Herbicide Exposure and Veterans With Covered Service in Korea, 4245-4250 [2011-1342]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 76, Number 16 (Tuesday, January 25, 2011)]
[Rules and Regulations]
[Pages 4245-4250]
From the Federal Register Online via the Government Printing 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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