[Federal Register Volume 76, Number 16 (Tuesday, January 25, 2011)]
[Rules and Regulations]
[Pages 4245-4250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1342]
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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: Final rule.
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SUMMARY: This document adopts as a final rule the Department of
Veterans Affairs' (VA) proposal to amend VA adjudication, medical, and
vocational rehabilitation and employment regulations to incorporate
relevant provisions of the Veterans Benefits Act of 2003. Specifically,
this document amends VA 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
amends VA's medical regulations by correcting the Health Administration
Center's hand-delivery address.
DATES: Effective Date: This final rule is effective February 24, 2011.
Applicability Date: This final rule shall apply to all applications
for benefits that are received by VA on or after February 24, 2011 and
to all applications for benefits that were pending before VA, the
United States Court of Appeals for Veterans Claims, or the United
States Court of Appeals for the Federal Circuit on February 24, 2011.
FOR FURTHER INFORMATION CONTACT: Thomas Kniffen, Regulations Staff
(211D), Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420, (202) 461-9366. (This is not a toll-free
number.)
SUPPLEMENTARY INFORMATION: On July 24, 2009, VA published a proposal in
the Federal Register (74 FR 36640), to amend its adjudication, medical,
and vocational rehabilitation and employment regulations by
incorporating relevant provisions from the Veterans Benefits Act of
2003, Public Law 108-183. More specifically, based on Section 102 of
the Act, codified at 38 United States Code (U.S.C.) 1821, VA proposed
to amend VA regulations regarding herbicide exposure of certain
veterans who served in or near the Korean demilitarized zone and
regulations regarding spina bifida in such veterans' children.
Additionally, VA proposed to amend medical regulations by correcting
the Health Administration Center's hand-delivery address. We provided a
60-day comment period and interested persons were invited to submit
comments on or before September 22, 2009. We received five written
comments from the public based on the proposed rule. Two of the
responses were comments from Vietnam Veterans of America (VVA) and
National Veterans Legal Services Program (NVLSP). The remaining three
comments were from the general public.
One commenter supported promulgation of the proposed regulation.
The commenter asserted approval when stating, ``If passed will be a
great help towards helping Korea DMZ Vets with their exposure.'' The
commenter later stated: ``This in fact would promote fairness and be
beneficial to Vets that served along the DMZ. However, it appears that
the new proposed presumption Agent Orange exposure rule, [sic] will not
benefit Korea DMZ Veterans that served outside of the 1968/1969
timeframe.''
NVLSP also asserted approval of the rule by stating that it
``eliminates the need for the claimant to prove a fact that would be
difficult to prove on his or her own* * *such a presumption makes the
VA claims adjudication process more efficient by making it easier for
VA to decide these claims;'' however, NVLSP also expressed the view
that the presumption of exposure set forth in the proposed rule applies
to too narrow a period. NVLSP asserted that the period should conform
to the statutory window of September 1, 1967 through August 31, 1971,
stated in the Veterans Benefits Act of 2003 and that the proposed rule
fails to provide for residual exposure to herbicides for periods long
after herbicide spraying had ceased.
Similarly, VVA expressed that VA is ``taking a step in the right
direction'' by putting ``certain veterans who served in Korea along the
Demilitarized Zone (DMZ) on par with veterans who served in Vietnam and
were also exposed to herbicides.'' VVA contended that, based on past
and current scientific evidence regarding the long-term effects of
herbicides, it is clear that herbicides ``can continue to be toxic and
hazardous'' long after they are applied, and that veterans who served
in Korea along the DMZ after July 1969 and have a condition consistent
with exposure to herbicides ``are being left out in the cold.'' VVA
stated the view that VA's proposal to limit the period covered by the
rule is not supported by scientific and medical evidence.
Based upon these comments, VA has determined that revisions to the
proposed rule, which defined the presumed exposure period as the period
from April 1, 1968 to July 31, 1969, are necessary in order to
adequately reflect the statutory provisions in section 102 of the
Veterans Benefits Act of 2003, codified at 38 U.S.C. 1821. Section
1821(c) states, ``[A] veteran of covered service in Korea is any
individual, without regard to the characterization of that individual's
service, who--(1) Served in the active military, naval, or air service
in or near the Korean demilitarized zone [DMZ], as determined by the
Secretary in consultation with the Secretary of Defense, during the
period beginning on September 1, 1967, and ending on August 31, 1971;
and (2) is determined by the Secretary, in consultation with the
Secretary of Defense, to have been exposed to an herbicide agent during
such service in or near the Korean demilitarized zone.'' We believe it
is reasonable and consistent with the intent of Congress to concede
exposure for veterans who served in or near the Korean DMZ after
herbicide application ceased, because of the potential for exposure to
residuals of herbicides applied in that area. See 149 Cong. Rec.
H11705-01 (2003) (noting that in order to account for residual exposure
``it is appropriate to extend the qualifying service period beyond 1969
to account
[[Page 4246]]
for residual exposure''), see also 149 Cong. Rec. S15133-01 (2003).
Therefore, we are changing the presumption ending date of July 31,
1969, to August 31, 1971.
However, we make no change based on NVLSP's comment that the
beginning presumption date should be September 1, 1967. Neither the
statute nor the legislative history suggests that herbicides were used
prior to 1968. See 149 Cong. Rec. H11705-01 (2003) (noting that the
Secretary of Defense identified that herbicides were used between 1968
and 1969), see also 149 Cong. Rec. S15133-01 (2003). Furthermore, the
statute expressly requires that VA, in consultation with the Department
of Defense (DoD), determine whether exposure occurred between September
1, 1967 and August 31, 1971, and thus clearly permits a finding as to
whether such exposure could have occurred within that period based on
DoD information as to dates of herbicide application. As noted in the
proposed rule, DoD has advised that herbicides were applied near the
Korean DMZ from April 1968 to July 1969. Therefore, we are revising 38
CFR 3.307(a)(6)(iv) and 3.814(c)(2) to presume herbicide exposure for
veterans who served in or near the Korean DMZ between April 1, 1968,
the earliest date of potential exposure indicated by DoD, and August
31, 1971, the date identified by Congress. If VA receives evidence that
herbicides were used in or near the DMZ from an earlier date, VA may
rely on that information in individual cases and may revise the
presumption as necessary.
While revising Sec. 3.307(a)(6)(iv) and Sec. 3.814(c)(2), we
noted that although the first sentence of Sec. 3.814(c)(2) included
the phrase ``in consultation with the Department of Defense'', neither
the second sentence nor Sec. 3.307(a)(6)(iv) contained such language.
In order to clarify that VA relies on DoD records to determine whether
a unit ``operated in or near the Korean DMZ in an area in which
herbicides are known to have been applied'', we have added to the
second sentence of Sec. 3.814(c)(2) and to Sec. 3.307(a)(6)(iv) the
qualifier ``as determined by the Department of Defense'' after ``in a
unit that''. Additionally, although Sec. 3.307(a)(6)(iv) noted that
exposure within the cited time frame would be presumed ``unless there
is affirmative evidence to establish that the veteran was not exposed
to any such agent during that service,'' Sec. 3.814(c)(2) did not.
Under 38 U.S.C. 1821(c), a person shall be considered to have ``covered
service in Korea'' for purposes of providing benefits for spina bifida
in such a person's child if VA determines that they were exposed to
herbicides in or near the Korean DMZ between certain dates. Where
affirmative evidence shows that a person was not exposed to herbicides
during such service, the statutory standard would not be met.
Therefore, we are adding the phrase ``unless there is affirmative
evidence to establish that the veteran was not exposed to any such
agent during that service'' to Sec. 3.814(c)(2) to clarify that the
presumption of exposure may be rebutted.
Another commenter suggested that physical testing be added to the
criterion for granting service connection, in order to minimize costs
to U.S. taxpayers based on the presumption of herbicide exposure. The
commenter stated, ``[I]f [a] veteran served in Vietnam or Korea during
the specified time periods, and laboratory testing for indicators of
exposure such as abnormally high levels of dioxins, then service
connection can be granted on a presumptive basis.'' This comment
appears to express concern that a presumption of herbicide exposure
based solely on time and location of service may be overly broad. Due
to the lapse in time since exposure and the limitations of testing
methods, it is not feasible to rely on testing of individual veterans
to determine herbicide exposure. As explained above, this rule would
presume exposure for veterans who served at the times and places where
there was a significant risk of harmful exposure. We believe this
approach reasonably balances the concerns identified by the commenter
with the purposes of the governing statute and the interests of
veterans, their families, and VA. Therefore, we make no change based on
this comment.
The final commenter supported the rulemaking, but suggested
``strengthening the evidentiary basis for the presumption of exposure
by establishing, in consultation with DoD, a means to determine which
veterans assigned to a qualifying unit were indeed active with the unit
at the qualifying time and place of presumed exposure.'' The new
language in Sec. 3.307(a)(6)(iv) states that a presumption of
herbicide exposure shall be presumed ``unless there is affirmative
evidence to establish that the veteran was not exposed to any such
agent during that service.'' Affirmative evidence to establish that the
veteran was not exposed to such agent would include the situations
mentioned in the comment where a veteran was on leave or otherwise
absent from their unit during the period, as defined in this rule, when
exposure would be conceded to have occurred. In practice, VA considers
all the evidence of record, and any such determination would be made
during the claim adjudication process; therefore, we make no change
based on this comment.
Based on the rationale set forth in the proposed rule and this
document, we are adopting the provisions of the proposed rule as a
final rule with the changes discussed above.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule could only affect VA beneficiaries and will not
affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this
final rule is exempt from the initial and final regulatory flexibility
analysis requirements of Sec. Sec. 603 and 604.
Paperwork Reduction Act
This document contains no provisions constituting a new collection
of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
The information collection requirements for children of veterans with
covered service in Korea are approved by the Office of Management and
Budget (OMB) and have been assigned OMB control number 2900-0572. The
information collection requirements for veterans with covered service
in Korea are approved by OMB and have been assigned OMB control number
2900-0001.
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)
[[Page 4247]]
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 final rule have 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.
Therefore, the rule was submitted to OMB for review.
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 governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any year. This final 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 final rule 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.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, approved this document on September 30, 2010,
for publication.
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.
Dated: January 19, 2011.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
For the reasons set out in the preamble, 38 CFR chapter 1 is
amended as follows:
PART 3--ADJUDICATION
0
1. The authority citation for part 3, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. Amend Sec. 3.27(c) by:
0
a. Revising the paragraph heading.
0
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)
* * * * *
0
3. Amend Sec. 3.29(c) by:
0
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''.
0
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)
0
4. Amend Sec. 3.31:
0
a. In the first sentence of the introductory text, 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''.
0
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)
0
5. Amend Sec. 3.105(g) by:
0
a. Revising the paragraph heading.
0
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))
* * * * *
0
6. Amend Sec. 3.114(a) by:
0
a. Removing ``who is a child of a Vietnam veteran'' both times it
appears
[[Page 4248]]
and adding, in its place, ``who is a child of a Vietnam veteran or
child of a veteran with covered service in Korea''.
0
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)
* * * * *
0
7. Amend Sec. 3.216 by:
0
a. Adding ``or'' preceding ``a monetary allowance'' in the first
sentence.
0
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]
0
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))''.
0
9. Amend Sec. 3.262(y) by:
0
a. Revising the paragraph heading.
0
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''.
0
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))
* * * * *
0
10. Amend Sec. 3.263(g) by:
0
a. Revising the paragraph heading.
0
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''.
0
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))
* * * * *
0
11. Amend Sec. 3.272(u) by:
0
a. Revising the paragraph heading.
0
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. * * *
* * * * *
0
12. Amend Sec. 3.275(i) by:
0
a. Revising the paragraph heading.
0
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. * * *
* * * * *
0
13. Amend Sec. 3.307 by:
0
a. Adding paragraph (a)(6)(iv).
0
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 August 31, 1971, in a unit that, as
determined by the Department of Defense, 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. See also 38 CFR 3.814(c)(2).
(Authority: 38 U.S.C. 501(a), 1116(a)(3), and 1821)
* * * * *
0
14. Amend Sec. 3.403 by:
0
a. In paragraph (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''.
0
b. In paragraph (b), removing ``date of claim, but'' and adding, in its
place, ``the later of the date of claim or the date entitlement arose,
but''.
0
c. Revising the authority citation for paragraph (b).
0
d. Revising the authority citation for paragraph (c).
0
e. Adding paragraph (d) and its authority citation.
0
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)
0
15. Amend Sec. 3.503 by:
0
a. Revising the heading of paragraph (b).
0
b. Removing the authority citation for paragraph (b).
0
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))
0
16. Amend Sec. 3.814 by:
[[Page 4249]]
0
a. Revising the section heading.
0
b. In paragraph (a), first sentence, 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 from the third
sentence ``are or were both Vietnam veterans'' and adding, in its
place, ``are or were both Vietnam veterans or veterans with covered
service in Korea''.
0
c. Redesignating paragraphs (c)(2) and (3) as (c)(3) and (4)
respectively.
0
d. Adding a new paragraph (c)(2).
0
e. In newly redesignated paragraph (c)(3), 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''.
0
f. In paragragh (e) introductory text, 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''.
0
g. Revising the authority citation at the end of the section.
0
h. Adding a cross reference 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.
* * * * *
(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 an herbicide agent during such service. Exposure
to an herbicide agent will be conceded if the veteran served between
April 1, 1968, and August 31, 1971, in a unit that, as determined by
the Department of Defense, operated in or near the Korean DMZ in an
area in which herbicides are known to have been applied during that
period, unless there is affirmative evidence to establish that the
veteran was not exposed to any such agent during that service.
* * * * *
(Authority: 38 U.S.C. 501, 1805, 1811, 1812, 1821, 1831, 1832, 1833,
1834, 5101, 5110, 5111, 5112)
Cross Reference: 38 CFR 3.307(a)(6)(iv).
0
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
0
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.
0
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
0
20. Amend Sec. 17.900 by:
0
a. Adding in alphabetical order, the definition of ``Veteran with
covered service in Korea''.
0
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)
0
21. Amend Sec. 17.901 by:
0
a. In paragraph (a), first sentence, 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''.
0
b. In paragraph (b), first sentence, removing ``spina bifida or other
covered birth defects'' and adding, in its place, ``covered birth
defects (other than spina bifida)''.
0
c. In paragraph (d)(3), removing ``300 S. Jackson Street. Denver, CO
80209'' and adding, in its place, ``3773 Cherry Creek Drive North,
Denver, CO 80246''.
0
d. Revising paragraph (d)(4) and the authority citation at the end of
the section.
0
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.
0
22. Amend Sec. 17.902 by:
0
a. In the first sentence of paragraph (a), removing ``benefits
advisor'' and adding, in its place, ``customer service
representative''.
0
b. In paragraph (a), removing the second sentence and adding two new
sentences in its place.
0
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)
0
23. Amend Sec. 17.903 by revising the authority citation at the end of
the section to read as follows:
Sec. 17.903 Payment.
* * * * *
[[Page 4250]]
(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1831)
* * * * *
0
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)
* * * * *
0
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
0
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.
0
27. Revise the heading of Subpart M as set forth above.
0
28. Amend Sec. 21.8010:
0
a. In paragraph (a) in the definition of ``Eligible child'' by removing
``3.814(c)(2)'' and adding, in its place, ``3.814(c)(3)''.
0
b. In paragraph (a) in the definition of ``Spina bifida'' by removing
``Sec. 3.814(c)(3)'', and adding, in its place, ``Sec. 3.814(c)(4)''.
0
c. In paragraph (a), by adding in alphabetical order, the definition of
``Veteran with covered service in Korea''.
0
d. Revising the authority citation for paragraph (a).
0
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.
0
29. Amend Sec. 21.8012 by:
0
a. Revising the section heading.
0
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)
0
30. Amend Sec. 21.8014 by:
0
a. In paragraph (a) introductory text, first sentence, removing
``Vietnam veteran'', and adding, in its place, ``Vietnam veteran or
veteran with covered service in Korea''.
0
b. In paragraph (a)(2), removing ``Vietnam veteran's'', and adding, in
its place, ``Vietnam veteran or veteran with covered service in
Korea's''.
0
c. Revising the authority citation for paragraph (a).
0
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)
0
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)
0
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. 2011-1342 Filed 1-24-11; 8:45 am]
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