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5. Page 13, insert the following after the second paragraph: In 1997, Congress changed the law so that children are eligible for spina bifida benefits despite the character of the veteran’s discharge.

6. Page 13, third paragraph: Congress changed the date from February 28, 1961 to January 9, 1962, the date Agent Orange spraying began.

7. Page 13, fifth paragraph: "spina bifida occuta" should read "spina bifida occulta".

8. Page 16, first paragraph: The $70.00 a month limit has been raised to $200.00 a month.

For more information Vietnam Veterans and their widows should contact NVLSP's Agent Orange Resource Center:

Agent Orange Resource Center
National Veterans Legal Services Program
2001 S Street, N.W.
Suite 610
Washington, D.C. 20009-1125
202-797-8364

On February 11, 1999, the institute of Medicine, an affiliate of the National Academy of Sciences, issued the third in a series of reports on health effects of Agent Orange and other herbicides on Vietnam veterans. Though the report appeared to draw no significant new conclusions about whether dioxin and related chemicals are associated with diseases or birth defects, it did confirm earlier studies establishing links or possible links with 10 diseases for which VA compensation is offered. Among those diseases are soft-tissue sarcoma, non-Hodgkin's lymphoma, Hodgkin's disease, respiratory cancers, Prostate cancer, multiple myeloma and chloracne, four conditions for which NAS has found the strongest evidence of an association. In 1996, spina bifida was added to a list of six diseases for which NAS found "limited or suggestive evidence" of an association to Agent Orange. The new report said no additional diseases met that category's criteria. Nor did NAS determine there was evidence that warranted any disease being moved to a category of higher or lower certainty other than urinary bladder cancer which moved into a slightly higher category, but one that will not likely receive VA benefits. The review did examine new research on spina bifida, diabetes, and other diseases. An NAS official said the possible association between herbicides and diabetes and birth defects are the most serious medical questions being studied. The summary of the NAS report can be found at http://www.nap.edu/.

The Department of Veterans Affairs (VA) has issued its final regulations concerning a VA benefits program for children of Vietnam veterans who suffer from spina bifida and medical conditions "associated with" spina bifida. The benefits program, whose statutory authority is found in 38 U.S.C. § 1801 et seq., includes monthly monetary allowances, health care medical expense reimbursement and vocational rehabilitation services. The final regulations were published at 62 Fed. Reg. (FR) 51274 (1997) and became effective October 1, 1997.

The regulations concerning monetary allowances are codified at 38 C.F.R. § 3.814; health care at 38 C.F.R. §§ 17.900-17.905; and vocational rehabilitation and training at 38 C.F.R. §§ 21-8001-8410. Not all types of spina bifida are covered by the law -- children suffering from spina bifida occulta are specifically excluded from the statutory scheme. In addition, the regulations prohibit any retroactive awards prior to October 1, 1997.

The regulations implement the Agent Orange Act of 1996. See Pub. L. No. 104-204 § 421, 110 Stat. 2874, 2923 (1996). The law resulted from a March 1996 report by the National Academy of Sciences (NAS) which found evidence of a link between the birth defect spina bifida in children and a parent's exposure to Agent Orange in Vietnam. Spina bifida is a split or open spine and results from a failure of the spine to close properly during the first month of pregnancy. It is the most frequently occurring permanently disabling birth defect and is usually accompanied by many other related medical problems. This law is the first acknowledgement that the VA is responsible for providing benefits when a veteran's service causes a condition in his or her children.

Under the law, the term "child" means a natural child of a Vietnam veteran, regardless of age or marital status, who was conceived after the date on which the veteran first entered the Republic of Vietnam during the Vietnam era. Active duty during the Vietnam era includes service in offshore waters and service in other locations if it involved "duty or visitation in the Republic of Vietnam." The Vietnam era, relative to these benefits, extends from January 9, 1962, to May 7, 1975. Because the law states that only the natural child of a Vietnam veteran is eligible for benefits, the VA usually requires a birth certificate to establish parentage. Significantly, the Vietnam veteran's character of discharge is not relevant in assessing the child's entitlement to these benefits.

The final regulations provide for monthly monetary allowances to children with spina bifida. There are three levels of disability resulting in three different allowance amounts. Level I is the least disabled; Level III includes the most disabled. The degree of neurological deficit in three separate areas of functioning forms the basis for assigning the specific level of disability. The three areas of neurological deficit are: functioning of the upper and lower extremities; bowel and bladder functioning; and intellectual functioning. The three levels of disability are described in the regulations as follows:

For payment purposes, Level I is the least severe level of disability and the entitlement is $208 per month; the entitlement for Level II is $725 per month; and the entitlement for Level III is $1,242 per month. The benefits will begin on either the date of birth of the child if the claim is submitted within one year of the date of birth, or the date of the claim, but no earlier than the effective date of the law, October 1, 1997. Annual cost of living increases will be provided. The monetary allowance awarded under these regulations is not considered income or resources for the purpose of determining entitlement to or amount of benefits under any federal or federally assisted program (including Medicaid and Medicare). Receipt of the allowance will not affect the right of the child, or the right of any individual based on the child's relationship to that individual, to receive any other benefit to which the child, or that individual, may be entitled from the VA. If both parents are Vietnam veterans, only one monthly allowance is permissible.

Because the VA determined that assessment of the level of disability is not practicable for a child under the age of one, the regulations provide that such a child be rated at the lowest level -- Level I -- unless a pediatric neurologist or pediatric neurosurgeon certifies that the child's neurological deficiency is greater. If, in his or her medical judgment, there is a neurological deficit that will prevent the child from ambulating; or from grasping a pen, feeding him or herself, or performing self care; or from achieving urinary or fecal continence, the child will be rated at Level III. In any event, the VA must reassess the level of disability in each child at the age of one year.

The VA is required under the law to reassess the level of disability assigned at intervals of not more than five years until the child reaches the age of 21. (By age 21, the condition generally stabilizes and reassessment should no longer be necessary.) The level of disability is, to some extent, a matter of judgment. Therefore, it is strongly recommended that claimants consult with both an advocate and the child's doctor before filing an application for benefits. Prior to the filing of the application, VA Form 21-0604, "Application for Spina Bifida Benefits," an informal claim may be filed to establish an earlier date from which payments may be made. An informal application for spina bifida benefits should consist of a statement that the applicant is applying for spina bifida benefits and that further evidence of eligibility will be submitted at a later date. For example, the parent's DD214 or other document showing the parent's Vietnam service, the child's birth certificate, or a doctors statement concerning the seriousness of the spina bifida as it relates to the VA's three neurological tests, may be submitted later.

For eligible individuals, the VA will provide health care specifically for spina bifida or disabilities associated with spina bifida or reimburse the child or family for such health care. The regulations do not provide for comprehensive health care coverage or insurance. Health care is limited exclusively to care for spina bifida or disabilities associated with spina bifida, and will be provided directly by the VA, by contract with an approved health care provider, or by other arrangement with a VA approved health care provider. In practice, the VA expects to reimburse through CHAMPVA, most health care providers. The VA is the exclusive payer for services paid under these regulations regardless of any third party insurer or any other plan or program providing health care coverage. Only those children who have been determined eligible for monthly monetary allowances under 38 C.F.R. § 3.814 are eligible for health care. Payments will be made retroactive to the effective date of the monetary allowance.

Health care means home care, hospital care, may be requested nursing home care, outpatient care, preventive case, respite care, habilitative and rehabilitative care, and case management. It includes the training of appropriate members of a child's family or household in the care of such child, and the provision of such pharmaceuticals, supplies (including continence-related supplies such as catheters, pads, and diapers), equipment (including durable medical equipment), devices, appliances, assistive technology, direct transportation costs to and from approved health care providers (including any necessary costs for meals and lodging en route, and accompaniment by an attendant or attendants), and other materials as the VA determines necessary.

A health care provider is any entity or individual who furnishes health care, including specialized spina bifida clinics, health care plans, insurers, organizations, and institutions. An approved health care provider means a health care provider approved by the Health Care Financing Administration (HCFA), Department of Defense Civilian Health and Medical Program of the Uniformed Service (CHAMPUS), Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA), Joint Commission on Accreditation of Health Care Organizations (JCAHO), or any health care provider approved for providing health care pursuant to a state license or certificate. An entity or individual shall be deemed to be an approved health care provider only when acting within the scope of the approval, license, or certificate. Therefore, it is reasonable to assume that most spina bifida health care will be provided by non-VA health care providers, subject to reimbursement by the VA.

Preauthorization is required for health care consisting of case management, durable medical equipment, home care, professional counseling, mental health services, respite care, training, substance abuse treatment, dental services, transplantation services, or travel (other than mileage for privately owned vehicles). There must be a demonstrated need in order to receive preauthorization. All preauthorization is given by a preauthorization specialist of the Health Administration Center (HAC) in Denver, Colorado. The VA has centralized the administration of the health care benefits program at the HAC. Call 1-800-733-8387 for pre-authorization and claims forms.

Should a health care provider, a claimant, a claimant's family member, or an advocate disagree with the VA's determination concerning health care or reimbursement for health care costs, reconsideration may be requested within one year of the date of the initial determination causing disagreement. The request must state why the decision is in error and must include any new and relevant information not previously considered. A written determination will be issued by the benefits advisor. If there is still dissatisfaction, the person or entity may make a written request for review to the Director of the HAC within ninety days of the date of the reconsideration decision. The Director will issue a written decision and affirm, reverse or modify the previous decision. The final decision of the Director will inform the claimant of further appellate rights for an appeal to the Board of Veterans' Appeals.

Pursuant to 38 C.F.R. § 21.8010, the VA will evaluate a child of a Vietnam veteran who the VA previously has determined, under § 3.814 is entitled to a monthly allowance for spina bifida. If the evaluation establishes that it is feasible for the child to achieve a vocational goal, the VA will develop a written plan and provide training, employment assistance and other rehabilitation services to help the child reach that goal. An application for any of these services may be filed on or after the effective date of the regulations, October 1, 1997.

The regulations define employment assistance as employment counseling, placement and post-placement services, with personal and work adjustment training. The vocational training program consists of vocationally oriented training services, and assistance, including placement and post-placement services, and personal and work-adjustment training that the VA finds necessary to enable a child to prepare for and participate in vocational training or employment. An individual vocational training plan may include a program of higher education only if the program is predominantly vocational in content. The regulations also establish vocational rehabilitation and counseling services, generally as a separate division located either in VA regional offices or in other specified locations.

Vocational rehabilitation benefits under 38 C.F.R. § 21.8010 cannot be received concurrently with benefits under Title 38 U.S.C. Chapter 35 (Survivors' and Dependents' Educational Assistance) ("Chapter 35"). If a child is eligible for benefits under both, he or she must elect, in writing, which benefit to receive. The election can be changed at any time but must be prospective in nature. The period of time for which a child may receive assistance under multiple programs, regardless of the election made, may not exceed 48 months of full-time training (or the equivalent on a part-time basis). Under 38 C.F.R. 21.8020(e), an eligible individual may receive 24 months of full-time training, with an extension not to exceed another 24 months of full-time training if the VA determines that an extension is necessary in order to achieve a vocational goal. Under Chapter 35, an individual is allowed 45 months of educational assistance, or the part-time equivalent.

Advocates need to familiarize themselves with the benefits available to children of Vietnam veterans born with spina bifida. Although some problems with the spina bifida benefits program have begun to surface, it is important to put the development of these problems in perspective. It is remarkable that the Congress created the spina bifida benefits program since, previous to its creation, the government was adamant that exposure to Agent Orange resulted in no ill effects in offspring of Vietnam Veterans. For the first time in history, the VA is responsible for providing benefits to the child of a veteran because the child has a disability related to the veteran's service. Most advocates agree that the VA did an excellent job with the Health Care and Vocational Rehabilitation regulations and that, aside from the focus on the neurological deficit test, the monetary allowance regulations are a reasonable first start.

Application for Spina Bifida Benefits
PRIVACY ACT INFORMATION: The social security number and other information on this form is requested under 38 U.S.C. chapter 18, which provides benefits to Vietnam veterans' children with spina bifida. Any information on this form may be disclosed outside VA only if authorized under 38 U.S.C. 5701 and the Privacy Act, including the routine users identified in the VA system of records, 58VA21/22, Compensation, Pension, Education and Rehabilitation Records-VA, published in the Federal Register. Routine disclosures may be made for the following purposes: Debt collection, civil or criminal law enforcement, communications with members of Congress or other representatives, benefits delivery, administration of programs, and personnel administration. Disclosure of the social security numbers may result in processing your application for spina bifida benefits. RESPONDENT BURDEN: VA may not conduct or sponsor, and respondent is not required to respond to this collection of information unless it displays a valid OMB Control Number, Public reporting burden for this collection of information is estimated to average 10 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. If you have comments regarding this burden estimate or any other aspects of this collection of information, call 1-800-827-1000 for mailing information on where to send your comments.
1. Name of Claimant-Child (First, Middle,Last)	2. Social Security Number of Claimant-Child (If Available)
3. Claimant-Child's Date of Birth (Mo.,Day,Yr.)	4. Claimant-Child's Place of Birth (City and State)
5. Address of Claimant-Child (Include Number and Street or Rural Rte., City or P.O., State and Zip Code)	6. Telephone Number of Claimant-Child (Include Area Code) ( )
7. Name(s) of Natural Parent(s) (Please provide information for both)
A. Father (First, Middle, Last)	B. Mother (First, Middle, Last)
8. Address, Telephone Number and veteran Status of Natural Parent(s)
A. Father (Include Number and Street or Rural Rte., City or P.O., State and Zip Code)	C. Mother (Include Number and Street or Rural Rte., City or P.O., State and Zip Code)
B. Vietnam Service? (If "Yes," provide dates below) YES NO (From: To: )	D. Vietnam Service? (If "Yes," provide dates below) YES NO (From: To: )
9. Social Security Number(s) of Natural Parent(s)
A. Father	B. Mother
10. VA Claim Number(s) Of Natural Parent(s) (If veteran previously applied to VA for any benefit)
A. Father	B. Mother
11. If Child is Under Age 18 Who Has Custody, If Other Than Natural Parent (Complete Items 11A, 11B and 11C)
A. Name of Custodian/Gaurdian of Claimant-Child	B. Relationship to Child Adoptive parent Guardian Other (specify)
C. Address of Custodian/Guardian of Claimant-Child
12A. If Claimant-Child is Age 18 or Older Has the Claimant-Child Been Declared Incompetent?
12B. Name and Address of the Court Which Made the Finding of Incompetency?	12C. Vietnam Service? (If "Yes," provide dates below)
13. Name and Address of Primary Health Care Provider for the Claimant-Child
14A. Has the Child Ever Been Diagnosed With Spina Bifida?	14B. Date of Diagnosis(Mo., Day, Yr.)
14C. If the Claimant-Child Has Been Treated/Hospitalized For Spina Bifida Related Disabilities Within the Last Year, Please Provide the Name and Address of Each Hospital or Institution Where the Treatment Was Provided (Use Separate Sheet if More Space is Needed)
I/We, the undersigned, hereby authorize the hospital or physician shown on Items 13 and 14C to disclose and release to the Department of Veterans' Affairs (VA) any information that may have been obtained in connection with the physical examination or treatment of the child.
15A. Signature(s) of Parent/Guardian/Adult Child	15B. Date Signed
16A. Signature of Witness (Required)	16B. Date Signed
I/We, the undersigned, declare under penalty of perjury that the information provided is true and correct and that the child named in Item 1 above is a natural child of the person(s) named above in Item 3.
17A. Signature	17B. Date Signed
18A. Signature	18B. Date Signed

I. RECENT COURT DECISION REQUIRING THE VA TO PAY ADDITIONAL BENEFITS TO VIETNAM VETERANS AND THEIR SURVIVORS

II. OTHER UPDATES TO OUR SELF-HELP GUIDE