffering from

spina bifida who is a child of a Vietnam

veteran. There shall be excluded from

income computation any allowance

paid under the provisions of 38 U.S.C.

1805 to a child suffering from spina
Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 / Rules and Regulations 51279

bifida who is the child of a Vietnam

veteran.

(Authority: 38 U.S.C. 1805(d))

* * * * *

7. In § 3.263, paragraph (g) is added to

read as follows:

§ 3.263 Corpus of estate; net worth.

* * * * *

(g) Monetary allowance under 38

U.S.C. 1805 for a child suffering from

spina bifida who is a child of a Vietnam

veteran. There shall be excluded from

the corpus of estate or net worth of a

claimant any allowance paid under the

provisions of 38 U.S.C. 1805 to a child

suffering from spina bifida who is the

child of a Vietnam veteran.

(Authority: 38 U.S.C. 1805(d))

8. In § 3.272, paragraph (u) is added

to read as follows:

§ 3.272 Exclusions from income.

* * * * *

(u) Monetary allowance under 38

U.S.C. 1805 for a child suffering from

spina bifida who is a child of a Vietnam

veteran. Any allowance paid under the

provisions of 38 U.S.C. 1805 to a child

suffering from spina bifida who is the

child of a Vietnam veteran.

(Authority: 38 U.S.C. 1805(d))

9. In § 3.275, paragraph (i) is added to

read as follows:

§ 3.275 Criteria for evaluating net worth.

* * * * *

(i) Monetary allowance under 38

U.S.C. 1805 for a child suffering from

spina bifida who is a child of a Vietnam

veteran. There shall be excluded from

the corpus of estate or net worth of a

claimant any allowance paid under the

provisions of 38 U.S.C. 1805 to a child

suffering from spina bifida who is the

child of a Vietnam veteran.

(Authority: 38 U.S.C. 1805(d))

10. In § 3.403, the introductory text

and paragraphs (a) through (e) are

redesignated as paragraph (a)

introductory text and paragraphs (a)(1)

through (a)(5), respectively, and

paragraph (b) is added to read as

follows:

§ 3.403 Children.

* * * * *

(b) Monetary allowance under 38

U.S.C. 1805 for a child suffering from

spina bifida who is a child of a Vietnam

veteran (§ 3.814). An award of the

monetary allowance under 38 U.S.C.

1805 to a child suffering from spina

bifida who is the child of a Vietnam

veteran will be either date of birth if

claim is received within one year of that

date, or, date of claim, but not earlier

than October 1, 1997.

(Authority: 38 U.S.C. 1806, 5110(n); sec.

422(c), Pub. L. 104–204, 110 Stat. 2926)

11. In § 3.503, the introductory text

and paragraphs (a) through (j) are

redesignated as paragraph (a)

introductory text and paragraphs (a)(1)

through (a)(10), respectively, and

paragraph (b) is added to read as

follows:

§ 3.503 Children.

* * * * *

(b) Monetary allowance under 38

U.S.C. 1805 for a child suffering from

spina bifida who is a child of a Vietnam

veteran (§ 3.814). The effective date of

discontinuance of the monthly

allowance under 38 U.S.C. 1805 to a

child suffering from spina bifida who is

the child of a Vietnam veteran will be

the last day of the month before the

month in which the death of the child

occurred.

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

12. Section 3.814 is added under the

undesignated centerheading ‘‘Special

Benefits’’ to read as follows:

§ 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.

(a) VA shall pay a monthly allowance

based upon the level of disability

determined under the provisions of

paragraph (d) of this section to or for a

child who it has determined is suffering

from spina bifida and who is a child of

a Vietnam veteran. Receipt of this

allowance shall not affect the right of

the child, or the right of any individual

based on the child’s relationship to that

individual, to receive any other benefit

to which the child, or that individual,

may be entitled under any law

administered by VA. If a child suffering

from spina bifida is the natural child of

two Vietnam veterans, he or she is

entitled to only one monthly allowance

under this section.

(b) Applicants for the monetary

allowance under this section must

submit an application to the VA

regional office and include the

information mandated on the following

VA form entitled ‘‘Application for Spina

Bifida Benefits’’:

BILLING CODE 8320–01–P
51280 Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 / Rules and Regulations

BILLING CODE 8320–01–C
Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 / Rules and Regulations 51281

(c) Definitions.—(1) Vietnam veteran.

For the purposes of this section, the

term ‘‘Vietnam veteran’’ means a

veteran who performed active military,

naval, or air service in the Republic of

Vietnam during the Vietnam era. 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) Child. For the purposes of this

section, the term ‘‘child’’ means a

natural child of a Vietnam veteran,

regardless of age or marital status,

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 shall require the types

of evidence specified in §§ 3.209 and

3.210 sufficient to establish in the

judgment of the Secretary that a child is

the natural child 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)(1) VA shall determine the level of

disability suffered by the child in

accordance with the following criteria:

(i) Level I. The child is able to walk

without braces or other external support

(although gait may be impaired), has no

sensory or motor impairment of upper

extremities, has an IQ of 90 or higher,

and is continent of urine and feces.

(ii) Level II. Provided that none of the

child’s disabilities are severe enough to

be evaluated at Level III, and the child:

is ambulatory, but only with braces or

other external support; or, has sensory

or motor impairment of 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 drugs or intermittent

catheterization or other mechanical

means to maintain proper urinary

bladder function, or mechanisms for

proper bowel function.

(iii) Level III. The child is unable to

ambulate; or, has sensory or motor

impairment of upper extremities severe

enough to prevent grasping a pen,

feeding self, and performing self care;

or, has an IQ of 69 or less; or, has

complete urinary or fecal incontinence.

(2) Provided that they are adequate for

assessing the level of disability due to

spina bifida under the provisions of

paragraph (d)(1) of this section, 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. In the

absence of such information, VA will

schedule an examination for the

purpose of assessing the level of

disability.

(3) Unless or until VA is able to obtain

medical evidence adequate to assess the

level of disability due to spina bifida, or

to reassess the level of disability when

required to do so under the provisions

of paragraph (d)(4) or (5) of this section,

VA will rate the disability of a person

eligible for this monetary allowance at

no higher than Level I.

(4) Children under the age of one year

will be rated 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 child from

ambulating; from grasping a pen,

feeding him or herself, or performing

self care; or from achieving urinary or

fecal continence. If such a deficit is

present, the child will be rated at Level

III. In either case, VA will reassess the

level of disability when the child

reaches the age of one year.

(5) VA will reassess the level of

disability due to spina bifida whenever

it receives medical evidence indicating

that a change is warranted. For

individuals between the ages of one and

twenty-one, however, it will reassess the

level of disability at intervals of not

more than five years. Thereafter, it will

reassess the level of disability only if

evidence indicates there has been a

material change in the level of disability

or that the current rating may be

incorrect.

(Paperwork requirements were

approved by the Office of Management

and Budget under control number 2900–

0572.)

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

PART 3—[AMENDED]

13. The Cross Reference following

§ 3.57 is amended by removing

‘‘§ 3.403(a)’’ and ‘‘§ 3.503(c)’’ and

adding, in their places, ‘‘§ 3.403(a)(1)’’

and ‘‘§ 3.503(a)(3)’’, respectively.

14. Each Cross Reference following

§§ 3.659 and 3.703 is amended by

removing ‘‘§ 3.503(g)’’ and adding, in its

place, ‘‘§ 3.503(a)(7)’’.

15. The Cross Reference following

§ 3.707 is amended by removing

‘‘§ 3.503(h)’’ and adding, in its place,

‘‘§ 3.503(a)(8)’’.

16. The Cross Reference following

§ 3.807 is amended by removing

‘‘§ 3.503(h)’’ and adding, in its place,

‘‘§ 3.503(a)(8).’’.

[FR Doc. 97–25663 Filed 9–29–97; 8:45 am]

BILLING CODE 8320–01–P

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 17

RIN 2900–AI65

Provision of Health Care to Vietnam

Veterans’ Children With Spina Bifida

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document establishes

regulations regarding Vietnam veterans’

children with spina bifida. The

regulations concern the provision of

health care needed for the spina bifida

or any disability that is associated with

such condition. This action is necessary

to establish a mechanism for providing

health care to such children in

accordance with recently enacted

legislation.

DATES: Effective Date: October 1, 1997.

FOR FURTHER INFORMATION CONTACT:

Robert De Vesty, Health Systems

Specialist, Office of Public Health and

Environmental Hazards (13),

Department of Veterans Affairs, 810

Vermont Avenue, NW, Washington DC,

20420, telephone (202) 273–8575.

SUPPLEMENTARY INFORMATION: In a

document published in the Federal

Register on May 1, 1997 (62 FR 23731),

we proposed to amend the ‘‘Medical’’

regulations (38 CFR part 17) by setting

forth new §§ 17.900–17.905 regarding

the provision of health care to Vietnam

veterans’ children with spina bifida.

Spina bifida is a congenital birth defect,

characterized by defective closure of the

bones surrounding the spinal cord. The

spinal cord and its covering (the

meninges) may protrude through the

defect.

The provisions of 38 U.S.C. Chapter

18 (Pub. L. 104–204, section 421,

September 26, 1996) provide for three

separate types of benefits for Vietnam

veterans’ children who suffer from spina

bifida: (1) Monthly monetary

allowances, (2) provision of health care

needed for the spina bifida or any

disability that is associated with such

condition, and (3) provision of

vocational training and rehabilitation.

This document establishes a final rule

to set forth a mechanism regarding

provision of health care to Vietnam

veterans’ children with spina bifida.

We requested that comments to the

proposed rule be submitted on or before

June 30, 1997. We received 33

comments. Based on the rationale set

forth in the proposed rule and this

document, the proposed rule is adopted

as a final rule with changes explained

below.