200 Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Proposed Rules 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AK67 

Monetary Allowances for Certain 

Children of Vietnam Veterans; 

Identification of Covered Birth Defects

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

SUMMARY: This document proposes to 

amend the Department of Veterans 

Affairs (VA) adjudication regulations to 

provide for payment of a monetary 

allowance for an individual with 

disability from one or more covered 

birth defects who is a child of a woman 

Vietnam veteran and to provide for the 

identification of covered birth defects, 

to implement recent legislation. In 

addition, the proposed rule would 

amend the VA adjudication regulations 

affecting benefits for Vietnam veterans’ 

children with spina bifida to reflect that 

legislation, to make conforming 

changes, and to remove unnecessary or 

obsolete provisions. Companion 

documents concerning the provision of 

health care (RIN 2900–AK88) and 

vocational training benefits (RIN 2900–

AK90) for eligible children of Vietnam 

veterans are set forth in the Proposed 

Rules section of this issue of the Federal 

Register.

DATES: Comments must be received by 

VA on or before February 1, 2002.

ADDRESSES: Mail or hand-deliver 

written comments to: Director, Office of 

Regulations Management (02D), 

Department of Veterans Affairs, 810 

Vermont Ave., NW., Room 1154, 

Washington, DC 20420; or fax comments 

to (202) 273–9289; or e-mail comments 

to OGCRegulations@mail.va.gov.

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900–

AK67.’’ All comments received will be 

available for public inspection in the 

Office of Regulations Management, 

Room 1158, between the hours of 8 a.m. 

and 4:30 p.m., Monday through Friday 

(except holidays).

FOR FURTHER INFORMATION CONTACT:

Caroll McBrine, M.D., Consultant, 

Regulations Staff (211A), Compensation 

and Pension Service, Veterans Benefits 

Administration, 810 Vermont Avenue, 

NW., Washington, DC 20420, telephone 

(202) 273–7210.

SUPPLEMENTARY INFORMATION: Section 

401 of the Veterans Benefits and Health 

Care Improvement Act of 2000, Public 

Law 106–419, amends chapter 18 of title 

38, United States Code, effective 

December 1, 2001, to authorize VA to 

provide certain benefits, including a 

monthly monetary allowance, for 

children with covered birth defects who 

are the natural children of women 

veterans who served in the Republic of 

Vietnam during the Vietnam era. This 

document proposes to amend existing 

VA adjudication regulations and to add 

§ 3.815 to title 38, Code of Federal 

Regulations, to implement this new 

authority. 

Effective December 1, 2001, 38 U.S.C. 

1823 provides that 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, nor will the 

allowance be considered income or 

resources in determining eligibility for, 

or the amount of, benefits under any 

Federal or federally-assisted program. 

We propose to amend 38 CFR 3.261, 

3.262, 3.263, 3.272, and 3.275 to reflect 

this statutory provision as it applies to 

VA’s income-based benefit programs. 

We also propose to amend 38 CFR 

3.27, 3.29, 3.31, 3.105, 3.114, 3.158, 

3.216, 3.403, 3.500, and 3.503 so that 

regulations applying to adjustment of 

benefit rates, rounding of dollar figures 

of the monthly payment, 

commencement of the period of 

payment, revision of decisions, 

mandatory disclosure of social security 

numbers, abandonment of claims, and 

effective date of the award and of 

reductions and discontinuances, apply 

to these benefits. 

Further, we propose to make nonsubstantive changes to 38 CFR 3.814 

concerning the monetary allowance for 

individuals with spina bifida to reflect 

section 401 of Public Law 106–419, to 

make conforming changes, and to 

remove unnecessary or obsolete 

provisions. 

In addition, we propose to make 

changes for purposes of clarity in 

§ 3.814 and in other provisions 

mentioned above. 

Until December 1, 2001, 38 U.S.C. 

chapter 18 is titled ‘‘Benefits for 

Children of Vietnam Veterans Who Are 

Born with Spina Bifida.’’ It provides 

benefits for the children of Vietnam 

veterans on the basis of a report by the 

Institute of Medicine (IOM) of the 

National Academy of Sciences called 

‘‘Veterans and Agent Orange: Update 

1996,’’ in which the IOM noted what it 

considered ‘‘limited/suggestive 

evidence of an association’’ between 

herbicide exposure and spina bifida in 

the offspring of Vietnam veterans. 

Effective December 1, 2001, 38 U.S.C. 

chapter 18 is retitled ‘‘Benefits for 

Children of Vietnam Veterans.’’ 

Statutory provisions that have been in 

38 U.S.C. chapter 18 concerning benefits 

for individuals with spina bifida who 

are children of Vietnam veterans are 

amended effective December 1, 2001, to 

be in subchapter I of chapter 18, 

renamed ‘‘Children of Vietnam Veterans 

Born with Spina Bifida.’’ Subchapter II 

is added effective December 1, 2001, to 

chapter 18 and is titled ‘‘Children of 

Women Vietnam Veterans Born with 

Certain Birth Defects.’’ Subchapter III is 

added effective December 1, 2001, to 

chapter 18 and is titled ‘‘General 

Provisions.’’ That new subchapter 

contains provisions applicable to both 

categories of individuals. 

The new statutory provisions, 

primarily 38 U.S.C. 1815, authorize VA 

to provide a monetary allowance for an 

individual with disability resulting from 

one or more covered birth defects who 

is a child of a woman Vietnam veteran. 

The statute is based on the results of a 

comprehensive health study by VA of 

8,280 women Vietnam-era veterans (half 

of whom served in the Republic of 

Vietnam and half of whom served 

elsewhere) that was mandated by Public 

Law 99–272. The study, completed in 

October 1998, and titled ‘‘Women 

Vietnam Veterans Reproductive 

Outcomes Health Study’’ (VA study), 

was conducted by the Environmental 

Epidemiology Service of the Veterans 

Health Administration of the 

Department of Veterans Affairs. For 

purposes of satisfying the basic 

statistical requirement of independence 

of observations (i.e., in this study one 

pregnancy per woman), the VA study 

selected the first pregnancy after 

entrance date to Vietnam service, for 

women Vietnam veterans, as the ‘‘index 

pregnancy.’’ For the non-Vietnam group, 

the index pregnancy was defined as the 

first pregnancy after July 4, 1965. The 

VA study defined ‘‘likely’’ birth defects 

as congenital anomalies and included 

structural, functional, metabolic, and 

hereditary defects. It excluded 

developmental disorders, perinatal 

complications, miscellaneous pediatric 

illnesses, and conditions that were not 

classifiable. A report of part of the VA 

study, ‘‘Pregnancy Outcomes Among 

U.S. Women Vietnam Veterans’’ 

(Pregnancy Outcomes report), was 

published in the American Journal of 

Industrial Medicine (38:447–454 

(2000)). 

As provided in 38 U.S.C. 1815(c), the 

amount of the monthly monetary 

allowance payable to an individual with 

disability resulting from covered birth 

defects will be: For the lowest level of 

disability (Level I), $100; for the lower 

intermediate level of disability (Level 

Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Proposed Rules 201

II), the greater of $214 or the monthly 

amount payable under 38 U.S.C. 

1805(b)(3) for the lowest level of 

disability prescribed for an individual 

with spina bifida who is the child of a 

Vietnam veteran; for the higher 

intermediate level of disability (Level 

III), the greater of $743 or the monthly 

amount payable under 38 U.S.C. 

1805(b)(3) for the intermediate level; for 

the highest level of disability (Level IV), 

the greater of $1272 or the monthly 

amount payable under 38 U.S.C. 

1805(b)(3) for the highest level of 

disability. 

We propose to amend 38 CFR 3.27, 

‘‘Automatic adjustment of benefit rates’’ 

to reflect the amendments to 38 U.S.C. 

chapter 18. Under the provisions of 38 

U.S.C. 1805(b)(3) and 1815(d), these 

amounts are subject to adjustment under 

the provisions of 38 U.S.C. 5312, which 

provide 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.). 

We propose to amend the provisions 

of 38 CFR 3.29, ‘‘Rounding’’ to apply to 

increases in the monthly monetary 

amounts payable under 38 U.S.C. 1815. 

Whenever rates are increased under the 

provisions of 38 U.S.C. 5312, the 

Secretary may, under section 5312(c)(2), 

round those rates in such manner as the 

Secretary considers equitable and 

appropriate. The Secretary has 

determined that it is equitable and that, 

for ease of administration, it is 

appropriate to round up rate increases 

concerning the covered birth defects 

monetary benefit, as they are for the 

spina bifida monetary benefits. The 

proposed rule will amend § 3.29 

accordingly. 

We also propose to revise 38 CFR 

3.31, ‘‘Commencement of the period of 

payment’’; 38 CFR 3.114, ‘‘Change of 

law or Department of Veterans Affairs 

issue’’; and 38 CFR 3.216, ‘‘Mandatory 

disclosure of social security numbers’’ 

to reflect that these provisions also 

apply to an individual with covered 

birth defects who is the child of a 

woman Vietnam veteran. All these 

provisions reflect statutory 

requirements. 

Where a change in disability level 

warrants a reduction of the monetary 

allowance under 38 U.S.C. 1805 for 

individuals with spina bifida, the 

provisions of 38 CFR 3.105(g) direct VA 

to notify the beneficiary of the proposed 

reduction, allow the beneficiary 60 days 

to present evidence showing that the 

reduction should not occur, and provide 

that in the absence of such additional 

evidence the reduction will be effective 

the last day of the month following 60 

days from the date of the notice. The 

proposed rule would expand the 

procedures to make them applicable to 

proposed reduction or discontinuance 

of any monetary allowance under 38 

U.S.C. chapter 18. This reflects statutory 

requirements. 

The provisions of 38 CFR 3.158 

concern the circumstances under which 

VA will consider a claim abandoned. In 

view of the similarity between this 

benefit and other monetary benefits 

which VA administers, and in order to 

maintain consistency with respect to the 

administration of these benefits, we 

propose to apply these provisions to the 

monetary monthly allowance for 

individuals with covered birth defects, 

and we are proposing to amend 38 CFR 

3.158 accordingly. 

We propose to amend 38 CFR 3.403 

by adding a new paragraph (c) to state 

that an award of the monetary 

allowance under 38 U.S.C. 1815 to or for 

an individual with covered birth defects 

who is a child of a woman Vietnam 

veteran will be the later of date of claim 

(or date of birth if a claim is received 

within one year of that date), the date 

entitlement arose, or December 1, 2001. 

This reflects statutory requirements. 

VA is also proposing to amend 38 

CFR 3.503 to specify that any monetary 

allowance under 38 U.S.C. chapter 18 

will terminate the last day of the month 

before the month in which the death of 

a beneficiary occurs. This reflects 

statutory requirements. 

VA is proposing to remove § 3.814(b), 

which sets forth an obsolete version of 

the ‘‘Application for Spina Bifida 

Benefits’’ form. The Office of 

Management and Budget has approved 

a revised version of the form. 

We propose to add a new 38 CFR 

3.815 to implement the provisions of 38 

U.S.C. 1811, 1812, 1815, and 1821, as 

well as other provisions of 38 U.S.C. 

chapter 18, subchapters II and III. While 

§ 3.815 primarily contains provisions 

concerning payment of monetary 

benefits, some of the proposed 

provisions of § 3.815 (for example, 

concerning whether an individual has a 

‘‘covered birth defect’’) also would be 

used to determine eligibility for health 

care under 38 U.S.C. 1813 and 

vocational training under 38 U.S.C. 

1814. Companion documents 

concerning the provision of health care 

(RIN 2900–AK88) and vocational 

training (RIN 2900–AK90) for certain 

children of Vietnam veterans with 

covered birth defects or spina bifida are 

set forth in the Proposed Rules section 

of this issue of the Federal Register. 

In accordance with the statutory 

framework, paragraph (a)(1) of proposed 

§ 3.815 provides that VA will pay a 

monthly 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. 

Paragraph (a)(1) further provides that, 

except as provided in paragraph (a)(3) of 

that section, the amount of the monetary 

allowance will be based on the level of 

disability suffered by an individual as 

determined in accordance with the 

provisions of paragraph (e), which sets 

forth criteria for evaluating levels of 

disability suffered by individuals with 

covered birth defects. Paragraph (a)(2) 

provides that no monetary allowance 

will be provided under this section to 

an individual based on disability from 

a particular birth defect 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 that veteran during the 

Vietnam era and that, in determining 

the level of disability, VA will not 

consider the particular defect in 

question. This will not prevent VA from 

paying a monetary allowance under 

subchapter II of 38 U.S.C. chapter 18 for 

any other birth defect for which 

affirmative evidence of another cause 

does not exist. We believe these 

provisions accord with the statutory 

intent of 38 U.S.C. 1812. 

Paragraph (a)(3) of proposed § 3.815 

provides that, in the case of an 

individual (as defined in § 3.815(c)(2)) 

whose only covered birth defect is spina 

bifida, a monetary allowance will be 

paid under § 3.814, and not under 

§ 3.815, nor will the individual be 

evaluated for disability under § 3.815. 

Thus, the individual’s disability would 

be evaluated under § 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’’) and the 

monetary allowance would be paid 

under the terms of that 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 § 3.815 

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 application of 

this paragraph, 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 would be not less than Level II, 

III or, IV, respectively. These provisions 

202 Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Proposed Rules 

reflect statutory requirements under 38 

U.S.C. 1824(a) and our interpretation 

that Congress intended that the 

provisions of 38 U.S.C. 1824(a) are 

solely to provide for nonduplication of 

benefits between subchapters I and II, 

and are not intended in any other way 

to reduce the amount of monetary 

allowance that would be payable under 

38 U.S.C. chapter 18 for an individual 

with spina bifida. 

Paragraph (b) of proposed § 3.815 

states, in accord with the statute, that 

receipt of the monetary allowance under 

38 U.S.C. chapter 18 will not affect the 

right of the individual with covered 

birth defects, 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. 

Paragraph (c)(1) of proposed § 3.815 

contains a definition of ‘‘Vietnam 

veteran’’ for purposes of that section. 

The term ‘‘Vietnam veteran’’ is defined 

to mean 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. This reflects the statutory 

provisions in 38 U.S.C. 1821(2) and 

1821(3)(B). We also propose to provide 

for purposes of § 3.815 that ‘‘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. 

This is consistent with the definition of 

service in the Republic of Vietnam that 

appears at 38 CFR 3.307(a)(6)(iii). 

Paragraph (c)(2) of proposed § 3.815 

defines ‘‘individual’’ for purposes of 

that section to mean 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. Although 38 

U.S.C. chapter 18 uses the terms ‘‘child’’ 

and ‘‘children,’’ many of those entitled 

to this benefit are now adolescents or 

adults. This definition will make it clear 

that these regulations apply to eligible 

persons regardless of age. Paragraph 

(c)(2) also provides that to establish 

whether a person is the biological son 

or daughter of a Vietnam veteran, VA 

will require the types of evidence 

specified in 38 CFR 3.209 and 3.210. 

A birth defect is defined by the March 

of Dimes organization as an abnormality 

of structure, function, or metabolism, 

whether genetically determined or a 

result of environmental influence 

during embryonic or fetal life (http://

www.modimes.org). Similar definitions 

are used by other State, national, and 

international organizations. The VA 

study of women Vietnam veterans did 

not define the term ‘‘birth defects’’ but 

stated that it included structural, 

functional, metabolic, and hereditary 

defects. It also stated that the causes of 

most congenital anomalies are unknown 

and that a combination of genetic and 

environmental factors may contribute to 

20–25% of anomalies. 

In the VA study, ‘‘likely’’ birth 

defects, reported by women Vietnam 

veterans in their children, were divided 

by pediatricians who reviewed the 

mothers’ descriptions of the defects into 

the following seven categories: 

chromosomal abnormality; multiple 

anomalies (except chromosomal and 

heritable genetic); isolated anomaly; 

congenital neoplasms; heritable genetic 

disease; undescribed isolated heart 

abnormality; and other poorly described 

defect (non-cardiac). The VA study 

stated that there is a notable lack of 

difference between the children of 

women Vietnam veterans and the 

children of women non-Vietnam 

veterans for classes of known genetic/

heritable conditions (including 

congenital malignancies). In the 

children resulting from index 

pregnancies, there was one congenital 

malignancy in a child of a Vietnam 

veteran and one in a child of a nonVietnam veteran; there were four cases 

of heritable genetic disease in each 

group of veterans; and there were three 

chromosomal abnormalities in children 

of Vietnam veterans and four in the 

children of non-Vietnam veterans. Thus, 

the VA study provides no evidence of 

an association between service in 

Vietnam and three of the seven 

categories (chromosomal abnormalities, 

congenital malignancies, and heritable 

genetic diseases). Since under 38 U.S.C. 

1812(a)(1) VA has authority to identify 

birth defects of children of women 

Vietnam veterans as covered birth 

defects only if the birth defects ‘‘are 

associated with the service of those 

veterans in the Republic of Vietnam 

during the Vietnam era,’’ we believe it 

would not be appropriate to identify 

these three categories of birth defects as 

covered birth defects. Other conditions 

reported by the mother as birth defects 

that were something else included 

developmental disorders, such as 

autism, and miscellaneous pediatric 

conditions, such as asthma. 

In addition, the statute specifically 

excludes familial disorders, birthrelated injuries, and fetal or neonatal 

infirmities with well-established causes 

from the category of covered birth 

defects. 

Therefore, we propose in paragraph 

(c)(3) of § 3.815 to define the term 

‘‘covered birth defect’’ for purposes of 

that section to mean:

[A]ny 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 wellestablished causes.

We believe that this definition reflects 

the intent of Congress with respect to 

provision of benefits for individuals 

under 38 U.S.C. chapter 18, subchapters 

II and III. 

In paragraph (d) of proposed § 3.815, 

VA lists some, but not all, specific 

conditions that VA would identify or 

would not identify as covered birth 

defects. Paragraph (d)(1) contains a list, 

based on the VA study, of some, but not 

all, conditions that VA would consider 

to be covered birth defects, unless a 

condition is familial in a particular case. 

Each of paragraphs (d)(2) through (d)(8) 

contains a non-exclusive list of certain 

conditions that, for different reasons, 

VA would not consider to be covered 

birth defects. Because of the vast 

number of possible birth defects, and 

the fact that many are sometimes 

familial and sometimes not (when they 

arise de novo, or anew, in a particular 

individual), it is not practical to develop 

an exclusive or definitive list in 

proposed § 3.815(d). For example, 

achondroplasia and Marfan syndrome 

are sometimes familial and sometimes 

not. We propose to include 

achondroplasia in the list of covered 

birth defects because 75% of cases are 

due to gene mutation 

(www.med.jhu.edu/Greenberg.Center/

achon.htm) rather than being familial, 

but it will not be a covered birth defect 

in any case where it is determined to be 

familial. On the other hand, Marfan 

syndrome is familial in two-thirds to 

three-quarters of cases 

(www.marfan.org), so we propose to 

exclude it as a covered birth defect, 

unless there is no indication that it is 

familial in a particular family, in which 

case it would not be excluded as 

familial. 

Proposed § 3.815(d)(1) states that 

covered birth defects include, but are 

not limited to, the following (but that if 

a birth defect is determined to be 

familial in a particular family, it would 

Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Proposed Rules 203

not be a covered birth defect): 

achondroplasia, cleft lip and cleft 

palate, congenital heart disease, 

congenital talipes equinovarus 

(clubfoot), esophageal and intestinal 

atresia, Hallerman-Streiff syndrome, hip 

dysplasia, Hirschprung’s disease 

(congenital megacolon), hydrocephalus 

due to aqueductal stenosis, 

hypospadias, imperforate anus, neural 

tube defects (including spina bifida, 

encephalocele, and anencephaly), 

Poland syndrome, pyloric stenosis, 

syndactyly (fused digits), 

tracheoesophageal fistula, undescended 

testicle, and Williams syndrome. 

Familial, according to Dorland’s 

Illustrated Medical Dictionary, 27th 

edition (1988), means occurring or 

affecting more members of a family than 

would be expected by chance. The 

category of familial disorders includes 

all heritable (that is, hereditary) genetic 

conditions, but not all genetic 

conditions, because a genetic mutation 

may arise for the first time during early 

development and not be hereditary. In 

that case, the parents would not have 

the genetic disorder, and the condition 

would not be familial. 

Proposed § 3.815(d)(2) states generally 

that conditions that are familial 

disorders, including hereditary genetic 

conditions (as they are called in the VA 

study) are not covered birth defects. 

However, as proposed § 3.815(d)(2) also 

provides, if a birth defect is not familial 

in a particular family, VA would not 

consider it to be a familial disorder. 

(Thus, it would be a covered birth defect 

unless excluded under another 

provision of paragraph (d).) It states that 

familial disorders include, but are not 

limited to, the following, unless not 

familial in a particular family: albinism, 

alpha-antitrypsin deficiency, Crouzon 

syndrome, cystic fibrosis, Duchenne’s 

muscular dystrophy, galactosemia, 

hemophilia, Huntington’s disease, 

Hurler syndrome, Kartagener’s 

syndrome (Primary Ciliary Dyskinesia), 

Marfan syndrome, neurofibromatosis, 

osteogenesis imperfecta, pectus 

excavatum, phenylketonuria, sickle cell 

disease, Tay-Sachs disease, thalassemia, 

and Wilson’s disease (the VA study, The 

Merck Manual). These and other 

conditions, depending on the 

circumstances, may or may not be 

familial. For example, pectus excavatum 

is generally considered to be a familial 

birth defect but may also occur in the 

absence of a family history. Congenital 

blindness has some established causes, 

such as maternal rubella during 

pregnancy or metabolic disorders, but in 

other cases, it has no established cause 

and would be a covered birth defect. 

Similarly, congenital deafness may be 

familial or may be due to an unknown 

cause. Some types of hydrocephalus are 

due to maternal infection and some 

have no known cause. Whether the 

disease is familial or not will be 

reported in most cases in medical 

records containing a family history. 

Proposed § 3.815(d)(3) states that 

congenital malignant neoplasms 

(referred to in the VA study as 

congenital malignancies) are not 

covered birth defects. It states that these 

include, but are not limited to, the 

following: medulloblastoma, 

neuroblastoma, retinoblastoma, 

teratoma, and Wilm’s tumor (The Merck 

Manual (17th edition, 1999 http://

www.neonatology.org/ syllabus/

teratoma.html, http://

cancer.med.upenn.edu/pdq_html/1/

engl/ 100048.html, and http://

cancernet.nci.nih.gov/clinpdq/pif.html). 

Proposed § 3.815(d)(4) states that 

chromosomal abnormalities are not 

covered birth defects. It states that these 

include, but are not limited to, the 

following: Down syndrome and other 

Trisomies, Fragile X syndrome, 

Klinefelter’s syndrome, Turner 

syndrome (the VA study, The Merck 

Manual). 

Proposed § 3.815(d)(5) states that 

conditions that are due to birth-related 

injury are not covered birth defects. It 

states that these conditions include, but 

are not limited to, the following: brain 

damage due to anoxia during or around 

the time of birth; cases of cerebral palsy 

due to birth trauma; facial nerve palsy 

or other peripheral nerve injury; 

fractured clavicle; and Horner’s 

syndrome due to forceful manipulation 

during birth. 

Proposed § 3.815(d)(6) states that 

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. VA considers that these 

include, but are not limited to, the 

effects of maternal infection during 

pregnancy, such as rubella, 

toxoplasmosis, or syphilis, and include 

fetal alcohol syndrome or fetal effects of 

maternal drug use (known to result from 

maternal use of alcohol or drugs during 

pregnancy). Miscellaneous pediatric 

conditions are conditions which the 

Pregnancy Outcomes report discusses as 

‘‘unlikely birth defects.’’ They were 

reported by the mother in telephone 

interviews as birth defects, but 

pediatricians determined them to be 

pediatric conditions rather than birth 

defects. Accordingly, proposed 

§ 3.815(d)(6) states that the following are 

not covered birth defects: asthma and 

other allergies, hyaline membrane 

disease, maternal-infant blood 

incompatibility, neonatal infections, 

neonatal jaundice, post-infancy 

deafness/hearing impairment (occurring 

after the age of one year), prematurity, 

and refractive disorders of the eye (for 

example, farsightedness and 

astigmatism). 

Proposed § 3.815(d)(7) states that 

developmental disorders are not 

covered birth defects. VA considers that 

the following, which are listed in 

proposed § 3.815(d)(7), are 

developmental disorders rather than 

birth defects: attention deficit disorder; 

autism; epilepsy diagnosed after infancy 

(after the age of one year); learning 

disorders; and mental retardation 

(unless part of a syndrome that is a 

covered birth defect) (the VA study, 

http://www.autism-society.org/

whatisautism/autism.html#causes, and 

http://www.cdc.gov/nceh/cddh/

ddhome.htm).

Proposed § 3.815(d)(8) states that 

conditions that do not result in 

permanent physical or mental disability 

are not covered birth defects. VA 

believes that these include, but are not 

limited to, the following, which are 

listed in proposed § 3.815(d)(8): 

conditions rendered non-disabling 

through treatment; congenital heart 

problems surgically corrected or 

resolved without disabling residuals; 

heart murmurs unassociated with a 

diagnosed cardiac abnormality; 

hemangiomas that have resolved with or 

without treatment; and scars (other than 

of the head, face, or neck) as the only 

residual of corrective surgery for birth 

defects. 

Paragraph (h) of proposed § 3.815 

provides that 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 to 

make the determination as to whether a 

condition is a covered birth defect. 

Paragraph (e) of proposed § 3.815 

provides, in accordance with 38 U.S.C. 

1815(a) and (b), that VA will determine 

the level of disability currently 

resulting, in combination, from an 

individual’s covered birth defects and 

associated disabilities. It further 

provides that no monetary allowance 

will be payable under subchapter II of 

38 U.S.C. chapter 18 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. Also, as required by 38 

U.S.C. 1815(b), paragraph (e) sets forth 

a schedule for rating disabilities 

resulting from covered birth defects at 

four levels of disability, identified as 

204 Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Proposed Rules 

Level I, Level II, Level III, and Level IV, 

with Level I having the lowest, and 

Level IV the highest, level of disability. 

The schedule also includes Level 0 

when VA determines that an individual 

has one or more covered birth defects, 

but has no current disability resulting 

therefrom. Disability determinations 

would be based on an assessment of the 

effect on day-to-day functioning or the 

extent of disfigurement of the head, 

face, or neck due to one or more covered 

birth defects or associated disabilities. 

These proposed criteria are necessarily 

broad because of the array of potential 

disabilities affecting any body system or 

multiple systems and are designed to be 

applicable to the widest possible variety 

of disabilities. We propose that the 

functions to be considered in assessing 

limitation of daily activities be mobility 

(ability to stand and walk, including 

balance and coordination), manual 

dexterity, stamina, speech, hearing, 

vision (other than correctable refraction 

errors), memory, ability to concentrate, 

appropriateness of behavior, and 

urinary and fecal continence. While 

disfigurement does not necessarily limit 

any of these functions, although it may 

limit communication, it may, in our 

judgment, and based on our experience 

with disability assessment in veterans, 

be significantly disabling in and of 

itself, and we are therefore proposing to 

include it in the criteria. These are 

similar to the types of functional 

impairments described in literature 

pertaining to disabilities, for example, 

in Americans with Disabilities Act 

(ADA) documents, such as the Glossary 

of Common Characteristics and 

Limitations of Disabilities in ADA 

Handbook, Appendix IV and ADA Title 

III Regulations, and in a 1997 Institute 

of Medicine document, ‘‘Enabling 

America: Assessing the Role of 

Rehabilitation Science and 

Engineering.’’ 

We propose that Level I be assigned 

if the individual has residual physical 

or mental effects that only occasionally 

or intermittently limit or prevent some 

daily activities, or 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). 

We propose that Level II be assigned if 

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, 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). We 

propose that Level III be assigned on 

one of four bases: if 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 selfcare, such as eating, dressing, grooming, 

and carrying out personal hygiene; the 

individual is unable to work or attend 

school, travel, or carry out household 

chores, or does so intermittently and 

with difficulty; the individual’s 

communication, behavior, social 

interaction, and intellectual functioning 

are not entirely appropriate for age; or 

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). We propose 

that Level IV be assigned on one of three 

bases: if the individual has residual 

physical or mental effects that prevent 

age-appropriate self-care, such as eating, 

dressing, grooming, and carrying out 

personal hygiene; communication, 

behavior, social interaction, and 

intellectual functioning are grossly 

inappropriate for age; or 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). We believe these 

criteria will establish objective measures 

to identify discrete levels of disability, 

in accordance with the payment levels 

established by Congress that can be 

applied consistently. 

Because VA medical facilities 

generally provide examination and care 

only to veterans, VA lacks pediatric 

examiners and pediatric specialists and 

some of the other specialists who might 

participate in the evaluation and care of 

individuals with covered birth defects. 

Therefore, paragraph (f) of proposed 

§ 3.815 provides that VA may accept 

statements from private physicians, as 

well as examination reports from 

government or private institutions, for 

the purposes of determining whether an 

individual has a covered birth defect 

and rating claims from individuals with 

covered birth defects. It also provides 

that if they are adequate for such 

purposes, VA may make the 

determination and rating without 

further examination. 

Paragraph (g) of proposed § 3.815 

provides that VA will reconsider its 

determination that an individual has a 

covered birth defect and/or the level of 

disability due to covered birth defects 

whenever it receives medical evidence 

indicating that a change is warranted. In 

general, we believe that the severity of 

these conditions will be stable but that 

this provision provides a reasonable 

procedure for evaluating those that are 

not. 

Paragraph (i) of proposed § 3.815 

contains effective date provisions for 

awards, and increases, of the monetary 

allowance under 38 U.S.C. chapter 18, 

subchapter II. Paragraph (j) of proposed 

§ 3.815 contains provisions concerning 

reductions and discontinuances of that 

monetary allowance. These reflect 

statutory requirements. 

Comment Period 

We are providing a comment period 

of 30 days for this proposed rule due to 

the December 1, 2001, effective date of 

the new benefit programs enacted by 

section 401 of Public Law 106–419, the 

statutory requirement for a final rule 

prior to that date, and the need to have 

a final rule as soon as possible that 

would enable identification of, and 

evaluation of disability from, covered 

birth defects in order to avoid delay in 

the commencement of those benefits. 

Paperwork Reduction Act of 1995 

This proposed rule would remove the 

approved information collection 

provisions contained in 38 CFR 3.814 as 

unnecessary or obsolete. The version of 

the ‘‘Application for Spina Bifida 

Benefits’’ form that is published in 

§ 3.814(b) is no longer being used. The 

Office of Management and Budget 

(OMB) has approved a revision of the 

form, under the same OMB control 

number, 2900–0572. VA intends to seek 

from OMB approval under the 

Paperwork Reduction Act for further 

modifications to that form. This 

proposed rule does not contain 

provisions constituting new collections 

of information under the Paperwork 

Reduction Act. Any provisions that 

might otherwise require approval as a 

modification to an information 

collection would not affect 10 or more 

persons in a twelve-month period. 

Executive Order 12866 

This document has been reviewed by 

the Office of Management and Budget 

under Executive Order 12866. 

Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Proposed Rules 205

Regulatory Flexibility Act 

The Secretary hereby certifies that 

these regulatory amendments would not 

have a significant economic impact on 

a substantial number of small entities as 

they are defined in the Regulatory 

Flexibility Act, 5 U.S.C. 601–612. The 

reason for this certification is that these 

amendments would not directly affect 

any small entities. Only individuals 

could be directly affected. Therefore, 

pursuant to 5 U.S.C. 605(b), these 

amendments are exempt from the initial 

and final regulatory flexibility analysis 

requirements of sections 603 and 604. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

requires, at 2 U.S.C. 1532, that agencies 

prepare an assessment of anticipated 

costs and benefits before developing any 

rule that may result in an expenditure 

by State, local, or tribal governments, in 

the aggregate, or by the private sector, of 

$100 million or more in any given year. 

This rule would have no consequential 

effect on State, local, or tribal 

governments.

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance program numbers for benefits 

affected by this rule are 64.104, 64.109, 

64.127, and 64.128. There are no Catalog of 

Federal Domestic Assistance program 

numbers for other benefits affected by this 

rule.

List of Subjects in 38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, Veterans, 

Vietnam.

Approved: October 26, 2001. 

Anthony J. Principi, 

Secretary of Veterans Affairs.

For the reasons set forth in the 

preamble, 38 CFR part 3 is proposed to 

be 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, paragraphs (c) and (d) are 

revised to read as follows:

§ 3.27 Automatic adjustment of benefit 

rates.

* * * * *

(c) Monetary allowance under 38 

U.S.C. chapter 18 for certain individuals 

who are children of Vietnam veterans.

Whenever there is a cost-of-living 

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. chapter 18.

(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 

5312)

(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. chapter 18 

made under this section shall be 

published in the Federal Register.

(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 

5312(c)(1))

3. In § 3.29, paragraph (c) is revised to 

read as follows:

§ 3.29 Rounding

* * * * *

(c) Monthly rates under 38 U.S.C. 

chapter 18. When increasing the 

monthly monetary allowance rates 

under 38 U.S.C. chapter 18 for certain 

individuals who are children of 

Vietnam veterans, 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), 1815(d), 

5312)

§ 3.31 [Amended] 

4. Section 3.31 is amended by: 

a. In the introductory text, removing 

‘‘the monetary allowance under 38 

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

spina bifida’’ and adding, in its place, ‘‘a 

monetary allowance under 38 U.S.C. 

chapter 18 for an individual’’. 

b. In paragraph (c)(4)(ii), removing 

‘‘the monetary allowance for children 

suffering from spina bifida’’ and adding, 

in its place, ‘‘a monetary allowance 

under 38 U.S.C. chapter 18’’. 

c. Revising the authority citation. 

The revision reads as follows:

§ 3.31 Commencement of the period of 

payment.

* * * * *

(Authority: 38 U.S.C. 1822, 5111)

5. In § 3.105, paragraph (g) is revised 

to read as follows:

§ 3.105 Revision of decisions.

* * * * *

(g) Reduction in evaluation—

monetary allowance under 38 U.S.C. 

chapter 18 for certain individuals who 

are children of Vietnam veterans. Where 

a reduction or discontinuance of a 

monetary allowance currently being 

paid under 38 U.S.C. chapter 18 is 

considered warranted, 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 monetary 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 60 

days from the date of notice to the 

beneficiary of the proposed reduction.

(Authority: 38 U.S.C. 1822, 5112(b)(6))

* * * * *

§ 3.114 [Amended] 

6. Section 3.114 is amended by: 

a. In the introductory text of 

paragraph (a), removing ‘‘the monetary 

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

child suffering from spina bifida’’ each 

place it appears and adding, in its place, 

‘‘a monetary allowance under 38 U.S.C. 

chapter 18 for an individual’’. 

b. Revising the authority citation at 

the end of paragraph (a). 

The revision reads as follows:

§ 3.114 Change of law or Department of 

Veterans Affairs issue.

* * * * *

(Authority: 38 U.S.C. 1822, 5110(g))

* * * * *

§ 3.158 [Amended] 

7. In § 3.158, paragraphs (a) and (c) 

are amended by removing ‘‘1805’’ and 

adding, in its place, ‘‘chapter 18’’.

§ 3.216 [Amended] 

8. Section 3.216 is amended by: 

a. Removing ‘‘or the monetary 

allowance for a child suffering from 

spina bifida who is a child of a Vietnam 

veteran under § 3.814 of this part’’ and 

adding, in its place, ‘‘a monetary 

allowance under 38 U.S.C. chapter 18’’. 

b. Revising the authority citation. 

The revision reads as follows:

§ 3.216 Mandatory disclosure of social 

security numbers.

* * * * *

(Authority: 38 U.S.C. 1822, 5101(c))

* * * * *

9. In § 3.261, paragraph (a)(40) is 

revised to read as follows:

§ 3.261 Character of income; exclusions 

and estates.

* * * * *

(a) * * *

206 Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Proposed Rules 

Income Dependency 

(parents) 

Dependency 

and indemnity 

compensation 

(parents) 

Pension; old-law 

(veterans, surviving spouses 

and children) 

Pension; Section 306 (veterans, surviving 

spouses and 

chldren) 

See— 

* * * * * * * 

(40) Monetary allowance under 38 U.S.C. chapter 18 

for certain individuals who are children of Vietnam 

veterans (38 U.S.C. 1823(c)).

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

10. In § 3.262, paragraph (y) is revised 

to read as follows:

§ 3.262 Evaluation of income.

* * * * *

(y) Monetary allowance under 38 

U.S.C. chapter 18 for certain individuals 

who are children of Vietnam veterans.

There shall be excluded from income 

computation any allowance paid under 

the provisions of 38 U.S.C. 18 to or for 

an individual who is the child of a 

Vietnam veteran.

(Authority: 38 U.S.C. 1823(c))

11. In § 3.263, paragraph (g) is revised 

to read as follows:

§ 3.263 Corpus of estate; net worth.

* * * * *

(g) Monetary allowance under 38 

U.S.C. chapter 18 for certain individuals 

who are children of Vietnam veterans.

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. chapter 18 to or for an 

individual who is a child of a Vietnam 

veteran.

(Authority: 38 U.S.C. 1823(c))

12. In § 3.272, paragraph (u) is revised 

to read as follows:

§ 3.272 Exclusions from income.

* * * * *

(u) Monetary allowance under 38 

U.S.C. chapter 18 for certain individuals 

who are children of Vietnam veterans.

Any allowance paid under the 

provisions of 38 U.S.C. chapter 18 to or 

for an individual who is a child of a 

Vietnam veteran.

(Authority: 38 U.S.C. 1823(c))

13. In § 3.275, paragraph (i) is revised 

to read as follows:

§ 3.275 Criteria for evaluating net worth.

* * * * *

(i) Monetary allowance under 38 

U.S.C. chapter 18 for certain individuals 

who are children of Vietnam veterans.

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. chapter 18 to or for an 

individual who is a child of a Vietnam 

veteran.

(Authority: 38 U.S.C. 1823(c))

14. In § 3.403, paragraph (b) is revised 

and paragraph (c) is added, to read as 

follows:

§ 3.403 Children.

* * * * *

(b) Monetary allowance under 38 

U.S.C. 1805 for an individual suffering 

from spina bifida who is a child of a 

Vietnam veteran. An award of the 

monetary allowance under 38 U.S.C. 

1805 to or for an individual suffering 

from spina bifida who is a child of a 

Vietnam veteran will be effective 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. 1822, 5110; sec. 422(c), 

Pub. L. 104–204, 110 Stat. 2926)

(c) Monetary allowance under 38 

U.S.C. 1815 for an individual with 

covered birth defects who is a child of 

a woman Vietnam veteran. Except as 

provided in § 3.114(a) or § 3.815(i), an 

award of the monetary allowance under 

38 U.S.C. 1815 to or for an individual 

with one or more covered birth defects 

who is a child of a woman Vietnam 

veteran will be effective 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 later.

(Authority: 38 U.S.C. 1815, 1822, 1824, 5110)

15. In § 3.503, paragraph (b) is revised 

to read as follows:

§ 3.503 Children.

* * * * *

(b) Monetary allowance under 38 

U.S.C. chapter 18 for certain individuals 

who are children of Vietnam veterans.

The effective date of discontinuance of 

the monthly allowance under 38 U.S.C. 

chapter 18 will be the last day of the 

month before the month in which the 

death of the individual occurred.

(Authority: 38 U.S.C. 1822, 5112(b))

16. Section 3.814 is amended by: 

a. Revising the section heading. 

b. Adding a heading to paragraph (a). 

c. In paragraph (a), revising the first 

sentence and, in the second sentence, 

removing ‘‘other related individual’’ and 

adding, in its place, ‘‘related person’’. 

d. Removing and reserving paragraph 

(b). 

e. In paragraph (c)(1), removing ‘‘an 

individual’’ and adding, in its place, ‘‘a 

person’’ and removing ‘‘individual’s’’ 

and adding, in its place, ‘‘person’s’’. 

f. In paragraph (c)(2), removing 

‘‘§ .3.204(a)(1), VA shall’’ and adding, in 

its place, ‘‘§ 3.204(a)(1), VA will’’ and by 

removing ‘‘an individual’s biological 

father or mother is or was’’ and adding, 

in its place, ‘‘a person is the biological 

son or daughter of’’. 

g. Removing designation ‘‘(d)’’ from 

paragraph (d)(1) and by adding a 

heading for paragraph (d). 

h. Removing the authority citation at 

the end of paragraph (d). 

i. In paragraph (e), removing 

‘‘children’’ and adding, in its place, ‘‘an 

individual’’. 

j. Revising the authority citation at the 

end of the section. 

The revisions and additions read as 

follows:

§ 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. * * *

* * * * *

(d) Disability evaluations. ***

* * * * *

(Authority: 38 U.S.C. 501, 1805, 1811, 1812, 

1821, 1822, 1823, 1824, 5101, 5110, 5111, 

5112)

17. Section 3.815 is added to read as 

follows:

Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Proposed Rules 207

§ 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 birthrelated 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; 

208 Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Proposed Rules 

(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 wellestablished 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 selfcare, 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. 

Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Proposed Rules 209

(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 later. 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)

[FR Doc. 01–31673 Filed 12–31–01; 8:45 am] 

BILLING CODE 8320–01–P

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AK88 

Health Care for Certain Children of 

Vietnam Veterans—Covered Birth 

Defects and Spina Bifida

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

SUMMARY: This document proposes to 

establish regulations regarding health 

care benefits for women Vietnam 

veterans’ children with covered birth 

defects. It would revise the current 

regulations regarding health care for 

Vietnam veterans’ children suffering 

from spina bifida to also encompass 

health care for women Vietnam 

veterans’ children with certain other 

birth defects. This is necessary to 

provide health care for such children in 

accordance with recently enacted 

legislation. The revisions would also 

reduce the requirements for 

preauthorization, reflect changes in 

organizational and personnel titles, 

revise contact information for the VHA 

Health Administration Center, and make 

nonsubstantive changes for purposes of 

clarity. Companion documents entitled 

‘‘Monetary Allowances for Certain 

Children of Vietnam Veterans; 

Identification of Covered Birth Defects’’ 

(RIN 2900–AK67) and ‘‘Vocational 

Training for Certain Children of 

Vietnam Veterans—Covered Birth 

Defects and Spina Bifida’’ (RIN 2900–

AK90) are set forth in the Proposed 

Rules section of this issue of the Federal 

Register.

DATES: Comments must be received by 

VA on or before February 1, 2002, 

except that comments on the 

information collection provisions in this 

document must be received on or before 

March 4, 2002.

ADDRESSES: Mail or hand deliver written 

comments to: Director, Office of 

Regulations Management (02D), Room 

1154, 810 Vermont Ave., NW, 

Washington, DC 20420; or fax comments 

to (202) 273–9289; or e-mail comments 

to OGCRegulations@mail.va.gov.

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900–

AK88.’’ All comments received will be 

available for public inspection in the 

Office of Regulations Management, 

Room 1158, between the hours of 8 a.m. 

and 4:30 p.m., Monday through Friday 

(except holidays). In addition, see the 

Paperwork Reduction Act heading 

under the SUPPLEMENTARY INFORMATION

section of this preamble regarding 

submission of comments on the 

information collection provisions.

FOR FURTHER INFORMATION CONTACT:

Susan Schmetzer, Chief, Policy & 

Compliance Division, VHA Health 

Administration Center, Department of 

Veterans Affairs, P.O. Box 65020, 

Denver, CO 80206, telephone (303) 331–

7552.

SUPPLEMENTARY INFORMATION: Prior to 

the enactment of Public Law 106–419 

on November 1, 2000, the provisions of 

38 U.S.C. chapter 18 only concerned 

benefits for children with spina bifida 

who were born to Vietnam veterans. 

Effective December 1, 2001, section 401 

of Public Law 106–419 amends 38 

U.S.C. chapter 18 to add benefits for 

women Vietnam veterans’ children with 

certain birth defects (referred to below 

as ‘‘covered birth defects’’). 

As amended, 38 U.S.C. chapter 18 

provides for three separate types of 

benefits for women Vietnam veterans’ 

children who suffer from covered birth 

defects as well as for Vietnam veterans’ 

children who suffer from spina bifida: 

(1) Monthly monetary allowances for 

various disability levels; (2) provision of 

health care needed for the child’s spina 

bifida or covered birth defects; and (3) 

provision of vocational training and 

rehabilitation. 

This document proposes to amend 

VA’s ‘‘Medical’’ regulations (38 CFR 

part 17) by revising the regulations in 

§§ 17.900 through 17.905 concerning the 

provision of health care. These 

regulations currently only concern the 

provision of health care for Vietnam 

veterans’ children with spina bifida. 

This document proposes to revise the 

regulations by adding women Vietnam 

veterans’ children with covered birth 

defects to the existing regulatory 

framework. The revisions would also 

reduce the requirements for 

preauthorization, reflect changes in 

organizational and personnel titles, 

revise contact information for the VHA 

Health Administration Center, and make 

nonsubstantive changes for purposes of 

clarity. As the proposed rule provides, 

the mailing address for the VHA Health 

Administration Center for spina bifida is 

P.O. Box 65025, Denver, CO 80206–

9025 and for covered birth defects is 

P.O. Box 469027, Denver, CO 80246–

9027. 

As a condition of eligibility for the 

provision of health care for women 

Vietnam veterans’ children with 

covered birth defects, it is proposed that 

the child must be an individual

determined to have a covered birth 

defect under 38 CFR 3.815. (Definitions 

of the terms individual and covered 

birth defect and provisions concerning