[Federal Register Volume 66, Number 44 (Tuesday, March 6, 2001)]
[Rules and Regulations]
[Pages 13435-13437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5450]


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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.

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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 day-to-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,

[[Page 13436]]

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 Sec. 3.814, the heading for the section and paragraphs (a), 
(c)(2), and (d) are revised to read as follows:


Sec. 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 Sec. . 3.204(a)(1), VA shall require the types of 
evidence specified in Secs. 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

[[Page 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