Our Testimony Supporting Senate 16-147 (April 28, 2016)

Statement of Wes Carter, Major USAF Retired

National Chairperson, The C-123 Veterans Association

also speaking for the united veterans committee of colorado

Mr. Chairman, and members of the committee,

I’m Wes Carter, National Chairperson of the C-123 Veterans Association. Today I also represent 450,000 Colorado veterans whose voice is the United Veterans Committee. Before you today is the terrible issue of suicide in Colorado and our hope that Senate Bill 16-147 can help.

I want to share some personal experiences with this issue. My town of Fort Collins lost thirteen children last year. Four were suicides. Four…over 30% if you want simple statistics. We don’t know all the causes, but we certainly know the tragedies our families were left with.

Military suicides are something I became familiar with 26 years service in the Army and then the Air Force. For twelve years I was a hospital administrator. Marvin, one of the officers who nominated me for my commission, faced demons he felt could only be driven away by ending his life. I flew medevac for several years with Diane, a flight nurse. I have a happy memory of her rushing from work to attend my wedding, without time to change from her hospital scrubs. I have been to her parent’s Massachusetts home only twice…each time for the funeral of one of her brothers, both of whom ended their lives while on active duty.

Military and veterans’ suicides. I can speak for the accumulation of life’s burdens in the military…extremely difficult technical and physical training, frequent deployments, injuries, career disappointments, loss of friends, family strife, relocations, financial stress. And then there’s all those people bombing and shooting at you. Life’s tough. We have an evolving understanding that it takes a warrior to call in help. I wish more warriors would reach out, but we see an average of one veteran’s suicide per hour, each and every day. 8000 a year, almost an Army division. Last year in our county, the 80 adults who ended their lives were 3.8% of all adult deaths, but remember what I said about the children…30% of all children’s deaths were by their own hand.

Senate Bills won’t solve everything but, along with recent action in the US Senate, they’ll help. I join Colorado’s 450,000 veterans in urging unanimous approval of Senate Bill 16-147. Thank you, Mr. Chairman.

VA report fails to build confidence (Editorial in my own local newspaper, Fort Collins CO)

Note: I reprint this newspaper's editorial because it is about my local VA clinic, in which I,too, was unable to get timely appointments for a series of orthopedic and oncology issues, and instead sought surgeries elsewhere. It has always been on my mind how much VA has saved by not providing my three hip replacements, six neck and back surgeries, two shoulder surgeries, cancer surgery with subsequent radiation and chemo, It has also been on my mind how financially destructive it would have been on the family if I'd not had other insurance options – I would probably have not sought care for several issues. Are today's veterans forced to those hard choices?
The general public may not know that in many situations, a disabled vet isn't permitted VA medical care and other benefits until VA finishes evaluation his/her claim. That can take years, especially if the claim is first denied and forced into a three to five year appeals delay.That's a long wait when one already has cancer or other issues for which care is sought.
                  If you can get an appointment. I couldn't.

EDITORIAL BOARD
APRIL 24, 2016:


New reports published earlier this month show the Fort Collins Veterans Affairs office blamed its scheduling problems on a single manager in the business office who is no longer with the clinic.

Roughly two years ago, the Coloradoan reported the VA office falsified wait times for local veterans seeking medical care.

Fast forward to earlier this month, and spokesperson Samuel House said, "All appropriate action was taken against the employees."

The Editorial Board struggles with this determination for a number of reasons.

First, we know this problem is widespread. A VA inspector general’s report found it was possible that more than 300,000 veterans nationwide died before their applications, which precede appointments, were processed.

Are we to believe that persistent problems across the country, resulting in an unquantifiable number of delays for care, were isolated to a single person in the Fort Collins office?

In May 2014, the Coloradoan reported staff in Fort Collins was manipulating logs to make it look like they were following the VA’s policy of granting appointments within 14 days of the veterans’ desired dates.

Back in March 2013, the Fort Collins clinic “was having problems with scheduling, employee morale and professionalism, and lack of teamwork between the (medical support assistants)," the report from the federal Office of the Medical Inspector stated. To address those issues, employees were transferred between Cheyenne and Fort Collins, according to the OMI report. The transfers to Fort Collins reported that scheduling in Fort Collins was "fixed" by having staff change appointment dates to be within two weeks of the desired appointment date, an agency goal.

In the report released earlier this month, the employee who was let go defended her actions, saying "this had no effect on the veterans because they received the same appointment they otherwise would have received. When asked if she thought this was “gaming” the system she replied, 'yes.'"

Appeals court finds VA wronged veterans – twisted VA regulation to prevent payment of civilian emergency medical care

What offends me most here are the VA's attorneys. Knowing the deception, they still went before the Court of Appeals for Veterans Claims to defend the wrongful practice. In conscience, they should have stood before the Secretary and explained the proper action and not gone to court hoping for a win over veterans!

A three-judge panel on the U.S. Court of Appeals for Veterans Claims has ruled unanimously that the Department of Veterans Affairs ignored “plain language” of a 2010 statute meant to protect VA-enrolled veterans from out-of-pocket costs when forced to use non-VA emergency medical care.

The panel ordered the Board of Veterans' Appeals to vacate its decision to deny Air Force veteran Richard W. Staab roughly $48,000 in health care costs he was forced to pay following open-heart surgery in December 2010. The board “failed to properly apply the statute and relied on an invalid regulation” to deny Staab's claim, the court ruled.

The decision benefits only Staab, for now. But hundreds of other VA-enrolled veterans who had alternative health insurance, and so got stuck paying some of their outside emergency care costs since Feb. 1, 2010, when the ignored law took effect, have new legal ground on which to refile claims for VA reimbursement, said Bart Stichman, one of Staab's attorneys.

These vets should cite the appeals courts' April 8 Staab v. McDonald decision to argue “clear and unmistakable error” in deciding previous claims, said Stichman, forcing VA claim adjudicators to determine if there was error.

Stichman also is joint executive director of the National Veterans Legal Services Program, a nonprofit veterans service organization that brought Staab's case to the appeals court as it often does on critical benefit issues.

The court, in effect, agreed Staab had been victimized by the VA's convoluted interpretation of a law regarding its obligation to cover non-VA emergency care costs when veterans have other health insurance, including Medicare.

The VA long has maintained it is obligated to pay emergency costs only for veterans who have no alternative health coverage. The consequence of that logic is that VA-enrolled veterans are better off having no other insurance when a health emergency arises then in having some coverage.

For those without insurance, the VA agrees it must cover all costs. For those with insurance, the VA will cover no costs, forcing veterans to pay whatever expenses Medicare or their health insurance plans will not pay.

Recognizing how unfair that is, Congress voted in 2009 to clarify the law, specifically to “allow the VA to reimburse veterans for treatment in a non-VA facility if they have a third-party insurance that would pay a portion of the emergency care.”

To be sure colleagues understood the purpose of the change, Sen. Daniel Akaka, then-chairman of the Senate Veterans Affairs Committee, made a floor speech that it would “modify current law so that a veteran who has outside insurance would be eligible for reimbursement in the event that the outside insurance does not cover the full amount of the emergency care.”

The clarifying statute took effect in February 2010. Yet while rewriting regulations to implement the law, VA officials opted for language that would preserve their former interpretation. Reimbursements for emergency care would be allowed under the revised rule only if the “veteran has no coverage under a health-plan contract” for payment of such care.

In a notice of final rulemaking published April 20, 2012, the VA reinforced the point, stating that any entitlement to care or services under an outside health plan, “even a partial one, bars eligibility” for VA reimbursement.

That was wrong, the appeals court found. The “plain language” of the revised statute, it wrote, shows Congress “intended VA to reimburse a veteran for that portion of expenses not covered by a health plan contract.”

Given the clear meaning, the appeals court deemed the 2012 regulation invalid and ordered it set aside. It also remanded Staab's case to the appeals board to be readjudicated by “properly” applying the law.

Staab, 83, learned of the decision Monday.

“I thought it was great,” he said in a phone interview

A resident of St. Cloud, Minnesota, Staab only enrolled in VA care a decade ago after a foot and ankle injury sustained while offloading cargo in the Pacific in 1953 worsened. The VA rated him 30 percent disabled.

Staab suffered his 2010 heart attack while helping his wife, who had multiple sclerosis, out of their specially equipped van. He recalled being unable to catch his breath and agreed to get in an ambulance only if someone would tend to his wife. He had emergency heart surgery and soon also a stroke that would require a long rehabilitation. He was six months in hospital and nursing home, learning to speak again, as medical bills piled up.

Because Medicare Part A covered only a portion of the rising costs, Staab went home months sooner than his doctors had advised. He forwarded unpaid bills to the VA but it denied payment, explaining that because Medicare had paid some of the cost, the VA couldn't cover what remained.

“I don't think that made any sense,” Staab told me. He was forced draw down his savings, but he did pay all his medical costs, what he estimated for the court were $48,000 in charges.

“That puts a lot of strain on you,” he recalled. His wife died last May.

Jacqueline M. Schuh, a former military attorney in St. Cloud, began to help Staab on a pro bono basis through three levels of administrative appeals. By the time the Board of Veterans' Appeals rejected their case, Stichman and the NVLSP also were involved. Stichman said he has three other cases before the appeals court that, based on the precedence now set by the three-judge panel, are also likely to be decided for the veteran.

“They could have taken any of them but picked Staab first. It's not uncommon that this (faulty regulation) is used as grounds for denial. As you can imagine, a lot of people are partly covered by some other insurance.

“Partly our job is to try to get word out to veterans who were denied in the past on this ground that there is a pathway (to reimbursement). It's not a 100 percent certain pathway. But if they file a claim challenging the previous denial based on clear and unmistakable error, then the VA is required to take a look … (T)here's a very good argument that the regs were clear and unmistakably wrong, given the forcefulness of the court's decision.”

“I hope it will help a lot of people,” Staab said.

The VA can appeal, Stichman said, but he suggested that would be an embarrassment for the department

 Tom Philpott @Military_Update.

Misplaced goggles case led to deadly C-130J crash in Afghanistan

by MIKE FITZGERALD mfitzgerald@bnd.com
Pilot errors involving a misplaced hard shell case for night vision goggles are being blamed for the Oct. 2 crash of an Air Force C-130J air cargo plan during a takeoff from Jalalabad Airfield, Afghanistan. The crash killed 11 people onboard upon impact, according to a statement issued by the Air Mobility Command.A report on the crash, released Friday, noted that the C-130J’s crew flew a successful mission from Bagram Airfield, Afghanistan, to Jalalabad Airfield. While conducting engine running on-load/offload operations at Jalalabad Airfield, the pilot raised the elevators mounted to the horizontal stabilizer by pulling back on the yoke. This provided additional clearance to assist with offloading tall cargo. After a period of time in which the pilot held the yoke by hand, he placed a hard-shell night vision goggle (NVG) case in front of the yoke to hold the elevator in a raised position.

However, because the pilots were operating in darkened nighttime flying conditions and wearing NVGs, neither pilot recognized and removed the NVG case after loading operations were complete or during takeoff. Once airborne, the aircraft increased in an excessive upward pitch during the takeoff climb. The co-pilot misidentified the flight control problem as a trim malfunction, resulting in improper recovery techniques. The rapid increase in pitch angle resulted in a stall from which the pilots were unable to recover. The aircraft crashed about 28 seconds after liftoff, right of the runway, within the confines of Jalalabad Airfield.

The aircraft struck the ground, a perimeter wall and a guard tower, which resulted in all personnel onboard the aircraft being killed, along with three Afghan Special Reaction Force members assigned to the tower.

The crew consisted of the pilot, copilot, and two loadmasters assigned to the 39th Airlift Squadron, Dyess Air Force Base, Texas. Also on board were two fly-away security team members assigned to the 66th Security Forces Squadron, Hanscom Air Force Base, Mass, and five civilian contractor passengers. Killed on the ground were three members of the Afghan Special Reaction Force.

April – Month of the Military Child

That was my grandfather, my dad, me and my siblings, and my own kids. All military brats. AKA "ankle biters." Dependents. The kids.

There was a price paid, and we all know it, but that's what Dad (or Mom) was called to do. 
-------------------
military bratNoun | \ ‘military brat’
1 a: CHILD; specifically: a child serving our country with strength, dignity an love as his or her parent(s) fight for our nation’s security domestically and abroad.

VA caught shredding veterans' claims documents –INCLUDING MINE!

Its happened again. VA caught shredding veterans' claims documents, either purposefully or accidentally. How matters little to a vet who waited from months to a year for the local VARO to decide his claim, or the veteran who has waited three to five years for the Board of Veterans Appeals to review his denied claim: If VA blocks a vet's medical care and other benefits because the facts and proofs originally sent to VA weren't in the C-file, he's screwed!

And I believe I've been screwed. Not only have parts of my 2011 Agent Orange claim remained denied or unresolved for five years, but there's lots of stuff missing from my C-file! By comparing two VA reports available through eBenefits. I can't say whether missing documents were actually shredded but I don't care – they're gone!

I send in most materials for my claim by using eBenefit's SUBMIT DOCUMENTS function available by navigating down from the OPEN CLAIM to VIEW DOCUMENTS. I got the idea to compare the list of materials there to my activity log. The log shows what I did on each visit to rBenefits.

If the activity log showed I submitted something when logged in on a date, that should show up in OPEN CLAIM VIEW DOCUMENTS.

But that wasn't happening.

In fact, dozens of visits showed I submitted documents to help prove my claim but they never were posted to the C-file. Dozens of proofs to my claim were missing, and there was no way to tell which specific items were absent. Still, the list itself should have interested VA in resolving  a serious problem so I brought it to VBA's attention.

And never heard back. So the problem exists today and I'll just have to hope that evidence elsewhere in my C-file will suffice to win claims and appeals. We'll see. I've waited over a year but no answer to my letter.

January 22, 2015
VA Compensation and Pension Service: 

Please compare these two documents and note that VA received from me many documents between 4/2014 and 8/2014 which show on my eBenefits activity (#1) but do not show on the claims “unsolicited documents received (2).

Why were they discarded. 

Thank you.
Sincerely, etc.

Here is the comparison I made to see if documents were missing. This doesn't identify which item are missing unless I know what was sent on that day. Yellow highlight means no corresponding post of a submission in the claim file. There's a lot of yellow! I show one page but there are 33 more with varying amounts shown lost...click to expand.

Army Vet Wins VA Agent Orange Claim, Cites 10 Days At a Post Where AO Was Once Used

This Army vet's claim was denied at first, so he appealed and the Board of Veterans Appeals soon granted his service connection. Read...he said he was TDY to Fort Gordon where Agent Orange was once used to control undergrowth. Ten days. Without any IOM study, or CDC/ATSDR finding...just his own recollection of duty 41 years earlier!

But VA said our ten years aboard C-123s confirmed by the AF and IOM to be contaminated is insufficient evidence to award our claims. Further, the Army vet was a Reservist and BVA found no problem at all providing him statutory veteran status because his ten day of alleged exposure constituted an injury by being on post at Fort Gordon.

This is so much different from how C-123 veterans were treated. VA Office of General Counsel raised the formal veteran status challenge at the last minute and ignored their own precedential opinions as well as a firm list of similar BVA and CAVC decisions.

(http://www.va.gov/vetapp12/Files5/1235937.txt)

Based on the evidence from DoD and the VHA medical
expert's opinion, the Board finds that the
preponderance of the evidence is in favor of finding
that the Veteran was exposed to herbicides (including
Agent Orange and Agent Blue) while serving on ADT at
Fort Gordon, Georgia, from July 24, 1967 to August 4,
1967, which constitutes an injury (see e.g.,
VAOPGCPREC 08-2001).  The Board further finds that,
based on the VHA medical expert's opinion, the
preponderance of the evidence is in favor of finding
that the Veteran's type II diabetes mellitus diagnosed in February 2008 is related to his exposure to herbicides in 1967. Consequently, the Board finds hat the evidence establishes that the Veteran incurred bodily injury due to his exposure to herbicides while on ADT in 1967 and that such bodily injury is the etiology of his current type II diabetes mellitus.  Accordingly, for the purposes of granting service connection for type II diabetes mellitus,the Board finds that veteran status is established for the period of ADT from July 24, 1967 to August 4, 1967, and that the Veteran has type II diabetes mellitus as a result of injury incurred during such service.Forthese reasons, the Board finds that service connection for type II diabetes mellitus is warranted, and theVeteran's appeal is granted. 

The big difference between the lucky Army guy and us? He didn't have VBA Office of Public Health against him like we did.

He didn't have OPH redefining the word "exposure" to prevent exposure claims. He didn't have JSRRC input ignored in violation of VAM21-1MR and VCAA. He didn't have false promises of "case-by-case" claim consideration that only resulted in 100% denial of every single veteran's claim.
He didn't have the VA OGC determined to keep Air Force Reservists from the same protections awarded this Army Reservist.

Amazing! Blue Water Navy Vet Wins VA Claim By Citing Our C-123!

This fellow served aboard the USS Ttconderoga, but claimed its aircraft returned from Vietnam with Agent Orange residue. So, this Blue Water Navy vet wins his BVA appeal thanks to our C-123 efforts!

"The Veteran has credibly testified to repeatedly maintaining helicopters that were covered with leaves, dirt, and other debri from areas in Vietnam that would have likely been cleared by Agent Orange, and it would therefore be improper for the Board to draw a distinction between a Veteran who maintained a plane which was used to spray herbicide and a Veteran who maintained helicopters which were likely covered in herbicide and contaminated debris (the helicopters were likely exposed to herbicide as they landed in Vietnam, then returning to the ship where the Veteran serviced them covered in soil and foliage). Therefore, giving the benefit of the doubt, the Board finds that the Veteran is presumed to have been exposed to herbicides during his active service."

I do wish VA would speed up our own claims!

Great news: Another C-123 Agent Orange claim first denied by VA got corrected.

A couple months ago, Jay Johnston of New York was pretty disappointed, and confused, when his regional VA claims center denied his request for Agent Orange benefits. Jay knew his illnesses were on VA's list of AO "presumptive conditions" so the claim should have gone through.

Also, VA is supposed to process all C-123 claims and appeals through their St Paul MN center – so how did his claim get denied by a New York office?

Jay put the word out, and St Paul VA to the rescue. First, they profusely apologized because VA never should have processed the claim except at St Paul. Then, within four weeks of reaching out to Jay, St Paul completed his award. Effective April 4, Jay is now 100% service connected for Agent Orange exposure.

I spend a lot of time thanking the St Paul staff for trying so hard for C-123 veterans...time well-spent as we can see from our vets getting skillful and timely claims processing.

A suggestion: If your claim has been sitting at any VA regional office except St Paul, it may be because it isn't flagged as a C-123 claim. Let your service officer know and follow-up by double-checking with the VA itself to make certain your claim is being managed by St Pau.

You can count on them, as Jay can attest!

Air Heritage Museum Hosts Annual BBQ on 30 April To Support Its C-123 "Thunder Pig" & Keep Her Flying!

If you are anywhere near the Air Heritage Museum on April 30, stop there for great BBQ, see Thunder Pig, and help keep this last C-123 flying.

VA: SAME-DAY CARE PROMISED NATIONWIDE!

Seeking to end years of scandal over patient treatment delays, the Department of Veterans Affairs is working to offer its patients same-day care at each of its medical centers by year's end.

The goal is part of a nine-point list of initiatives announced Friday, which is being implemented at clinics and hospitals across the nation to better care for veterans in the embattled health system.

Already, 34 facilities offer that same-day primary and mental health care. Colorado Springs is not on that list, though the capability is expected to expand, said Dr. David Shulkin, the VA's undersecretary for health, during a conference for health care journalists in Cleveland.

"This is not only possible - we're doing it today," Shulkin said. "What we need to do is to consistently do it across our 168 member centers."

The VA also plans to roll out an app across the nation that allows patients to schedule their own appointments. And the health care system is implementing a new, easier-to-use scheduling system for its staff, Shulkin said.

The initiative, called a "declaration of access" comes as the agency continues to face withering criticism over the falsification of appointment records across the nation - including at Colorado Springs' clinic at Centennial Boulevard and Fillmore Street.

A recent report by the agency's inspector general found 11.5 percent of veteran appointments for care in Colorado Springs were delayed by 30 days or more. The figure is nearly four times the national rate, and it's up 7 percent from before the new 76,000-square-foot clinic first opened.

The report also found that local clinic workers delayed adding scores of veterans to a list for the "Veterans Choice" program, which would have allowed them to seek private care. It impacted 229 of 450 cases reviewed, the report said.

The new goals are meant to help the VA move past those issues, Shulkin said.

"That is not what we believe represents the current VA today," said Shulkin, of treatment delays that first gained notoriety two years ago. "We've now moved beyond that, reaffirmed our values and making sure we're putting systems in place that work for veterans."

-

Contact Jakob Rodgers: 476-1654

Twitter: @jakobrodgers

Facebook: Jakob Rodgers

Colorado Legislative Council, in describing the disabled veteran property tax exemption on the 2006 ballot

• Colorado Legislative Council, in describing the disabled veteran property tax exemption on the 2006 ballot:

"Veterans are rated 100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong."

• Colorado Division of Veterans Affairs:

VA "unemployability' total and permanent disability awards not acceptable for disabled veteran property tax exemption."

• Is there a disconnect somewhere in CDMVA? 

List of Agent Orange-related diseases may expand

Patricia Kime, Military Times 3:38 p.m. EDT April 8, 2016

The Veterans Affairs Department is weighing whether to add several diseases to the list of health conditions presumed in Vietnam veterans to be caused by exposure to Agent Orange.

A VA working group is studying a report issued in March by the Institute of Medicine to determine whether bladder cancer, hypothyroidism and Parkinson’s-like symptoms — illnesses the IOM said may be more strongly linked to exposure than previously thought — should automatically make a Vietnam veteran eligible for VA disability benefits and health care.

According to Dr. Ralph Erickson, VA's chief consultant for post-deployment health services, the group will make a recommendations to VA Secretary Robert McDonald on whether the diseases should be added to a list of 15 already in place.

“We are in the midst of a deliberative process, carefully looking at all the IOM committee put in the report and additional information that has come out since,” Erickson said. “We will be putting tougher (together?) a VA response that will be brought before senior leaders and ultimately brought before the secretary.”

The process could take up to two years, a VA spokeswoman added.

Roughly 1 million Vietnam veterans are enrolled in the VA health system, according to the department. Based on a review of data for one year, 5,484 of these veterans have been diagnosed with bladder cancer, 15,983 suffer from hypothyroidism and an estimated 1,833 have Parkinson’s-like symptoms.

The working group also is looking into the role, if any, Agent Orange exposure has played in the development of hypertension in Vietnam veterans. According to VA, 307,324 Vietnam veterans in the Veterans Health Administration have high blood pressure.

“Hypertension has been a question that has been asked,” Erickson said. “The cohort of men and women who heroically served their country in uniform and went to Vietnam are in their 60s, 70s and 80s, and these individuals, merely because of their age, are starting to accrue chronic diseases that come with aging. It’s a delicate matter to tease out whether someone has hypertension because of their age or whether it would be related to an exposure to Agent Orange.”

VA began recognizing diseases associated with herbicide exposure in Vietnam beginning in 1991, naming 15 diseases as presumed to be related, including Hodgkin’s disease, multiple myeloma, non-Hodgkin’s lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, soft-tissue sarcoma, chloracne, type-2 diabetes mellitus, light chain amyloidosis, ischemic heart disease, chronic B-cell leukemias, Parkinson’s disease, and spina bifida in offspring of veterans.

The most recent IOM report actually downgraded spina bifida in the children of Vietnam veterans, saying research does not support a previously held belief that the disease occurred in offspring of exposed veterans at higher rates.

But the change of spina bifida from "limited or suggestive evidence" it is related to exposure to “inadequate or insufficient” evidence should not affect disability payments to the 1,153 descendants of Vietnam veterans who receive them, Veterans Benefits Administration senior adviser for compensation services Brad Flohr said.

VA recommends that veterans who have an illness they believe is related to Agent Orange exposure file a claim; they are considered on a case-by-case basis if the illness is not on the presumptive condition list.

Should new diseases be added to the list, the regulation would go into effect 30 days after it is published in the Federal Register.

If a veteran dies of a condition determined to be a presumptive condition after the veteran’s death, VA will provide dependency and indemnity compensation benefits to eligible spouses, children and parents of that veteran.

Patricia Kime covers military and veterans health care and medicine for Military Times. She can be reached at pkime@militarytimes.com.

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).