Federal Register / Vol. 66, No. 44 / Tuesday, March 6, 2001 / Rules and Regulations 13435

(i) Eighth Street—one prolonged blast

followed by one short blast.

(ii) Tenth Street—two short blasts

followed by one prolonged blast.

(4) When signal is given by car ferry

or other large vessel to pass either of the

two bridges, the remaining bridge shall

open promptly so that such vessels shall

not be held between the two bridges.

(b) The draw of the Wisconsin Central

railroad bridge, mile 0.91 at Manitowoc,

shall open on signal except that:

(1) From April 1 through October 31

between the hours of 10:30 p.m. and

4:30 a.m., the draws shall open on

signal if at least a 6 hour advance notice

is given.

(2) From November 1 through March

31 the draw shall open on signal if at

least a 12 hour advance notice is given.

(3) Opening signal for this bridge is

two short blasts followed by one

prolonged blast.

Dated: February 20, 2001.

James D. Hull,

Rear Admiral, U.S. Coast Guard, Commander,

Ninth Coast Guard District.

[FR Doc. 01–5443 Filed 3–5–01; 8:45 am]

BILLING CODE 4910–15–P

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 3

RIN 2900–AJ51

Revised Criteria for Monetary

Allowance for an Individual Born With

Spina Bifida Whose Biological Father

or Mother Is a Vietnam Veteran

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the

evaluation criteria that the Department

of Veterans Affairs (VA) uses to

determine the amount of the monthly

monetary allowance that it pays to an

individual born with spina bifida whose

biological father or mother is a Vietnam

veteran. The intended effect of this

amendment is to clarify the criteria to

ensure that they are applied consistently

and to add a provision allowing the

Director of the Compensation and

Pension Service to adjust the payment

level for individuals with disabling

impairments due to spina bifida that are

not addressed in the evaluation criteria.

DATES: Effective Date: This amendment

is effective April 5, 2001.

FOR FURTHER INFORMATION CONTACT:

Caroll McBrine, M.D., Consultant,

Policy and Regulations Staff (211A),

Compensation and Pension Service,

Veterans Benefits Administration,

Department of Veterans Affairs, 810

Vermont Avenue NW., Washington, DC

20420, (202) 273–7230.

SUPPLEMENTARY INFORMATION: In the

Federal Register of March 13, 2000 (65

FR 13254), we published a proposal to

revise the criteria for determining the

level of payment for an individual born

with spina bifida whose biological

father or mother is a Vietnam veteran.

The proposed revisions were developed

based on VA’s review of a sample of

adjudicated spina bifida claims to

determine the effectiveness of the

evaluation criteria and how they were

applied, a further review of the medical

literature, and suggestions from several

veterans service organizations. The

proposed evaluation criteria were based

on certain medical impairments due to

spina bifida and on the disabling effects

of those impairments on ordinary dayto-day activities. We also proposed to

allow the Director of the Compensation

and Pension Service to increase the

payment level for an individual with

spina bifida who has such impairments

as blindness, uncontrolled seizures, or

renal failure.

In addition, we proposed to change

the references to ‘‘child’’ and ‘‘children’’

to ‘‘individual’’ and ‘‘individuals’’

throughout 38 CFR 3.814 and to define

the word ‘‘individual’’ to make it clear

that the regulation applies to eligible

individuals regardless of age.

We received one comment, which was

from the Veterans of Foreign Wars.

Under VA’s initial evaluation criteria

for individuals with disabilities due to

spina bifida, the effects of bowel and

bladder impairment were evaluated as

follows: Level I if ‘‘continent of urine

and feces’’; Level II if ‘‘requires drugs or

intermittent catheterization or other

mechanical means to maintain proper

urinary bladder function, or

mechanisms for proper bowel function’’;

and Level III if ‘‘has complete urinary or

fecal incontinence.’’ We proposed that

the effects of bowel and bladder

impairment be evaluated as follows:

Level I if ‘‘continent of urine and feces

without the use of medication or other

means to control incontinence’’; Level II

if ‘‘requires medication or other means

to control the effects of urinary bladder

impairment and is unable no more than

two times per week to remain dry for at

least three hours at a time during

waking hours; or, requires bowel

management techniques or other

treatment to control the effects of bowel

impairment but does not have fecal

leakage severe or frequent enough to

require daily wearing of absorbent

materials’’; and Level III if ‘‘despite the

use of medication or other means to

control the effects of urinary bladder

impairment, at least three times per

week is unable to remain dry for three

hours at a time during waking hours; or,

despite bowel management techniques

or other treatment to control the effects

of bowel impairment, has fecal leakage

severe or frequent enough to require

daily wearing of absorbent materials; or,

regularly requires manual evacuation or

digital stimulation to empty the bowel.’’

The commenter suggested that we

change the Level III requirement for

‘‘daily wearing of absorbent materials’’

to ‘‘wearing of absorbent materials on

most days’’ because a requirement for

daily wearing of absorbent materials is

too stringent, considering that

constipation may occur intermittently

and absorbent materials not be

necessary for a day or two.

On further consideration, we agree

that the commenter’s suggested change

would be an improvement, in view of

the fact that when constipation is

present, the individual might feel

comfortable not wearing absorbent

materials for a day or so, although they

would ordinarily wear them on most

days and be incontinent a substantial

part of the time. We have therefore

revised the criteria for Level III by

changing ‘‘daily wearing of absorbent

materials’’ to ‘‘wearing of absorbent

materials at least four days a week’’ and

revised the Level II criteria accordingly.

The commenter also felt that Level III

should be assigned for those who

undergo a surgical procedure that

permanently alters the structure and/or

function of the bowel or bladder, for

example, a colostomy, because these

surgical alterations and appliances

disrupt day-to-day activities as much as

the frequent need to wear absorbent

materials.

We agree in part with the commenter.

There are a number of surgical

procedures and appliances that may be

used to improve bowel and bladder

function. At times they make an

individual continent or at least decrease

the extent or frequency of incontinence;

however, they are not always successful.

For example, an artificial bladder

sphincter that is implanted for urinary

incontinence might result in improved

bladder function with diminished

incontinence or no incontinence at all,

but it might also fail to improve bladder

function significantly. When an

individual must use appliances or

undergo surgical procedures, at least a

Level II assignment would be warranted

because such use or procedure is akin

to the use of medication or other means

to control the effects of urinary bladder

impairment. If the device or surgery

does not restore continence sufficiently,

13436 Federal Register / Vol. 66, No. 44 / Tuesday, March 6, 2001 / Rules and Regulations

a Level III assignment would be

warranted. However, the presence of an

appliance or history of a surgical

procedure does not necessarily mean an

individual will have the extent of

functional impairment contemplated by

the Level III criteria. If incontinence is

diminished by a surgical procedure or

appliance, day-to-day functioning

should be improved, and a Level III

payment would not be warranted.

Therefore, no overall change in criteria

is needed to assure the assignment of an

appropriate payment level to

individuals who must wear an

appliance or who have undergone a

surgical procedure that alters the

structure of the bowel or bladder.

In the case of a colostomy, as with

other procedures, some individuals are

helped more than others. Some become

continent of feces with a colostomy and

may not need to wear a bag. In this case,

the resulting impairment is

contemplated by the criteria listed

under Level II. Individuals who have a

colostomy have required surgery but

may not have fecal leakage severe or

frequent enough to require wearing of

absorbent materials on most days. In

fact, they may not need to wear

absorbent materials at all. Others with a

colostomy remain incontinent and must

wear a bag. In our judgment, the need

to wear a bag is akin to the Level III

criteria, specifically, the need to wear

absorbent materials. To assure

consistency of evaluations for a

relatively common procedure with

different possible outcomes, we have

added ‘‘a colostomy that requires

wearing a bag’’ to the Level III criteria

and ‘‘a colostomy that does not require

wearing a bag’’ to the Level II criteria.

Impairment resulting from other

procedures and the use of other

appliances can be assessed using the

existing criteria to determine whether

Level II (which would be the minimum)

or Level III is appropriate, according to

the extent of urinary or fecal

incontinence.

VA appreciates the comment

submitted in response to the proposed

rule, which is now adopted with the

amendments noted above.

Paperwork Reduction Act

This document contains no provisions

constituting a collection of information

under the Paperwork Reduction Act (44

U.S.C. 3501–3520).

Executive Order 12866

This regulatory amendment has been

reviewed by the Office of Management

and Budget under the provisions of

Executive Order 12866, Regulatory

Planning and Review, dated September

30, 1993.

Regulatory Flexibility Act

The Secretary hereby certifies that

this regulatory amendment will not

have a significant economic impact on

a substantial number of small entities as

they are defined in the Regulatory

Flexibility Act (RFA), 5 U.S.C. 601–612.

The reason for this certification is that

this amendment would not directly

affect any small entities. Only VA

beneficiaries could be directly affected.

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

this amendment is exempt from the

initial and final regulatory flexibility

analysis requirements of sections 603

and 604.

(The Catalog of Federal Domestic

Assistance program numbers are 64.104 and

64.109.)

List of Subjects in 38 CFR Part 3

Administrative practice and

procedure, Claims, Disability benefits,

Health care, Pensions, Radioactive

materials, Veterans, Vietnam.

Approved: February 15, 2001.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons set forth in the

preamble, 38 CFR part 3 is amended as

set forth below:

PART 3—ADJUDICATION

Subpart A—Pension, Compensation,

and Dependency and Indemnity

Compensation

1. The authority citation for part 3,

subpart A continues to read as follows:

Authority: 38 U.S.C. 501(a), unless

otherwise noted.

2. In § 3.814, the heading for the

section and paragraphs (a), (c)(2), and

(d) are revised to read as follows:

§ 3.814 Monetary allowance under 38

U.S.C. 1805 for an individual suffering from

spina bifida whose biological father or

mother is or was a Vietnam veteran.

(a) VA will pay a monthly allowance

based upon the level of disability

determined under the provisions of

paragraph (d) of this section to or for an

individual who it has determined is

suffering from spina bifida and whose

biological father or mother is or was a

Vietnam veteran. Receipt of this

allowance will not affect the right of the

individual or any other related

individual to receive any other benefit

to which he or she may be entitled

under any law administered by VA. An

individual suffering from spina bifida is

entitled to only one monthly allowance

under this section, even if the

individual’s biological father and

mother are or were both Vietnam

veterans.

* * * * *

(c) * * *

(2) Individual. For the purposes of

this section, the term ‘‘individual’’

means a person, regardless of age or

marital status, whose biological father or

mother is or was a Vietnam veteran and

who was conceived after the date on

which the veteran first served in the

Republic of Vietnam during the Vietnam

era. Notwithstanding the provisions of

§ . 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 an

individual’s biological father or mother

is or was a Vietnam veteran.

* * * * *

(d)(1) Except as otherwise specified in

this paragraph, VA will determine the

level of payment as follows:

(i) Level I. The individual walks

without braces or other external support

as his or her primary means of mobility

in the community, has no sensory or

motor impairment of the upper

extremities, has an IQ of 90 or higher,

and is continent of urine and feces

without the use of medication or other

means to control incontinence.

(ii) Level II. Provided that none of the

disabilities is severe enough to warrant

payment at Level III, and the individual:

walks with braces or other external

support as his or her primary means of

mobility in the community; or, has

sensory or motor impairment of the

upper extremities, but is able to grasp

pen, feed self, and perform self care; or,

has an IQ of at least 70 but less than 90;

or, requires medication or other means

to control the effects of urinary bladder

impairment and no more than two times

per week is unable to remain dry for at

least three hours at a time during

waking hours; or, requires bowel

management techniques or other

treatment to control the effects of bowel

impairment but does not have fecal

leakage severe or frequent enough to

require wearing of absorbent materials

at least four days a week; or, has a

colostomy that does not require wearing

a bag.

(iii) Level III. The individual uses a

wheelchair as his or her primary means

of mobility in the community; or, has

sensory or motor impairment of the

upper extremities severe enough to

prevent grasping a pen, feeding self, and

performing self care; or, has an IQ of 69

or less; or, despite the use of medication

or other means to control the effects of

urinary bladder impairment, at least

three times per week is unable to remain

Federal Register / Vol. 66, No. 44 / Tuesday, March 6, 2001 / Rules and Regulations 13437

dry for three hours at a time during

waking hours; or, despite bowel

management techniques or other

treatment to control the effects of bowel

impairment, has fecal leakage severe or

frequent enough to require wearing of

absorbent materials at least four days a

week; or, regularly requires manual

evacuation or digital stimulation to

empty the bowel; or, has a colostomy

that requires wearing a bag.

(2) If an individual who would

otherwise be paid at Level I or II has one

or more disabilities, such as blindness,

uncontrolled seizures, or renal failure

that result either from spina bifida, or

from treatment procedures for spina

bifida, the Director of the Compensation

and Pension Service may increase the

monthly payment to the level that, in

his or her judgment, best represents the

extent to which the disabilities resulting

from spina bifida limit the individual’s

ability to engage in ordinary day-to-day

activities, including activities outside

the home. A Level II or Level III

payment will be awarded depending on

whether the effects of a disability are of

equivalent severity to the effects

specified under Level II or Level III.

(3) VA may accept statements from

private physicians, or examination

reports from government or private

institutions, for the purpose of rating

spina bifida claims without further

examination, provided the statements or

reports are adequate for assessing the

level of disability due to spina bifida

under the provisions of paragraph (d)(1)

of this section. In the absence of

adequate medical information, VA will

schedule an examination for the

purpose of assessing the level of

disability.

(4) VA will pay an individual eligible

for a monetary allowance due to spina

bifida at Level I unless or until it

receives medical evidence supporting a

higher payment. When required to

reassess the level of disability under

paragraph (d)(5) or (d)(6) of this section,

VA will pay an individual eligible for

this monetary allowance at Level I in

the absence of evidence adequate to

support a higher level of disability or if

the individual fails to report, without

good cause, for a scheduled

examination. Examples of good cause

include, but are not limited to, the

illness or hospitalization of the

claimant, death of an immediate family

member, etc.

(5) VA will pay individuals under the

age of one year at Level I unless a

pediatric neurologist or a pediatric

neurosurgeon certifies that, in his or her

medical judgment, there is a

neurological deficit that will prevent the

individual from ambulating, grasping a

pen, feeding himself or herself,

performing self care, or from achieving

urinary or fecal continence. If any of

those deficits are present, VA will pay

the individual at Level III. In either case,

VA will reassess the level of disability

when the individual reaches the age of

one year.

(6) VA will reassess the level of

payment whenever it receives medical

evidence indicating that a change is

warranted. For individuals between the

ages of one and twenty-one, however, it

must reassess the level of payment at

least every five years.

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

[FR Doc. 01–5450 Filed 3–5–01; 8:45 am]

BILLING CODE 8320–01–P

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 19

RIN 2900–AK61

Appeals Regulations: Title for

Members of the Board of Veterans’

Appeals—Rescission

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: In a document published in

the Federal Register on September 14,

2000 (65 FR 55461), we amended the

Department of Veterans Affairs (VA)

Appeals Regulations by providing that a

Member of the Board of Veterans’

Appeals (Board) may also be known as

a Veterans Law Judge. Consistent with

legal authority, we published the

amendment without providing an

opportunity for notice-and-comment.

On October 27, 2000, six veterans

service organizations wrote to the

Acting Secretary, opposing the

amendment and arguing that they

should have been provided an

opportunity to comment before we

made such a change. Under these

circumstances, we agreed to rescind the

amendment and propose to reestablish

the amendment. Accordingly, this

document rescinds the amendment. In a

companion document in the ‘‘Proposed

Rules’’ section of this issue of the

Federal Register, we are proposing to

amend the regulations to again provide

that a Member of the Board may also be

known as a Veterans Law Judge.

DATES: Effective Date: March 6, 2001.

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Senior Deputy Vice

Chairman, Board of Veterans’ Appeals

(01C), Department of Veterans Affairs,

810 Vermont Avenue, NW.,

Washington, DC 20420 (202–565–5978).

SUPPLEMENTARY INFORMATION: This final

rule concerns agency organization,

procedure or practice and is not a

substantive rule. Accordingly, this final

rule is exempt from the notice-andcomment requirements and the delayed

effective date provisions of 5 U.S.C. 553.

Paperwork Reduction Act

This document contains no provisions

constituting a collection of information

under the Paperwork Reduction Act (44

U.S.C. 3501–3520).

Executive Order 12866

This document has been reviewed by

the Office of Management and Budget

under Executive Order 12866.

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, 5 U.S.C. 601–612. This rule will not

affect small businesses. Therefore,

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

rule is exempt from the initial and final

regulatory flexibility analyses

requirements of sections 603 and 604.

List of Subjects in 38 CFR Part 19

Administrative practice and

procedure, Claims, Veterans.

Dated: February 21, 2001.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons set out in the

preamble, 38 CFR part 19 is amended as

set forth below:

PART 19—BOARD OF VETERANS’

APPEALS: APPEALS REGULATIONS

1. The authority citation for part 19

continues to read as follows:

Authority: 38 U.S.C. 501(a), unless

otherwise noted.

2. Section 19.2 is revised to read as

follows:

§ 19.2 Composition of the Board.

The Board consists of a Chairman,

Vice Chairman, Deputy Vice Chairmen,

Members and professional,

administrative, clerical and

stenographic personnel. Deputy Vice

Chairmen are Members of the Board

who are appointed to that office by the

Secretary upon the recommendation of

the Chairman.

Authority: 38 U.S.C. 501(a), 512, 7101(a))

[FR Doc. 01–5451 Filed 3–5–01; 8:45 am]

BILLING CODE 8320–01–P