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.

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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).

With respect to the second comment, VA also does not have the authority to extend benefits under 38 U.S.C. Chapter 18 to children of veterans who did not serve in the Republic of Vietnam during the Vietnam era or who did not have certain service in Korea. “Vietnam veteran” is defined at 38 U.S.C. 1831(2) to mean an individual who performed active military, naval, or air service in the Republic of Vietnam during the Vietnam era, without regard to the characterization of that individual's service. The “Vietnam era” is defined at 38 U.S.C. 1831(3) as ending on May 7, 1975. A veteran of covered service in Korea is any individual, without regard to the characterization of that individual's service, who 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 is determined by VA, in consultation with the Department of Defense, to have been exposed to an herbicide agent during such service in or near the Korean demilitarized zone. 38 U.S.C. 1821(c). To the extent a veteran who flew in a C-123 is also a veteran with covered service defined in 38 U.S.C. 1831(2) and has a child covered by 38 U.S.C. 1831(1), however, the child would be eligible for benefits under Chapter 18.

In further response to the comment regarding reservists and servicemembers who flew in C-123 aircraft, we note that VA does have authority in certain other circumstances to extend benefits to veterans who did not serve in those defined areas or time periods, but may have been exposed to Agent Orange. This authority is unrelated to benefits furnished to eligible children under 38 U.S.C. Chapter 18 but we briefly discuss it here because a recent VA rulemaking is relevant to the second public comment. 

On June 19, 2015, VA published an interim final rule (80 FR 35248) extending the presumption of herbicide exposure and presumption of service connection to individuals who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. The June 2015 interim final rule thus covers servicemembers who were potentially exposed to Agent Orange during periods after the end of the Vietnam War, and in regions outside of Vietnam. VA determined that the presumption of service connection should be extended to these servicemembers based on a January 2015 report from the National Academies of Sciences, Engineering, and Medicine's Institute of Medicine (IOM) titled “Post-Vietnam Dioxin Exposure in Agent Orange-Contaminated C-123 Aircraft.” 

In that report the IOM noted that between 1972 and 1982, approximately 1,500 to 2,100 U.S. Air Force Reserve personnel trained and worked on C-123 aircraft that previously had been used to spray herbicides, including Agent Orange, during Operation Ranch Hand. Based on a review of the evidence, IOM concluded that it was plausible that Air Force reservists flying C-123 aircraft used in Operation Ranch Hand were exposed to Agent Orange.

We make no changes based on these comments.