[Federal Register: July 24, 2009 (Volume 74, Number 141)]
[Proposed Rules]
[Page 36640-36648]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jy09-16]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3, 17, and 21
RIN 2900-AN27
Herbicide Exposure and Veterans With Covered Service in Korea
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
adjudication, medical, and vocational rehabilitation and employment
regulations to incorporate relevant provisions from the Veterans
Benefits Act of 2003. Specifically, this document proposes to amend
VA's regulations regarding herbicide exposure of certain veterans who
served in or near the Korean demilitarized zone and regulations
regarding spina bifida in their children. It also proposes to amend
VA's medical regulations by correcting the Health Administration
Center's hand-delivery address.
DATES: Comments must be received by VA on or before September 22, 2009.
ADDRESSES: Written comments may be submitted through http://
www.Regulations.gov; by mail or hand-delivery to the Office of General
Counsel (02REG), Department of Veterans Affairs, 810 Vermont Ave., NW.,
Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments
should indicate that they are submitted in response to ``RIN 2900-
AN27--Herbicide Exposure and Veterans with Covered Service in Korea.''
Copies of comments received will be available for public inspection in
the Office of General Counsel, Room 1063B, between the hours of 8 a.m.
and 4:30 p.m., Monday through Friday (except holidays). Please call
(202) 461-4902 for an appointment. (This is not a toll-free number.) In
addition, during the comment period, comments may be viewed online
through the Federal Docket Management System (FDMS) at http://
www.Regulations.gov.
[[Page 36641]]
FOR FURTHER INFORMATION CONTACT: For information on the provisions
regarding monetary allowance, contact Thomas Kniffen, Chief,
Regulations Staff (211D), Compensation and Pension Service, Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Avenue, NW., Washington, DC 20420, (202) 461-9725; for information on
the provisions regarding health care benefits, contact Richard M.
Trabert, Policy Management Division, VA Health Administration Center,
P.O. Box 469065, Denver, CO 80246-9065, (303) 331-7549; for information
regarding provisions on vocational rehabilitation and employment,
contact Alvin Bauman, Senior Policy Analyst, Vocational Rehabilitation
and Employment Service (28), Veterans Benefits Administration,
Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC
20420, (202) 461-9613. (These are not toll-free numbers.)
SUPPLEMENTARY INFORMATION: The Veterans Benefits Act of 2003, Public
Law 108-183, amended sections of Title 38 of the United States Code,
which address veterans' benefits law. To ensure compliance with
statutory changes, VA proposes to amend its regulations pertaining to
benefits based on herbicide exposure to include veterans who served in
or near the Korean demilitarized zone (DMZ) during certain periods and
children of such veterans born with spina bifida.
I. Herbicide Exposure
Section 102 of the Veterans Benefits Act of 2003 amended 38 U.S.C.
chapter 18 to provide benefits (health care, monetary allowance,
vocational training, and education) for spina bifida in children of
certain veterans who served in Korea. The statutory provisions,
codified at 38 U.S.C. 1821, apply to the children of veterans who are
determined by VA, in consultation with the Secretary of Defense, to
have been exposed to an herbicide agent during that service. Section
1821 describes parameters governing the time and location of a
veteran's service that may result in a child's eligibility for
benefits. Section 1821 further provides that VA will consult with the
Secretary of Defense to determine whether herbicide exposure occurred
within those prescribed time periods and geographic parameters. The
statutory provisions apply to all forms and manifestations of spina
bifida, except spina bifida occulta.
The statutory change at 38 U.S.C. 1821 authorizes recognition of
herbicide exposure for ``certain Korea service veterans'' for purposes
of providing benefits to a child born to them with spina bifida. Under
the statute, those veterans must have served ``in or near'' the Korean
DMZ as determined by VA in consultation with the Department of Defense
(DoD) between September 1, 1967, and August 31, 1971, and must be found
by VA, in consultation with DoD, to have been exposed to an herbicide
agent during such service. Even if a veteran served in or near the DMZ
within the specified time period, the statute requires VA to determine
whether the veteran was exposed to herbicides during such service.
Accordingly, the statute does not establish or require VA to establish
a presumption of herbicide exposure based on service in or near the
Korean DMZ. However, we believe that the statute, along with VA's
general authority under 38 U.S.C. 501 to establish all necessary and
appropriate regulations, provides VA with authority to establish
presumptions of exposure where a reasonable basis exists for such
presumptions. As explained below, VA proposes to presume herbicide
exposure for certain veterans who served within the time periods and
geographic locations described by the statute.
To implement the requirements of the statute, VA consulted with DoD
regarding the times and locations of herbicide use in or near the
Korean DMZ. The Korean demilitarized zone (DMZ) is a strip of land
running across the Korean Peninsula that separates North Korea from
South Korea and serves as a buffer zone between the two countries. The
DMZ cuts the Korean Peninsula roughly in half following the geographic
38th parallel north latitude and is approximately 155 miles long and
2.5 miles wide. It became a de facto border following World War II as
the demarcation line between the northern Soviet-controlled Democratic
People's Republic of Korea and the southern United Nations-controlled
Republic of Korea. When an attacking North Korean military force
crossed the DMZ on June 25, 1950, United States and United Nations
troops came to the aid of South Korea and the Korean War commenced. A
ceasefire agreement was signed on July 27, 1953, which established the
current DMZ buffer zone between North and South Korea. No peace treaty
was ever signed and the two Koreas remain technically at war. The
United States established a permanent contingent of troops on the DMZ
to support South Korea. As military involvement in Vietnam escalated
during the late 1960s, tensions along the DMZ increased and additional
United States troops were sent to South Korea. Sporadic combat between
the opposing forces occurred, primarily within the DMZ buffer zone.
Following the Vietnam era, tensions decreased between the two Koreas,
but the DMZ remains the most heavily armed border area in the world.
DoD has advised that herbicides were not applied within the DMZ,
but were applied in some adjacent areas. Specifically, DoD has reported
that herbicides were applied between April 1968 and July 1969 along a
strip of land 151 miles long and up to 350 yards wide along the
southern edge of the DMZ north of the civilian control line. The
herbicide agents were applied through hand spraying and hand
distribution of pelletized herbicides. There was no aerial spraying.
DoD also has provided VA a list of the military units that are
currently known to have operated in that area during the period that
herbicides were applied.
Based on this information, we propose to presume herbicide exposure
for any veteran who served between April 1968 and July 1969 in a unit
determined by VA and DoD to have operated in an area in or near the
Korean DMZ in which herbicides were applied.
There is no record that herbicide agents were sprayed in the DMZ
itself. Nevertheless, we propose to include the word ``in'' before ``or
near'' in these regulations, for two reasons. First, we want to ensure
that our regulations are consistent with Sec. 1821, as amended.
Second, if evidence arises in the future indicating that herbicide
agents were applied in the DMZ, this rule would allow VA to provide
benefits without having to amend its regulations.
The criterion we propose to use for purposes of the presumption of
exposure is that the veteran was assigned to a particular listed
military unit within the prescribed time frame. Recognition of being
exposed to herbicides ``in or near'' the DMZ, for an individual
veteran, is based on service in one of the particular units
acknowledged by DoD and VA as having performed missions near the DMZ
during the period herbicides were used (April 1968 through July 1969).
These units were assigned or rotated to areas near the DMZ during that
time period. These included Infantry, Armor, and Artillery units.
Because DoD and VA may recognize additional units in the future based
on additional information or evidence, we will not list the units in
the regulation. VA has provided a list of currently recognized units to
VA adjudicators in VA's procedural manual as an administrative
reference. Additionally, if a veteran asserts that he or she was in or
near the DMZ during
[[Page 36642]]
the specified time period and VA has not already determined the
veteran's unit to be one that was in or near the DMZ sometime between
April 1, 1968, and July 31, 1969, VA will develop further evidence to
verify that assertion.
The specific units that DoD identified that served in areas along
the DMZ in Korea where herbicides were used between April 1968 and July
1969 are: Combat Brigades of the 2nd and 7th Infantry Divisions: 1st
Battalion, 9th Infantry; 2nd Battalion, 9th Infantry; 1st Battalion,
17th Infantry; 2nd Battalion, 17th Infantry; 1st Battalion, 23rd
Infantry; 2nd Battalion, 23rd Infantry; 3rd Battalion, 23rd Infantry;
1st Battalion, 31st Infantry; 2nd Battalion, 31st Infantry; 1st
Battalion, 32nd Infantry; 2nd Battalion, 32nd Infantry; 3rd Battalion,
32nd Infantry; 1st Battalion, 38th Infantry; 2nd Battalion, 38th
Infantry; 4th Battalion, 7th Cavalry; 2nd Battalion, 10th Cavalry; 1st
Battalion, 72nd Armor; 2nd Battalion, 72nd Armor; 1st Battalion, 12th
Artillery; 1st Battalion, 15th Artillery; 7th Battalion, 17th
Artillery; 6th Battalion, 37th Artillery; 5th Battalion, 38th
Artillery.
Service records may show that the above units were assigned to
either the 2nd or 7th Infantry Division.
Additional units: 13th Engineer Battalion; United Nations Command
Security Battalion-Joint Security Area (UNCSB-JSA); Crew of the USS
Pueblo.
If a veteran served in or near the Korean DMZ during the period
between September 1, 1967, and August 31, 1971, but not within the time
periods and geographic locations that would qualify for a presumption
of exposure under this proposed rule, such service would qualify for
benefits under 38 U.S.C. 1821 only if VA determines that the veteran
was actually exposed to herbicides during such service. Based on the
information provided by DoD to date, it appears unlikely that exposure
would have occurred outside the dates and locations that would be
covered by the presumption of exposure under this proposed rule.
Nonetheless, the proposed rule would incorporate the statutory
provisions in section 1821 in order to make clear that the presumption
of exposure does not foreclose claims based on other service that is
within the dates and locations covered by the statute.
Currently, 38 CFR 3.814 specifies the criteria for eligibility for
a monetary allowance to children of Vietnam veterans who are suffering
from spina bifida. Regulations in parts 17 and 21 of title 38, Code of
Federal Regulations, authorize health care and vocational
rehabilitation and training to individuals who meet the eligibility
requirements of Sec. 3.814. We propose to revise Sec. 3.814 to
provide criteria for eligibility for children of veterans with covered
service in Korea who are suffering from spina bifida. As explained
above, we propose to define ``covered service in Korea'' consistent
with the statutory criteria set forth in 38 U.S.C. 1821(c), requiring
that the veterans have served in or near the Korean DMZ between
September 1, 1967, and August 21, 1971, and have been determined by VA,
in consultation with DoD, to have been exposed to an herbicide agent
during such service. To implement the proposed presumption of exposure
discussed above, we propose to state that exposure to an herbicide
agent will be conceded if the veteran served between April 1, 1968, and
July 31, 1969, in a unit determined by VA and DoD to have operated in
the area where herbicides are known to have been applied during that
period.
Section 3.307 is VA's regulation regarding presumptive service
connection for purposes of disability compensation to veterans and
dependency and indemnity compensation to their survivors. We propose to
add at new Sec. 3.307(a)(6)(iv) a presumption of herbicide exposure
based on service in or near the Korean DMZ identical to the presumption
proposed for purposes of benefits to a veteran's child under 38 U.S.C.
1821. Because VA is providing statutorily authorized benefits to
children with spina bifida of such veterans, we believe it is logical
and fair to provide benefits to these veterans themselves based on
their exposure to herbicide agents. We, therefore, propose that these
veterans be eligible for the presumption of exposure to herbicide
agents.
There is currently no specific statutory authority for providing a
presumption of exposure to herbicide agents to veterans who served in
Korea. However, such a presumption would comport with known facts and
congressional intent and is within VA's general rulemaking authority
under 38 U.S.C. 501. It would be illogical to conclude that the
children with spina bifida of the covered veterans have the disability
due to the veteran's exposure to herbicide agents, but not to presume
that the veteran himself was exposed to herbicide agents and merits VA
benefits for any disabilities associated with that exposure. We have
determined that the proposed presumption will be beneficial to veterans
and will promote fairness, consistency, and efficiency in VA decision
making.
II. Monetary Allowance
Spina Bifida Benefits
The statutory provisions regarding spina bifida at section 1821
state that the child should be provided a monetary allowance ``as if
such child of a veteran with covered service in Korea were a child of a
Vietnam veteran who is suffering from spina bifida under [subchapter I
of chapter 18].'' Section 1805 of title 38, United States Code,
authorizes a monthly monetary allowance to the child of a Vietnam
veteran suffering from spina bifida. The current regulation regarding
payment for an individual suffering from spina bifida under 38 U.S.C.
chapter 18, subchapter I, is 38 CFR 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. We propose to
amend the title of Sec. 3.814 to include the children of veterans of
covered service in Korea and amend Sec. 3.814(a) to include those
individuals suffering from spina bifida whose biological father or
mother had covered service in Korea. We propose to redesignate the
definitions in Sec. 3.814(c) to add a description of ``Covered service
in Korea'' in Sec. 3.814(c)(2). Section 3.814(c)(1) is the definition
of ``Vietnam veteran;'' therefore, it is logical to include covered
service in Korea as the next definition, (c)(2). We propose to
redesignate current Sec. 3.814(c)(2), ``Individual,'' and (c)(3),
``Spina bifida,'' as Sec. 3.814(c)(3) and (c)(4) respectively. Current
Sec. 3.814(c)(2), ``Individual,'' which we have proposed to
redesignate as Sec. 3.814(c)(3), refers to Vietnam veterans only. We
propose to amend redesignated Sec. 3.814(c)(3) by expanding the
language to include veterans with covered service in Korea.
Conforming Amendments
We also propose to amend several regulations that contain
references to benefits under 38 U.S.C. chapter 18 for children with
spina bifida of Vietnam veterans. We propose to amend these regulations
to include the children of veterans with covered service in Korea, so
that they are eligible for the same benefits as children of Vietnam
veterans. In the regulations related to benefits for spina bifida, we
will continue to use the language ``certain individuals who are
children of * * *'' as the statutes in chapter 18 refer to benefits for
``individuals'' and provide the definition that child refers to an
individual regardless of age or marital status. We, additionally, have
a similar definition in 38 CFR 3.814 and 3.815.
[[Page 36643]]
The regulations we are amending to conform with the amendments to
38 U.S.C. chapter 18 include: 38 CFR 3.27 (which addresses the
automatic adjustment of VA benefit rates); Sec. 3.29(c) (which
addresses rounding of VA benefit rates); Sec. 3.31 (which addresses
commencement of a period of payment); Sec. 3.105(g) (which covers
revision of decisions); Sec. 3.114(a) (which addresses the effective
date of certain awards based on a change of law or VA issue); Sec.
3.261(a)(40) (which covers character of income and whether the income
is included or excluded for VA dependency and pension purposes); Sec.
3.262(y) (which covers evaluation of income for VA dependency and
pension purposes); Sec. 3.263(g) (which addresses what is considered
in determining the corpus of an estate for VA dependency purposes and
the net worth of a veteran, surviving spouse, or child for VA pension
purposes); Sec. 3.272(u) (which addresses exclusions for countable
income for the purposes of determining entitlement to VA improved
pension); and Sec. 3.275(i) (which addresses the criteria for
evaluating net worth for the purposes of determining the corpus of
estate or net worth of a veteran, surviving spouse, or child for VA
pension purposes).
Title 38 CFR 3.403 addresses the effective date of awards of
benefits for children, including monetary allowances under 38 U.S.C.
chapter 18. Section 3.403(b) covers monetary allowances under 38 U.S.C.
1805 for an individual suffering from spina bifida who is a child of a
Vietnam veteran as specified in that statute and includes the effective
date of when these benefits were first available, October 1, 1997.
Section 3.403(c) covers monetary allowances under 38 U.S.C. 1815 for an
individual suffering from a covered birth defect who is a child of a
woman Vietnam veteran as specified in that statute and includes the
effective date when these benefits were first available, December 1,
2001. Therefore, we propose to add new Sec. 3.403(d), for children
covered under new section 1821. We will use the same general effective
date language as in Sec. 3.403(b) and (c), which follow VA's statute
addressing effective dates for benefits, 38 U.S.C. 5110, and we will
add that the award of benefits can be no earlier than the effective
date of the statute, December 16, 2003.
As discussed below, certain sections of section 5110 apply to
chapter 18 benefits, under 38 U.S.C. 1832(b). In relevant part, these
are as follows: section 5110(a) (describing the general effective date
rule, which is that an award is effective in accordance with facts
found, but not earlier than the date of receipt of application);
section 5110(b)(2) (noting that the effective date of an award for
increased compensation is the earliest date the increased disability
occurred, if the application is received within 1 year from such date);
and section 5110(i) (noting that the effective date for reopened claims
allowed on the basis of correction of military records will be the date
the application was filed for correction or the date the disallowed
claim was filed, whichever is later, but the retroactive benefits will
be no more than 1 year prior to the date of the reopened claim).
Not specifically applicable to chapter 18 benefits, but included in
Sec. 3.403(b) and (c), is section 5110(n), which states that the
effective date of the award of any benefits based on marriage, birth,
or adoption of a child, shall be the date of the event if proof of such
event is received by the Secretary within 1 year of the date of the
marriage, birth, or adoption. Since chapter 18 benefits are for
children, we presume it is the intent of the statutes that section
5110(n) applies for chapter 18 awards. Therefore, we propose to include
this relevant effective date provision in new Sec. 3.403(d) for awards
for children with spina bifida of veterans with covered service in
Korea, based on the wording of Sec. 3.403(c).
Unrelated to the provisions of the Veterans Benefits Act of 2003,
Public Law 108-183, we noted while preparing this rulemaking that
certain effective date provisions in Sec. 3.403(c) are not included in
Sec. 3.403(b), and we propose to correct these omissions here.
Therefore, we propose to amend Sec. 3.403(b) to add the relevant
provisions and to provide a reference to Sec. 3.814(e). We also
propose in new Sec. 3.403(d) to use language about effective dates
that VA uses in its effective date regulations, to be consistent with
those regulations. This regulatory language is plainer than the
statutory language; for example, we propose to use the term ``date
entitlement arose'' instead of the statutory language ``in accordance
with the facts found.'' Additionally, we noted that Sec. 3.814(e) does
not include the information regarding the effective date of birth, if
the claim is received within 1 year of that date. Therefore, we propose
to add it to be consistent with the other effective date provision for
children with birth defects (Sec. 3.815(i)).
Section 3.503(b) addresses the effective date of reduction and
discontinuance of monetary allowance under 38 U.S.C. chapter 18 for
certain individuals. We propose to amend it to add the children with
spina bifida of veterans with covered service in Korea.
Authority Citations
We, additionally, propose to use this rulemaking to revise several
authority citations in 38 CFR part 3 to chapter 18 sections that have
been repealed and redesignated. Public Law 106-149, the Veterans
Benefits and Health Care Improvement Act of 2000, November 1, 2000,
repealed 38 U.S.C. 1806. Section 1806 addressed effective dates for
chapter 18. This section was recodified by the Public Law at section
1822. Section 1822 provided that 38 U.S.C. 5110, regarding effective
dates, applies to chapter 18 benefits.
Subsequently, Public Law 108-183, which we are implementing in this
rulemaking, added new section 1821, and redesignated prior sections
1821, 1822, 1823, and 1824, as new sections 1831, 1832, 1833, and 1834,
respectively.
Therefore, we propose to remove the references to old section 1821
and replace them with a reference to section 1831; remove the
references to section 1822 and replace them with a reference to section
1832; remove the references to section 1823 and replace them with a
reference to section 1833; and remove the references to section 1824
and replace them with a reference to 1834 in the authority citations in
Sec. Sec. 3.31, 3.105, 3.114, 3.216, 3.261, 3.262, 3.263, 3.403,
3.503, 3.814, and 3.815 as applicable.
In addition, we propose to add references to new section 1821 in
the authority citations in Sec. Sec. 3.27, 3.29, 3.31, 3.105, 3.114,
3.307, 3.403, and 3.814 as applicable.
There is additionally an extraneous authority citation at the end
of 38 CFR 3.403, which reads, ``(Authority: 38 U.S.C. 1806, 5110(n);
sec. 422(c), Pub. L. 104-204, 110 Stat. 2926)''. For the following
reasons, we now propose to remove that citation. The citation to 38
U.S.C. 1806 is inappropriate because that section has been repealed.
The citation to 38 U.S.C. 5110(n) is unnecessary because it is already
cited as authority to paragraph (a)(3). The citation to Public Law 104-
204 is unnecessary because it has already been codified in 38 U.S.C.
1832 and 5110, both of which we propose to add in the authority
citations for Sec. 3.403(b), (c), and proposed (d). For the same
reason, we propose to remove the citation to Public Law 104-204 from
the authority citation to paragraph (b).
III. Health Care Benefits
In addition to amending VA regulations concerning the monetary
allowance, this document also proposes to amend VA regulations in 38
CFR part 17 concerning health care benefits for
[[Page 36644]]
children with spina bifida. By the terms of 38 U.S.C. 101(2), 1802-
1803, 1811-1813, and 1821, VA will provide the child of a Vietnam
veteran or veteran with covered service in Korea, who has been
determined under Sec. 3.814 or Sec. 3.815 of this title to suffer
from spina bifida with such health care as the Secretary determines is
necessary.
In 38 CFR 17.900, Definitions, we propose to add a reference to the
children of veterans with covered service in Korea. Further, we propose
to amend Sec. 17.901 and the Note following this section to conform to
the requirements of section 408 of Public Law 110-387, the ``Veterans'
Mental Health and Other Care Improvements Act of 2008,'' by removing
all language that limits the health care benefit available to covered
children born with spina bifida to only health care that is needed to
treat spina bifida and associated conditions. As revised, Sec.
17.901(a) will allow VA to furnish comprehensive health care to
beneficiaries born with spina bifida. We also propose to make a
technical correction to Sec. 17.901(b) by removing an errant reference
to spina bifida in the first sentence. We also propose to update
mailing information for the Health Administration Center for claims
submitted by or on behalf of spina bifida beneficiaries and
beneficiaries with other covered birth defects.
The 2008 statutory amendments referenced above likewise necessitate
making conforming amendments to Sec. 17.902. We also propose to change
``benefits advisor'' in the first paragraph to reflect a recent change
in the position title.
Authority Citations
We, additionally, propose to revise several authority citations in
38 CFR part 17 to chapter 18 sections that have been repealed and
redesignated. Public Law 108-183, which we are implementing in this
rulemaking, added new section 1821 and redesignated then section 1821
as new section 1831.
Therefore, we propose to remove the references to old section 1821
and replace them with a reference to section 1831 in the authority
citations in Sec. Sec. 17.900, 17.901, 17.902, 17.903, 17.904, and
17.905, as applicable. In addition, references to new section 1821 have
been added in the authority citations in Sec. Sec. 17.900 and 17.901,
as applicable.
IV. Vocational Rehabilitation and Employment
In addition to amending VA regulations concerning the monetary
allowance and health care, we also propose to amend certain sections of
subpart M of part 21 of title 38 CFR that govern VA's provision of
vocational training and rehabilitation to certain veterans' children to
conform with the revisions proposed to be made in part 3 of that title
affecting other benefits and services authorized under 38 U.S.C.
chapter 18. In Sec. 21.8010, we propose to cross reference 38 CFR
3.814 to define the term ``Veteran with covered service in Korea'' and
make other conforming amendments to that section consistent with the
revisions proposed to be made in part 3.
Conforming Amendments
We also propose to amend other part 21 regulations that contain
references to benefits under 38 U.S.C. chapter 18 for children of
Vietnam veterans.
The regulations we are amending to conform with the amendments to
38 U.S.C. chapter 18 include 38 CFR 21.8010(a) (which lists the
definitions for ``eligible child'' and ``spina bifida''), Sec. 21.8012
(which covers evaluation of a child with spina bifida for vocational
training purposes), and Sec. 21.8014 (which covers the procedure and
time limit for filing an application to apply for participation in a
vocational training program for a child with spina bifida).
Authority Citations
We additionally propose to revise several authority citations in 38
CFR part 21 to chapter 18 sections that have been repealed and
redesignated.
Public Law 108-183, which we are implementing in this rulemaking,
added new section 1821, and redesignated then sections 1821, 1822, and
1824, as new sections 1831, 1832, and 1834, respectively.
Therefore, we propose to remove the references to old section 1821
and replace them with a reference to section 1831; remove the
references to section 1822 and replace them with a reference to section
1832; and remove the references to section 1824 and replace them with a
reference to 1834 in the authority citations in Sec. Sec. 21.8010,
21.8014, 21.8016, and 21.8022, as applicable.
In addition, references to new section 1821 have been added in the
authority citations in Sec. Sec. 21.8010, 21.8012, and 21.8014, as
applicable.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule 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 et seq. This proposed rule will directly affect only
individuals and will not directly affect small entities. Therefore,
pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the
initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a ``significant regulatory action,'' requiring review
by the Office of Management and Budget (OMB) unless OMB waives such
review, as any regulatory action that is likely to result in a rule
that may: (1) Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
The economic, interagency, budgetary, legal, and policy
implications of this proposed rule has been examined and it has been
determined to be a significant regulatory action under the Executive
Order because it is likely to result in a rule that may raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal
[[Page 36645]]
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any year. This
proposed rule would have no such effect on State, local, and tribal
governments, or on the private sector.
Catalog of Federal Domestic Assistance Numbers and Titles
The Catalog of Federal Domestic Assistance program numbers and
titles for this proposal are 64.008, Veterans Domiciliary Care; 64.009,
Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care;
64.011, Veterans Dental Care; 64.012, Veterans Prescription Service;
64.013, Veterans Prosthetic Appliances; 64.014, Veterans State
Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016,
Veterans State Hospital Care; 64.019, Veterans Rehabilitation-Alcohol
and Drug Dependence; 64.022, Veterans Home Based Primary Care; 64.026,
Veterans State Adult Day Health Care; 64.100, Automobiles and Adaptive
Equipment for Certain Disabled Veterans and Members of the Armed
Forces; 64.101, Burial Expenses Allowance for Veterans; 64.106,
Specially Adapted Housing for Disabled Veterans; 64.109, Veterans
Compensation for Service-Connected Disability; 64.110, Veterans
Dependency and Indemnity Compensation for Service-Connected Death;
64.115, Veterans Information and Assistance; 64.118, Veterans Housing-
Direct Loans for Certain Disabled Veterans; 64.127, Monthly Allowance
for Children of Vietnam Veterans Born with Spina Bifida; and 64.128,
Vocational Training and Rehabilitation for Vietnam Veterans' Children
with Spina Bifida or Other Covered Birth Defects.
List of Subjects
38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Veterans, Vietnam.
38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs--health, Grant programs--veterans,
Health care, Health facilities, Health professions, Health records,
Homeless, Medical and dental schools, Medical devices, Medical
research, Mental health programs, Nursing homes, Philippines, Reporting
and recordkeeping requirements, Scholarships and fellowships, Travel
and transportation expenses, Veterans.
38 CFR Part 21
Administrative practice and procedure, Armed forces, Civil rights,
Claims, Colleges and universities, Conflict of interests, Education,
Employment, Grant programs--education, Grant programs--veterans, Health
care, Loan programs--education, Loan programs--veterans, Manpower
training programs, Reporting and recordkeeping requirements, Schools,
Travel and transportation expenses, Veterans, Vocational education,
Vocational rehabilitation.
Approved: April 1, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
For the reasons set out in the preamble, VA proposes to amend 38
CFR chapter I as follows:
PART 3--ADJUDICATION
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. Amend Sec. 3.27(c) by:
a. Revising the paragraph heading.
b. Revising the authority citation at the end of the paragraph.
The revisions read as follows:
Sec. 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 or children of
veterans with covered service in Korea. * * *
(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 1821, 5312)
* * * * *
3. Amend Sec. 3.29(c) by:
a. Removing ``who are children of Vietnam veterans'' and adding, in
its place, ``who are children of Vietnam veterans or children of
veterans with covered service in Korea''.
b. Revising the authority citation at the end of the section.
The revision reads as follows:
Sec. 3.29 Rounding.
* * * * *
(c) * * *
(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 1821, 5312)
4. Amend Sec. 3.31:
a. In the introductory paragraph, by removing ``who is a child of a
Vietnam veteran'' and adding, in its place, ``who is a child of a
Vietnam veteran or a child of a veteran with covered service in
Korea''.
b. By revising the authority citation at the end of the section.
The revision reads as follows:
Sec. 3.31 Commencement of the period of payment.
* * * * *
(Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5111)
5. Amend Sec. 3.105(g) by:
a. Revising the paragraph heading.
b. Revising the authority citation at the end of the paragraph.
The revisions read as follows:
Sec. 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
or children of veterans with covered service in Korea. * * *
(Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5112(b)(6))
* * * * *
6. Amend Sec. 3.114(a) by:
a. Removing ``who is a child of a Vietnam veteran'' both times it
appears and adding, in its place, ``who is a child of a Vietnam veteran
or child of a veteran with covered service in Korea''.
b. Revising the authority citation at the end of the paragraph.
The revision reads as follows:
Sec. 3.114 Change of law or Department of Veterans Affairs issue.
(a) * * *
(Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5110(g))
* * * * *
7. Amend Sec. 3.216 by:
a. Adding ``or'' preceding ``a monetary allowance.''
b. Revising the authority citation at the end of the section.
The revision reads as follows:
Sec. 3.216 Mandatory disclosure of social security numbers.
* * * * *
(Authority: 38 U.S.C. 1832, 5101(c))
Sec. 3.261 [Amended]
8. Amend Sec. 3.261(a)(40) by removing ``who are children of
Vietnam veterans (38 U.S.C. 1823(c))'' and adding, in its place, ``who
are children of Vietnam veterans or children of veterans with covered
service in Korea (38 U.S.C. 1833(c))''.
9. Amend Sec. 3.262(y) by:
a. Revising the paragraph heading.
b. Removing ``who is the child of a Vietnam veteran'' and adding,
in its place, ``who is a child of a Vietnam veteran or a child of a
veteran with covered service in Korea''.
[[Page 36646]]
c. Revising the authority citation at the end of the paragraph.
The revisions read as follows:
Sec. 3.262 Evaluation of income.
* * * * *
(y) Monetary allowance under 38 U.S.C. chapter 18 for certain
individuals who are children of Vietnam veterans or children of
veterans with covered service in Korea. * * *
(Authority: 38 U.S.C. 1833(c))
* * * * *
10. Amend Sec. 3.263(g) by:
a. Revising the paragraph heading.
b. Removing ``who is a child of a Vietnam veteran'' and adding, in
its place, ``who is a child of a Vietnam veteran or a child of a
veteran with covered service in Korea''.
c. Revising the authority citation at the end of the paragraph.
The revisions read as follows:
Sec. 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 or children of
veterans with covered service in Korea. * * *
(Authority: 38 U.S.C. 1833(c))
* * * * *
11. Amend Sec. 3.272(u) by:
a. Revising the paragraph heading.
b. Removing ``who is a child of a Vietnam veteran'' and adding, in
its place, ``who is a child of a Vietnam veteran or a child of a
veteran with covered service in Korea''.
The revision reads as follows:
Sec. 3.272 Exclusions from income.
* * * * *
(u) Monetary allowance under 38 U.S.C. chapter 18 for certain
individuals who are children of Vietnam veterans or children of
veterans with covered service in Korea. * * *
* * * * *
12. Amend Sec. 3.275(i) by:
a. Revising the paragraph heading.
b. Removing ``who is a child of a Vietnam veteran'' and adding, in
its place, ``who is a child of a Vietnam veteran or a child of a
veteran with covered service in Korea''.
The revision reads as follows:
Sec. 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 or children of
veterans with covered service in Korea. * * *
* * * * *
13. Amend Sec. 3.307(a)(6) by:
a. Adding a new Sec. 3.307(a)(6)(iv) and a cross reference after
Sec. 3.307(a)(6)(iii).
b. Revising the authority citation at the end of new Sec.
3.307(a)(6)(iv).
The addition and revision read as follows:
Sec. 3.307 Presumptive service connection for chronic, tropical or
prisoner-of-war related disease, or disease associated with exposure to
certain herbicide agents; wartime and service on or after January 1,
1947.
(a) * * *
(6) * * *
(iv) A veteran who, during active, military, naval, or air service,
served between April 1, 1968, and July 31, 1969, in a unit that
operated in or near the Korean DMZ in an area in which herbicides are
known to have been applied during that period shall be presumed to have
been exposed during such service to an herbicide agent, unless there is
affirmative evidence to establish that the veteran was not exposed to
any such agent during that service.
Cross Reference: 38 CFR 3.814(c)(2).
(Authority: 38 U.S.C. 501(a), 1116(a)(3), 1821)
* * * * *
14. Revise Sec. 3.403 by:
a. In Sec. 3.403(b), removing ``An award of the monetary
allowance'' and adding, in its place, ``Except as provided in Sec.
3.814(e), an award of the monetary allowance''.
b. In Sec. 3.403(b), removing ``date of claim, but'' and adding,
in its place, '' the later of the date of claim or the date entitlement
arose, but''.
c. Revising the authority citation for Sec. 3.403(b).
d. Revising the authority citation for Sec. 3.403(c).
e. Adding new Sec. 3.403(d) including the authority citation for
this paragraph (d).
f. Removing the authority citation at the end of the section.
The addition and revisions read as follows:
Sec. 3.403 Children.
* * * * *
(b) * * *
(Authority: 38 U.S.C. 1805, 1832, 5110)
(c) * * *
(Authority: 38 U.S.C. 1815, 1832, 1834, 5110)
(d) Monetary allowance under 38 U.S.C. 1821 for an individual
suffering from spina bifida who is a child of a veteran with covered
service in Korea. Except as provided in Sec. 3.814(e), an award of the
monetary allowance under 38 U.S.C. 1821 based on the existence of an
individual suffering from spina bifida who is a child of a veteran with
covered service in Korea will be effective from either the date of
birth if claim is received within 1 year of that date, or the later of
the date of claim or date entitlement arose, but not earlier than
December 16, 2003.
(Authority: 38 U.S.C. 1821, 1832, 5110)
15. Amend Sec. 3.503 by:
a. Revising the heading of paragraph (b).
b. Removing the authority citation for paragraph (b).
c. Revising the authority citation at the end of the section.
The revisions read as follows:
Sec. 3.503 Children.
* * * * *
(b) Monetary allowance under 38 U.S.C. chapter 18 for certain
individuals who are children of Vietnam veterans or children of
veterans with covered service in Korea.
* * * * *
(Authority: 38 U.S.C. 501, 1832, 5112(b))
16. Amend Sec. 3.814 by:
a. Revising the section heading.
b. In paragraph (a), removing ``is or was a Vietnam veteran'' and
adding, in its place, ``is or was a Vietnam veteran or a veteran with
covered service in Korea'' and by removing ``are or were both Vietnam
veterans'' and adding, in its place, ``are or were both Vietnam
veterans or veterans with covered service in Korea''.
c. Redesignating paragraphs (c) (2) and (3) as (c)(3) and (4)
respectively.
d. Adding a new paragraph (c)(2).
e. In paragraph (c)(3), as redesignated, removing ``Vietnam era.''
and adding, in its place, ``Vietnam era, or whose biological father or
mother is or was a veteran with covered service in Korea and who was
conceived after the date on which the veteran first had covered service
in Korea as defined in this section.'' and by removing ``of a Vietnam
veteran.'' and adding, in its place, ``of a Vietnam veteran or a
veteran with covered service in Korea.''.
f. In paragraph (e), removing ``claim or'' and adding, in its
place, ``claim (or the date of birth if the claim is received within 1
year of that date) or''.
g. Adding a cross reference immediately following paragraph (f).
h. Revising the authority citation at the end of the section.
The addition and revisions read as follows:
Sec. 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 or a veteran with covered service in
Korea.
* * * * *
[[Page 36647]]
(c) * * *
(2) Covered service in Korea. For the purposes of this section, the
term ``veteran with covered service in Korea'' means a person who
served in the active military, naval, or air service in or near the
Korean DMZ between September 1, 1967, and August 31, 1971, and who is
determined by VA, in consultation with the Department of Defense, to
have been exposed to a herbicide agent during such service. Exposure to
a herbicide agent will be conceded if the veteran served between April
1, 1968, and July 31, 1969, in a unit that operated in or near the
Korean DMZ in an area in which herbicides are known to have been
applied during that period.
* * * * *
Cross Reference: 38 CFR 3.307(a)(6)(iv).
(Authority: 38 U.S.C. 501, 1805, 1811, 1812, 1821, 1831, 1832, 1833,
1834, 5101, 5110, 5111, 5112)
17. Amend Sec. 3.815 by revising the authority citation at the end
of the section to read as follows:
Sec. 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.
* * * * *
(Authority: 38 U.S.C. 501, 1811, 1812, 1813, 1814, 1815, 1816, 1831,
1832, 1833, 1834, 5101, 5110, 5111, 5112)
PART 17--MEDICAL
18. The authority citation for part 17 continues to read as
follows:
Authority: 38 U.S.C. 501, 1721, and as noted in specific
sections.
19. Revise the undesignated center heading preceding Sec. 17.900
to read as follows:
Health Care Benefits for Certain Children of Vietnam Veterans and
Veterans with Covered Service in Korea--Spina Bifida and Covered Birth
Defects
20. Amend Sec. 17.900 by:
a. Adding in alphabetical order, the definition of ``Veteran with
covered service in Korea''.
b. Revising the authority citation at the end of the section.
The addition and revision read as follows:
Sec. 17.900 Definitions.
* * * * *
Veteran with covered service in Korea for purposes of spina bifida
means the same as defined at Sec. 3.814(c)(2) of this title.
* * * * *
(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1821, 1831)
21. Amend Sec. 17.901 by:
a. In paragraph (a), removing ``Vietnam veteran's'' and adding, in
its place, ``Vietnam veteran or veteran with covered service in
Korea's'', and by removing ``with such health care as the Secretary
determines is needed by the child for spina bifida'' and adding, in its
place, ``with health care as the Secretary determines is needed''.
b. In paragraph (b), removing ``spina bifida or other covered birth
defects'' and adding, in its place, ``covered birth defects (other than
spina bifida)''.
c. In paragraph (d)(3), removing ``300 S. Jackson Street. Denver,
CO 80209'' and adding, in its place, ``3773 Cherry Creek North Drive,
Denver, CO 80246''.
d. Revising paragraph (d)(4) and the authority citation at the end
of the section.
e. Revising the Note at the end of the section.
The revisions read as follows:
Sec. 17.901 Provisions of Health care.
* * * * *
(d) * * *
(4) The mailing address of the Health Administration Center for
claims submitted pursuant to either paragraph (a) or (b) of this
section is P.O. Box 469065, Denver, CO 80246-9065.
(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1831)
Note to Sec. 17.901: Under this program, beneficiaries with
spina bifida will receive comprehensive care through the Department
of Veterans Affairs. However, the health care benefits available
under this section to children with other covered birth defects are
not comprehensive, and VA will furnish them only health care
services that are related to their covered birth defects. With
respect to covered children suffering from spina bifida, VA is the
exclusive payer for services paid under 17.900 through 17.905,
regardless of any third party insurer, Medicare, Medicaid, health
plan, or any other plan or program providing health care coverage.
As to children with other covered birth defects, any third party
insurer, Medicare, Medicaid, health plan, or any other plan or
program providing health care coverage would be responsible
according to its provisions for payment for health care not relating
to the covered birth defects.
22. Amend Sec. 17.902 by:
a. In the first sentence of paragraph (a), removing ``benefits
advisor'' and adding, in its place, ``customer service
representative''.
b. In paragraph (a), removing the second sentence and adding two
new sentences in its place.
c. Revising the authority citation at the end of the section.
The revisions read as follows:
Sec. 17.902 Preauthorization.
(a) * * * Authorization will only be given in spina bifida cases
where there is a demonstrated medical need. In cases of other covered
birth defects, authorization will only be given where there is a
demonstrated medical need related to the covered birth defects. * * *
* * * * *
(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1831)
23. Amend Sec. 17.903 by revising the authority citation at the
end of the section to read as follows:
Sec. 17.903 Payment.
* * * * *
(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1831)
* * * * *
24. Amend Sec. 17.904 by revising the authority citation at the
end of the section to read as follows:
Sec. 17.904 Review and appeal process.
* * * * *
(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1831)
* * * * *
25. Amend Sec. 17.905 by revising the authority citation at the
end of the section to read as follows:
Sec. 17.905 Medical records.
* * * * *
(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1831)
PART 21--VOCATIONAL REHABILITATION AND EDUCATION
Subpart M--Vocational Training and Rehabilitation for Certain
Children of Vietnam Veterans and Veterans With Covered Service in
Korea--Spina Bifida and Covered Birth Defects
26. The authority citation for part 21, subpart M continues to read
as follows:
Authority: 38 U.S.C. 101, 501, 512, 1151 note, ch. 18, 5112, and
as noted in specific sections.
27. Revise the heading of subpart M as set forth above.
28. Amend Sec. 21.8010:
a. In paragraph (a), by adding in alphabetical order, the
definition of ``Veteran with covered service in Korea''.
b. In paragraph (a) in the definition of ``Eligible child'' by
removing ``3.814(c)(2)'' and adding, in its place, ``3.814(c)(3)''.
[[Page 36648]]
c. In the definition of ``Spina bifida'' by removing ``Sec.
3.814(c)(3)'', and adding, in its place, ``Sec. 3.814(c)(4)''.
d. Revising the authority citation for paragraph (a).
e. Revising the authority citation for paragraph (b).
The addition and revisions read as follows:
Sec. 21.8010 Definitions and abbreviations.
(a) * * *
Veteran with covered service in Korea means a veteran defined at
Sec. 3.814(c)(2) of this title.
* * * * *
(Authority: 38 U.S.C. 101, 1802, 1804, 1811-1812, 1814, 1821, 1831)
(b) * * *
(Authority: 38 U.S.C. 1804, 1811, 1814, 1831)
29. Amend Sec. 21.8012 by:
a. Revising the section heading.
b. Revising the authority citation at the end of the section.
The revisions read as follows:
Sec. 21.8012 Vocational training program for certain children of
Vietnam veterans and veterans with covered service in Korea--spina
bifida and covered birth defects.
* * * * *
(Authority: 38 U.S.C. 1804, 1812, 1814, 1821)
30. Amend Sec. 21.8014 by:
a. In paragraph (a), removing ``Vietnam veteran'', and adding, in
its place, ``Vietnam veteran or veteran with covered service in
Korea''.
b. In paragraph (a)(2), removing ``Vietnam veteran's'', and adding,
in its place, ``Vietnam veteran or veteran with covered service in
Korea's''.
c. Revising the authority citation for paragraph (a).
d. Revising the authority citation for paragraph (b).
The revisions read as follows:
Sec. 21.8014 Application.
(a) * * *
(Authority: 38 U.S.C. 1804(a), 1821, 1832, 5101
(b) * * *
(Authority: 38 U.S.C. 1804, 1811, 1811 note, 1812, 1814, 1831)
31. Amend Sec. 21.8016 by revising the authority citation for
paragraphs (a), (b), and (d) to read as follows:
Sec. 21.8016 Nonduplication of benefits.
(a) * * *
(Authority: 38 U.S.C. 1804(e)(1), 1814, 1834)
(b) * * *
(Authority: 38 U.S.C. 1804(e)(1), 1814, 1834)
* * * * *
(d) * * *
(Authority: 38 U.S.C. 1804, 1814, 1834)
32. Amend Sec. 21.8022(b) by revising the authority citation at
the end of the paragraph to read as follows:
Sec. 21.8022 Entry and reentry.
* * * * *
(b) * * *
(Authority: 38 U.S.C. 1804, 1814, 1832)
[FR Doc. E9-17035 Filed 7-23-09; 8:45 am]
BILLING CODE 8320-01-P