Post-Vietnam C-123 Vets' Kids NOT Eligible For Spina Bifida Care

(In its Monday April 2016 posting in the Federal Register, VA detailed how the laws covering Vietnam veterans' kids do not apply to post-Vietnam C-123 veterans' children. This was not unexpected as it had been explained to us earlier.)

Chapter 18 of title 38, United States Code, provides for benefits for certain birth children of Vietnam veterans and veterans of covered service in Korea who have been diagnosed with spina bifida, except spina bifida occulta, and certain other birth defects. These benefits include: (1) Monthly monetary allowances for various disability levels; (2) health care; and (3) vocational training and rehabilitation. VA's regulations concerning health care for children authorized under this chapter are published at 38 CFR 17.900 through 17.905.

On May 15, 2015, VA published a proposed rule to more clearly define the types of healthcare VA provides, including day healthcare and health-related services, which VA would define as homemaker or home health aide services that provide assistance with Activities of Daily Living or Instrumental Activities of Daily Living that have therapeutic value; and to make changes to the list of health care services that require preauthorization by VA. (80 FR 27878). The comment period closed on June 14, 2015. We received ten comments, which were all generally supportive. However, the commenters raised several issues regarding beneficiaries covered by this rulemaking, specific services provided, definitions included in the proposed rule, and provision of health care through non-VA care (care in the community). We respond to these comments below and adopt as final the proposed rule, without change.

Scope of the RulemakingBack to Top

One commenter stated that children of Vietnam veterans who have spina bifida may have children of their own, and VA should also provide care to grandchildren of Vietnam veterans who have spina bifida. The commenter stated that according to the US National Library of Medicine, spina bifida is likely caused by the interaction of multiple genetic and environmental factors, and that genetic changes in individuals with spina bifida may increase the risk of neural tube defects in the subsequent generation. The commenter stated that if a child with spina bifida can establish that the grandfather was exposed to herbicides during the Vietnam War, that child should also be covered.

Another commenter stated that children of Air Force active duty servicemembers and reservists who were exposed to Agent Orange while flying C-123 aircraft both during the Vietnam War and the post-war period should also be covered. The commenter noted that these servicemembers flew out of air bases in Thailand and Clark Air Base in the Philippine Islands, and some of the airplanes potentially contaminated by Agent Orange remained in service after the war.

In response to the first comment, VA does not have statutory authority to provide health care to grandchildren of Vietnam veterans who may have spina bifida. VA's authority to provide health care to children with spina bifida or other covered birth defects is limited by statute. A “child” covered under this statute is defined at 38 U.S.C. 1831(1) as an individual, regardless of age or marital status, who is the natural child of a Vietnam veteran, and was conceived after the date on which that veteran first entered the Republic of Vietnam during the Vietnam era; or, is the natural child of a veteran of covered service in Korea (as determined for purposes of 38 U.S.C. 1821), and was conceived after the date on which that veteran first entered service described in 38 U.S.C. 1821(c).

For Years, Colorado Legislators Have Blocked Property Tax Relief Due Some VA 100% Permanent and Totally Disabled Veterans

Colorado's statute provides property tax relief for VA-certified permanently and totally disabled state veterans. Colorado's law covers all of them, but some Colorado legislators have mentioned to the state's Veterans Affairs Department they'd like exceptions made, on the basis of their personal preference! The federal VA provides certification for this type of veteran and the state accepts that is the qualifier for relief, the benefit being half of the taxes on the first $200,000 of assessed home value.

The problem is that Colorado pretends there are extra words in its statute and adds, unofficially and without legislation, an unwritten preference suggested by some legislators to disqualify those disabled veterans certified by VA as "permanent and totally disabled" if any portion of the total disability is due to unemployability. Many vets are 60% or more for their service-connected disability but other disabilities make it such that the are unable to work even at the poverty level. They still are certified by VA as "100% permanently and totally disabled", but Colorado adds an unofficial, unmentioned qualifier...to exclude vets with any part of their VA award being for unemployability.

They say this is because some of the legislators who drafted the legislation then told the Colorado Veterans Department that's how they'd like the extra, interpretation added but only AFTER the language had been approved by the people of the state, their legislators, and the governor. Time for a little extra-legal fine tuning, not by adding eligible veterans by but excluding eligible veterans otherwise clearly certified by the VA as eligible for Colorado disabled veteran property tax relief. They did this, not by the clear words of the Colorado statute nor the equally clear words of the VA letter certifying some disabled veterans with unemployability awards as "100% permanent and totally disabled." They did this by simply telling the Colorado Veterans Affairs how they'd prefer the statute to be more exclusive, despite the language of the law just passed.

Only by the legislators' personal preference is it that totally disabled unemployability-qualified veterans are to be excluded, despite their word-for-word qualification under the Colorado law.

Personal preferences of some Colorado legislators somehow trump the clear language of the law, the votes of both houses of its legislators, and the governor's signature and the massive support of Colorado's citizens who want the states veterans given a small and vital benefit.

Here's the law:

 " (1.5)  "Exemption" means the property tax exemptions for qualifying seniors and qualifying disabled veterans allowed by section 39-3-203.

  (3.5)  "Qualifying disabled veteran" means an individual who has served on active duty in the United States armed forces, including a member of the Colorado National Guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the United States department of veterans affairs as one hundred percent permanent and total disability pursuant to a law or regulation administered by the department."

Why the distinction? Anybody catch the word "unemployability" Anybody else notice that it is the United States Department of Veterans Affairs which certifies 100% permanent and totally disabled veterans, not the state of Colorado?