[Federal Register Volume 62, Number 84 (Thursday, May 1, 1997)]
[Proposed Rules]
[Pages 23724-23731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11256]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AI70
Monetary Allowance Under 38 U.S.C. 1805 for a Child Born with
Spina Bifida Who Is a Child of a Vietnam Veteran
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: This document proposes to amend the Department of Veterans
Affairs (VA) adjudication regulations to provide for payment of a
monetary allowance to a child born with spina bifida who is a child of
a Vietnam veteran. The intended effect of this amendment is to
implement legislation authorizing VA to provide such benefits. A
companion document (RIN: 2900-AI65) concerning a proposal for the
provision of health care for such children is set forth in the Proposed
Rules section of this issue of the Federal Register.
DATES: Comments must be received by VA on or before June 30, 1997.
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. Comments should
indicate that they are submitted in response to ``RIN 2900-AI70.'' All
written comments received will be available for public inspection at
the above address in the Office of Regulations Management, Room 1158,
between the hours of 8 a.m. and 4 p.m., Monday through Friday (except
holidays).
FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420,
telephone (202) 273-7230.
SUPPLEMENTARY INFORMATION: Section 3 of the Agent Orange Act of 1991,
Public Law 102-4, 105 Stat. 11, directed the Secretary of Veterans
Affairs to seek to enter into an agreement with the National Academy of
Sciences (NAS) for a series of reports to review and summarize the
scientific evidence concerning the association between exposure to
herbicides used in support of military operations in the Republic of
Vietnam during the Vietnam era, and each disease suspected to be
associated with such exposure. In its most recent report, entitled
``Veterans and Agent Orange: Update 1996,'' which was released on March
14, 1996, NAS noted what it considered ``limited/suggestive evidence of
an association'' between herbicide exposure and spina bifida in the
offspring of Vietnam veterans.
Since VA did not have the statutory authority to provide benefits
to children of veterans based on birth defects, the Secretary announced
on May 28, 1996, that he would seek legislation to provide an
appropriate remedy and submitted proposed legislation to Congress in
July of that year. Section 421 of Public Law 104-204 added a new
chapter 18 to title 38, United States Code, authorizing VA to provide
certain benefits, including a monthly monetary allowance, to children
born with spina bifida who are the natural children of veterans who
served in the Republic of Vietnam during the Vietnam era. This document
amends existing VA adjudication regulations and adds a new section to
title 38, Code of Federal Regulations, to implement this new authority.
Section 1805(c) of title 38, United States Code, specifies 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.
Section 1806 of title 38, United States Code, provides that the
effective date of the monetary allowance to a child under new chapter
18 will be fixed in accordance with the facts found, but will not be
earlier than the date of receipt of application. The effective date of
section 421 of Public Law 104-204 will be October 1, 1997, unless other
legislation is enacted to provide for an earlier effective date. VA is
proposing to amend 38 CFR 3.403 to reflect these statutory provisions.
VA is also proposing to amend 38 CFR 3.503 to specify that this
monetary allowance will terminate the last day of the month before the
month in which the death of a child occurs. This date is consistent
with the termination provisions of 38 U.S.C. 5112(b) applicable to
compensation, pension, and dependency and indemnity compensation
benefits administered by VA, and there is no indication in the statute
that Congress intended that VA administer this benefit in any different
manner. Due to the amendments to 38 CFR 3.403 and 3.503, we are
proposing technical amendments to each cross-reference following 38 CFR
3.57, 3.659, 3.703, 3.707, and 3.807.
VA is also proposing to amend 38 CFR 3.105 to specify that, where
there is a change in disability status warranting a reduction of the
monetary allowance, such reduction in evaluation will be effective the
last day of the month following sixty days from the date of notice to
the recipient (at the recipient's last address of record) of the
contemplated reduction. This is the date stipulated by 38 U.S.C.
5112(b)(6) for reduction of disability compensation benefits under the
same circumstances. We are not, however, proposing to incorporate an
additional 60-day notice such as that provided before reductions of
compensation awards under the provisions of 38 CFR 3.105(e). Since
reduction of this monetary allowance would generally be based on
private medical evidence that the claimant had authorized to be
released to VA, and since the rating criteria for this benefit are
generally less complex than those for rating compensation claims, in
our judgment, 60 days is enough time for claimants to submit evidence
showing that the monthly allowance should not be reduced. We are
proposing to apply the provisions of 38 CFR 3.105(h) concerning the
opportunity for a predetermination hearing to reductions of this
monetary allowance.
Section 3.158 of title 38, Code of Federal Regulations, describes
the circumstances under which VA will consider a claim abandoned. Where
evidence requested in connection with a claim is not furnished within
one year after the date of request, the claim will be considered
abandoned and further action will not be taken unless a new claim is
received. Should entitlement be established on the basis of this new
claim, benefits are awarded effective not earlier than the date of the
filing of the new claim. Where benefit payments have been discontinued
because a payee's present whereabouts are unknown, payments will be
resumed effective the day following the date of last payment if
entitlement is otherwise established, upon receipt of a valid current
address. In view of the similarity between this benefit and other
monetary benefits which VA
[[Page 23725]]
administers, and, in order to maintain consistency with respect to the
administration of these benefits, we believe it is appropriate to apply
these provisions to the monetary monthly allowance for children with
spina bifida, and we are proposing to amend 38 CFR 3.158 accordingly.
Pursuant to 38 U.S.C. 1805(b)(3), the amount of the monthly
monetary allowance payable to a child with spina bifida will be $200,
$700, or $1,200, based on the individual's degree of disability.
Section 1805(b)(3) also specifies that 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 38 CFR 3.27
to reflect that statutory provision.
We propose to add a new Sec. 3.814 to title 38, Code of Federal
Regulations, to implement additional provisions of 38 U.S.C. 1805. If a
child with spina bifida is the natural child of two Vietnam veterans,
new Sec. 3.814 would make clear that that child may receive only one
monthly allowance. This limitation is consistent with the provision of
38 U.S.C. 5304(a)(1) that limits a person to not more than one award of
pension, compensation, emergency officers, regular or reserve
retirement pay based on his or her own service. Such a limit is
appropriate in this instance because a child establishes entitlement to
this benefit in his or her own right due to being afflicted with spina
bifida, and awarding more than one monthly allowance based on the
existence of the same disability would constitute a duplication of
benefits similar to that prohibited by 38 U.S.C. 5304(a)(1).
We propose to require an applicant for the monetary allowance to
furnish certain information contained on a VA form entitled
``Application for Spina Bifida Benefits'' which is set forth in full in
the text portion of proposed Sec. 3.814(b). The information requested
is necessary for making determinations regarding eligibility for
monetary allowances. Furnishing the Social Security numbers of the
natural parent(s) and the child on whose behalf benefits are sought is
not mandatory, given the absence, under current law, of statutory
authority that would authorize VA to require this information.
Nevertheless, voluntary submission of such Social Security numbers
would be helpful to VA in establishing an individual's eligibility for
the monetary allowance authorized by law. VA would use the Social
Security numbers to: (1) Verify that the child's natural parent was a
veteran who served in Vietnam during the specified period; (2) identify
medical records; and (3) ensure that awards to deceased beneficiaries
are terminated in a timely manner to avoid creation of overpayments.
The term ``Vietnam veteran'' is defined by the statute as a veteran
who performed active military, naval, or air service in the Republic of
Vietnam during the Vietnam era. We propose to adopt the statutory
language for purposes of new Sec. 3.814. We also propose to define the
term service in the Republic of Vietnam to include service in the
waters offshore and service in other locations if the conditions of
service involved duty or visitation in the Republic of Vietnam. This is
consistent with the definition of service in the Republic of Vietnam
that appears at 38 CFR 3.307(a)(6)(iii), which sets forth the
conditions under which VA presumes that Vietnam veterans were exposed
to a herbicide agent during active military service. Since the purpose
of this rulemaking is to provide for payment to the children of those
same veterans if the children are born with spina bifida, it is
appropriate to recognize the same area in which veterans are presumed
to have been exposed to herbicides.
The statute defines the term ``child'' as meaning a natural child
of a Vietnam veteran, regardless of age or marital status, who was
conceived after the date on which the veteran first entered the
Republic of Vietnam during the Vietnam era. In general, the statutes
authorizing VA benefits recognize a legitimate child, a legally adopted
child, a stepchild who is a member of the veteran's household, or an
illegitimate child either acknowledged in writing by the veteran or
judicially decreed to be the child of the veteran, as the child of the
veteran (See 38 U.S.C. 101(4)(A)). 38 U.S.C. 1801, however, establishes
a stricter requirement; in order to be eligible for this benefit a
child must be the natural child of a Vietnam veteran. We therefore
propose to require that, in order to establish entitlement to this
benefit, a claimant must provide the types of evidence specified in 38
CFR 3.209 and 3.210 sufficient to demonstrate, in the judgment of the
Secretary, that the child on whose behalf benefits are sought is the
natural child of a Vietnam veteran.
38 U.S.C. 1805 (b) authorizes VA to make monthly payments at one of
three levels based on the degree of disability suffered by the child,
as determined in accordance with a schedule for rating such
disabilities to be prescribed by the Secretary. Spina bifida is a
developmental anomaly characterized by defective closure of the bony
encasement of the spinal cord, through which the cord (myelocele),
meninges (meningocele), or both (meningomyelocele) may (spina bifida
cystica) or may not (spina bifida occulta) protrude (Dorland's
Illustrated Medical Dictionary, 27th ed. 1988, 1560, and The Merck
Manual, 16th ed. 1992, 2077). Neurological deficit is the main
determinant of disability for an individual with spina bifida (Long-
term Outcome in Surgically Treated Spina Bifida Cystica, Isao Date,
M.D., Yasunori Yagyu, M.D., Shoji Asari, M.D., and Takshi Ohmoto, M.D.,
Surg. Neurol. 1993, 40:471-5). In our judgment, the neurological
manifestations that best define the severity of disability are
impairment of: Functioning of the extremities; bowel or bladder
function; and intellectual functioning.
We propose to designate levels of disability identified as Level I,
II, or III, based on an assessment of these neurologic manifestations
in eligible individuals. Each of these neurologic manifestations
exhibits three clearly identifiable levels of impairment that can be
used in determining levels of payment. Functioning of the lower
extremities can be assessed from least to most impaired based on (1)
the ability to walk without braces or other external support; (2) the
ability to walk only with braces or other external support; or (3) the
inability to walk. Functioning of the upper extremities can be assessed
from least to most impaired based on (1) absence of sensory or motor
impairment; (2) existence of sensory or motor impairment not precluding
the ability to grasp a pen, feed one's self, perform self care; and (3)
existence of sensory or motor impairment severe enough to preclude the
ability to grasp a pen, feed one's self, or perform self care. Bowel or
bladder function can be assessed from least to most impaired based upon
whether an individual is (1) continent of urine and feces; (2) requires
drugs or mechanical means to maintain proper bladder or bowel function;
or (3) is completely incontinent of urine or feces.
Intellectual function is ordinarily assessed through the use of any
of several standardized tests that determine the intelligence quotient
(I.Q.). The average or normal I.Q. range is generally considered to be
90 to 110 (``Comprehensive Textbook of Psychiatry'' 497 (Harold I.
Kaplan, M.D., and Benjamin J. Sadock, M.D., eds., 5th ed. 1989)). The
American Association of Mental Deficiency considers an I.Q. of 69 or
less to indicate mental retardation. Between these ranges falls an
intermediate group with an I.Q. between 70 and 89, considered to be in
the range
[[Page 23726]]
of dull-normal to borderline mental retardation.
Section 1805(a) authorizes VA to pay a monetary allowance for any
disability resulting from spina bifida. We have concluded that any
person who has spina bifida, other than spina bifida occulta, suffers
some degree of disability. Accordingly, we propose to rate individuals
suffering from spina bifida at Level I (the lowest level of disability)
if they are able to walk without braces or other external support
(although gait may be impaired), have no motor or sensory impairment of
the upper extremities, have an I.Q. of 90 or higher, and are continent
of urine and feces. Provided that none of their disabilities due to
spina bifida are severe enough to meet the requirements of Level III,
we propose to rate individuals at Level II (the intermediate level of
disability) if they are ambulatory, but only with braces or other
external support; or, if they have motor or sensory impairment of the
upper extremities but are able to grasp a pen, feed themselves, and
perform self care; or, if they have an I.Q. between 70 and 89; or, if
they require drugs or intermittent catheterization to maintain proper
urinary bladder function, or mechanisms for proper bowel function. We
propose to rate individuals at Level III (the highest level of
disability) if they are unable to ambulate; or, if they have motor or
sensory impairment of the upper extremities severe enough to preclude
grasping a pen, self-care or self-feeding; or, if they have an I.Q. of
69 or less; or, if they are completely incontinent of urine or feces.
For a child with spina bifida to be evaluated at Level I, each of any
existing neurological disabilities would have to fall into the least
impaired range described above. If at least one of the claimant's
neurological impairments falls into the middle range, the individual
would be rated at Level II. Furthermore, if at least one of the
disabilities falls into the highest level of impairment, the individual
would be rated at Level III.
Children who are less than one year of age, regardless of whether
they suffer from spina bifida, are essentially helpless, incontinent,
unable to walk, and too young for I.Q. to be measured. Therefore, the
above-noted criteria we are proposing are not readily applicable as
determinants of disability at that age. We therefore propose that
children under the age of one be rated at Level I, unless a pediatric
neurologist certifies that, in his or her medical judgment, there is a
neurological deficit present that will prevent the child from
ambulating, grasping a pen, performing self-care, or feeding him or
herself because of sensory or motor impairment of the upper
extremities, or that will make it impossible for the child to achieve
urinary or fecal continence. In our judgment, pediatric neurologists
are the only physicians with the expertise in this highly specialized
area necessary to assess neurological deficits and their likely
prognosis in children under the age of one. If such a deficit is
present, we propose that the child be rated at Level III. We also
propose to require that VA reassess the level of disability in each
child at the age of one year, at which time the effects of spina bifida
can more readily be determined.
In some cases, symptoms due to spina bifida do not become manifest
for several years. Even if the limbs initially appear totally
paralyzed, early training and the use of appliances may allow
ambulation in childhood (Brain's Diseases of the Nervous System,
revised by John N. Walton, M.D., D.Sc., F.R.C.P., 8th ed., 1977, 777).
However, children with lesions at the second lumbar level or higher,
even if they become ambulatory in childhood, usually will require
wheelchairs in the teenage period. Despite initial bowel or bladder
incontinence, most older children, with training and the use of
medication or appliances, are able to achieve continence (Diseases of
the Nervous System, Arthur K. Asbury, M.D., Guy M. McKhann, M.D., and
W. Ian McDonald, Ph.D., F.R.C.P., eds., 1986, 712).
VA will reassess the level of disability due to spina bifida
whenever it receives medical evidence indicating that a change is
warranted. Nevertheless, we propose to require that VA reassess the
level of disability due to spina bifida at intervals of not more than
five years until the child has reached the age of 21. Required
reassessments will assure that the appropriate level of disability is
assigned during the period of time when changes in the disabling
effects of spina bifida are most likely to occur. Thereafter, we
propose to reassess the level of disability only if we receive medical
evidence indicating a material change in the level of disability or
that the current rating may be incorrect. By the time a child is age
21, the condition has generally stabilized and, in our judgment,
required reassessments beyond that age will no longer be necessary.
Because VA medical facilities generally provide examination and
care only to veterans, VA lacks pediatric examiners, pediatric
neurologists, and other pediatric specialists who might participate in
the evaluation and care of children with spina bifida. We therefore
propose to accept statements from private physicians, as well as
examination reports from government or private institutions, for the
purpose of rating spina bifida claims without further examination,
provided they are adequate to permit the evaluation of the effects of
spina bifida under the criteria proposed above. Because of the critical
need to obtain this information in order to assure assignment of an
appropriate rating level, we propose to require that individuals
seeking or receiving benefits under this provision authorize the
release of pertinent medical records to VA and that children for whom
VA schedules an examination, whether at a VA facility or by a private
health-care provider under contract, report for that examination.
Individuals who fail to authorize the release of pertinent medical
records or fail to report for examination would be rated at Level I.
Paperwork Reduction Act of 1995
The Office of Management and Budget (OMB) has determined that
proposed 38 CFR 3.814 would contain collections of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Accordingly,
under section 3507(d) of the Act, VA has submitted a copy of this
rulemaking action to OMB for its review of the collections of
information.
OMB assigns a control number for each collection of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
Comments on the proposed collections of information should be
submitted to the Office of Management and Budget, Attention: Desk
Officer for the Department of Veterans Affairs, Office of Information
and Regulatory Affairs, Washington, DC 20503, with copies mailed or
hand-delivered to: Director, Office of Regulations Management (02D),
Department of Veterans Affairs, 810 Vermont Ave., NW, Room 1154,
Washington, DC 20420. Comments should indicate that they are submitted
in response to ``RIN 2900-AI70.''
Title: Application for Benefits Eligibility.
Summary of collection of information: The provisions of proposed 38
CFR 3.814 would require applicants for the monetary allowance to submit
certain personal identifying information of the child and natural
parents, medical status of the child, veteran status of the natural
parents, and incompetency details (if applicable and the child is over
18 years old). The types of evidence specified in Secs. 3.209 and 3.210
[[Page 23727]]
would be sufficient to establish that a child is the natural child of a
Vietnam veteran.
Description of the need for information and proposed use of
information: VA needs the information to determine eligibility for
obtaining the monetary allowance and the appropriate level of payment.
Although submission of Social Security numbers is not mandatory,
pending the enactment of specific legislation, VA would use the Social
Security numbers to: (1) Verify that the child's natural parent was a
veteran who served in Vietnam during the specified period; (2) identify
medical records; and (3) ensure that awards to deceased beneficiaries
are terminated in a timely manner to avoid creation of overpayments.
Description of likely respondents: Individuals seeking the monetary
allowance for a child born with spina bifida who is a child of a
Vietnam veteran.
Estimated number of respondents: 600-2,000.
Estimated frequency of responses: 1.
Estimated total annual reporting and recordkeeping burden: 335
hours.
Estimated annual burden per collection: 10 minutes.
Title: Acceptance of Released Statements from Private Physicians or
Institutions for the Purpose of Evaluating Spina Bifida Claims.
Summary of collection of information: The provisions of the
proposed 38 CFR 3.814(d) would permit VA to accept statements from
private physicians, as well as examination reports from government or
private institutions, for the purpose of evaluating spina bifida claims
without VA examination provided that they are adequate to evaluate the
effects of spina bifida under the criteria proposed in the regulation,
and would require individuals seeking the monetary allowance to
authorize the release of pertinent medical records to VA.
Description of the need for information and proposed use of
information: Because VA medical facilities generally provide
examination and care only to veterans, VA lacks pediatric examiners,
pediatric neurologists, and other pediatric specialists who might
participate in the evaluation of children with spina bifida.
Description of likely respondents: Individuals seeking the monetary
allowance for a child born with spina bifida who is a child of a
Vietnam veteran.
Estimated number of respondents: 600-2,000.
Estimated frequency of responses: 1.
Estimated total annual reporting and recordkeeping burden: 335
hours.
Estimated annual burden per collection: 10 minutes.
The Department considers comments by the public on proposed
collections of information in--
Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collections of information on
those who are to respond, including responses through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
OMB is required to make a decision concerning the collection of
information contained in this proposed rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment on the proposed regulations.
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 these
amendments would not directly affect any small entities. Only VA
beneficiaries 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.
There is no Catalog of Federal Domestic Assistance program number
for this benefit.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans, Vietnam.
Approved: March 21, 1997.
Jesse Brown,
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 Sec. 3.27, paragraph (c) is redesignated as paragraph (d), a
new paragraph (c) is added, and newly redesignated paragraph (d) and
its authority citation are revised to read as follows:
Sec. 3.27 Automatic adjustment of benefit rates.
* * * * *
(c) Monetary allowance under 38 U.S.C. 1805 for a child born with
spina bifida who is a child of a Vietnam veteran. 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. 1805 for a child born with spina
bifida who is a child of a Vietnam veteran.
(Authority: 38 U.S.C. 1805(b)(3))
(d) Publishing requirements. Increases in pension rates, parents'
dependency and indemnity compensation rates and income limitation, and
the monthly allowance under 38 U.S.C. 1805 for a child born with spina
bifida made under this section shall be published in the Federal
Register.
(Authority: 38 U.S.C. 5312(c)(1), 1805(b)(3))
3. In Sec. 3.105, paragraphs (g) and (h) are redesignated as
paragraphs (h) and (i), respectively; in paragraphs (d), (e), (f) and
newly redesignated paragraph (h) remove ``paragraph (h)'' each time it
appears and add, in its place, ``paragraph (i)''; in newly redesignated
paragraph (i)(1) remove ``paragraphs (d) through (g)'' and add, in its
place, ``paragraphs (d) through (h)''; in newly redesignated paragraph
(i)(2) introductory text, remove ``paragraph (d), (e), (f) or (g)'' and
add, in its place, ``paragraph (d), (e), (f), (g) or (h)''; in newly
redesignated paragraph (i)(2)(ii) remove ``paragraph (f)'' and add, in
its place, ``paragraphs (f) and (g)''; in newly
[[Page 23728]]
redesignated paragraph (i)(2)(iii) remove ``paragraph (g)'' and add, in
its place, ``paragraph (h)''; and add a new paragraph (g) to read as
follows:
Sec. 3.105 Revision of decisions.
* * * * *
(g) Reduction in evaluation--monetary allowance to a child with
spina bifida under 38 U.S.C. 1805. Where a change in disability level
warrants a reduction of the monthly allowance currently being made, a
rating proposing the reduction will be prepared setting forth all
material facts and reasons. The beneficiary will be notified at his or
her latest address of record of the contemplated action and furnished
detailed reasons therefor, and will be given 60 days for the
presentation of additional evidence to show that the monthly allowance
should be continued at the present level. Unless otherwise provided in
paragraph (i) of this section, if additional evidence is not received
within that period, final rating action will be taken and the award
will be reduced effective the last day of the month following sixty
days from the date of notice to the payee of the proposed reduction.
(Authority: 38 U.S.C. 501)
* * * * *
Sec. 3.158 [Amended]
4. In Sec. 3.158, paragraphs (a) and (c) are amended by removing
``or dependency and indemnity compensation'' and adding, in its place,
``dependency and indemnity compensation, or monetary allowance under
the provisions of 38 U.S.C. 1805''.
5. In Sec. 3.261, paragraph (a)(40) is added to read as follows:
Sec. 3.261 Character of income; exclusions and estates.
* * * * *
(a) * * *
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Pension; old-law (veterans, Pension; section 306
Income Dependency (parents) Dependency and indemnity surviving spouses and (veterans, surviving spouses See
compensation (parents) children) and children)
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(40) Monetary allowance under 38 Excluded...................... Excluded...................... Excluded..................... Excluded..................... Sec. 3.262(y)
U.S.C. 1805 for children born with
spina bifida who are children of
Vietnam Veterans.
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* * * * *
6. In Sec. 3.262, paragraph (y) is added to read as follows:
Sec. 3.262 Exclusions of income.
* * * * *
(y) Monetary allowance under 38 U.S.C. 1805 for a child born with
spina bifida who is a child of a Vietnam veteran. There shall be
excluded from income computation any allowance paid under the
provisions of 38 U.S.C. 1805 to a child born with spina bifida who is
the child of a Vietnam veteran.
(Authority: 38 U.S.C. 1805(d))
7. In Sec. 3.263, paragraph (g) is added to read as follows:
Sec. 3.263 Corpus of estate; net worth.
* * * * *
(g) Monetary allowance under 38 U.S.C. 1805 for a child born with
spina bifida who is a child of a Vietnam veteran. There shall be
excluded from the corpus of estate or net worth of a claimant any
allowance paid under the provisions of 38 U.S.C. 1805 to a child born
with spina bifida who is the child of a Vietnam veteran.
(Authority: 38 U.S.C. 1805(d))
8. In Sec. 3.272, paragraph (u) is added to read as follows:
Sec. 3.272 Exclusions from income.
* * * * *
(u) Monetary allowance under 38 U.S.C. 1805 for a child born with
spina bifida who is a child of a Vietnam veteran. Any allowance paid
under the provisions of 38 U.S.C. 1805 to a child born with spina
bifida who is the child of a Vietnam veteran.
(Authority: 38 U.S.C. 1805(d))
9. In Sec. 3.275, paragraph (i) is added to read as follows:
Sec. 3.275 Criteria for evaluating net worth.
* * * * *
(i) Monetary allowance under 38 U.S.C. 1805 for a child born with
spina bifida who is a child of a Vietnam veteran. There shall be
excluded from the corpus of estate or net worth of a claimant any
allowance paid under the provisions of 38 U.S.C. 1805 to a child born
with spina bifida who is the child of a Vietnam veteran.
(Authority: 38 U.S.C. 1805(d))
10. In Sec. 3.403, the introductory text and paragraphs (a)-(e) are
redesignated as paragraphs (a), and (a)(1)-(a)(5), respectively, and
paragraph (b) is added to read as follows:
Sec. 3.403 Children.
* * * * *
(b) Monetary allowance under 38 U.S.C. 1805 for a child born with
spina bifida who is a child of a Vietnam veteran (Sec. 3.814). An award
of the monetary allowance under 38 U.S.C. 1805 to a child with spina
bifida who is the child of a Vietnam veteran will be either date of
birth if claim is received within one year of that date, or date of
claim, but not earlier than October 1, 1997.
(Authority: 38 U.S.C. 1806, 5110(n); sec. 422(c), Pub. L. 104-204,
110 Stat. 2926)
11. In Sec. 3.503, the introductory text and paragraphs (a)-(j) are
redesignated as paragraphs (a), and (a)(1)-(a)(10), respectively, and
paragraph (b) is added to read as follows:
Sec. 3.503 Children.
* * * * *
(b) Monetary allowance under 38 U.S.C. 1805 for a child born with
spina bifida who is a child of a Vietnam veteran (Sec. 3.814). The
effective date of discontinuance of the monthly allowance under 38
U.S.C. 1805 to a child with spina bifida who is the child of a Vietnam
veteran will be the last day of the month before the month in which the
death of the child occurred.
(Authority: 38 U.S.C. 501)
12. Section 3.814 is added to read as follows:
Sec. 3.814 Monetary allowance under 38 U.S.C. 1805 for a child born
with spina bifida who is a child of a Vietnam veteran.
(a) VA shall pay a monthly allowance based upon the level of
disability determined under the provisions of paragraph (c) of this
section to or for a child born with spina bifida who is a child of a
Vietnam veteran. Receipt of this allowance shall not affect the right
of the child, or the right of any individual based on the child's
relationship to that individual, to receive any other benefit to which
the child, or that individual, may be entitled under any law
administered by VA. If a child with spina bifida is the natural child
of two Vietnam veterans,
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he or she is entitled to only one monthly allowance under this section.
(b) Applicants for the monetary allowance under this section must
submit an application to the VA regional office and include the
information mandated on the following VA form entitled ``Application
for Spina Bifida Benefits'':
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(c) Definitions.
(1) Vietnam veteran. For the purposes of this section, the term
``Vietnam veteran'' means a veteran who performed active military,
naval, or air service in the Republic of Vietnam during the Vietnam
era. Service in the Republic of Vietnam includes service in the waters
offshore and service in other locations if the conditions of service
involved duty or visitation in the Republic of Vietnam.
(2) Child. For the purposes of this section, the term ``child''
means a natural child of a Vietnam veteran, regardless of age or
marital status, conceived after the date on which the veteran first
served in the Republic of Vietnam during the Vietnam era.
Notwithstanding the provisions of 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 a child is the natural
child of a Vietnam veteran.
(3) Spina bifida. For the purposes of this section, the term
``spina bifida'' means any form and manifestation of spina bifida
except spina bifida occulta.
(d)(1) Upon receipt of competent medical evidence that a child has
spina bifida, VA shall determine the level of disability suffered by
the child in accordance with the following criteria:
(i) Level I. The child is able to walk without braces or other
external support (although gait may be impaired), has no sensory or
motor impairment of upper extremities, has an IQ of 90 or higher, and
is continent of urine and feces.
(ii) Level II. Provided that none of the child's disabilities are
severe enough to be evaluated at Level III, and the child: is
ambulatory, but only with braces or other external support; or has
sensory or motor impairment of upper extremities, but is able to grasp
pen, feed self, and perform self care; or has an IQ of at least 70 but
less than 90; or requires drugs or intermittent catheterization or
other mechanical means to maintain proper urinary bladder function, or
mechanisms for proper bowel function.
(iii) Level III. The child is unable to ambulate; or has sensory or
motor impairment of upper extremities severe enough to prevent grasping
a pen, feeding self, and performing self care; or has an IQ of 69 or
less; or has complete urinary or fecal incontinence.
(2) Provided that they are adequate for assessing the level of
disability due to spina bifida under the provisions of paragraph (d)(1)
of this section, VA may accept statements from private physicians, or
examination reports from government or private institutions, for the
purpose of rating spina bifida claims without further examination. In
the absence of such information, VA will schedule an examination for
the purpose of assessing the level of disability.
(3) Unless or until VA is able to obtain medical evidence adequate
to assess the level of disability due to spina bifida, it will rate the
disability of a person eligible for this monetary allowance at no
higher than Level I.
(4) Children under the age of one year will be rated at Level I
unless a pediatric neurologist certifies that, in his or her medical
judgment, there is a neurological deficit that will prevent the child
from ambulating; from grasping a pen, feeding him or herself, or
performing self care; or from achieving urinary or fecal continence. If
such a deficit is present, the child will be rated at Level III. VA
will reassess the level of disability of each child to which this
provision is applied at the age of one year.
(5) VA will reassess the level of disability due to spina bifida
whenever it receives medical evidence indicating that a change is
warranted. For individuals between the ages of one and twenty-one,
however, it will reassess the level of disability at intervals of not
more than five years. Thereafter, it will reassess the level of
disability only if evidence indicates there has been a material change
in the level of disability or that the current rating may be incorrect.
(Authority: 38 U.S.C. 501, 1805)
13. The Cross-Reference following Sec. 3.57 is amended by removing
``Sec. 3.403(a)'' and ``Sec. 3.503(c)'' and adding, in their places,
``Sec. 3.403(a)(1)'' and ``Sec. 3.503(a)(3)'', respectively. Each
Cross-Reference following Secs. 3.659 and 3.703 is amended by removing
``Sec. 3.503(g)'' and adding, in its place, ``Sec. 3.503(a)(7)''. Each
Cross Reference following Secs. 3.707 and 3.807 is amended by removing
``Sec. 3.503(h)'' and adding, in its place, ``Sec. 3.503(a)(8)''.
[FR Doc. 97-11256 Filed 4-30-97; 8:45 am]
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