M21-1, Part VI, Chapter 2, Section B – Eligibility and Development

In This Section

Introduction

• application requirement for Chapter 18 benefits
• initial review of eligibility requirements before undertaking development
• example 1: when additional development is not necessary for a spina bifida claim, and
• example 2: when additional development is not necessary for a Chapter 18 claim.

Change Date

VI.2.B.1.a.  Application Requirement for Chapter 18 Benefits

VI.2.B.1.b.  Initial Review of Eligibility Requirements Before Undertaking Development

• Vietnam or specific Korean service, and
• relationship to the Veteran.

References:  For more information on

• Denver RO jurisdiction in Chapter 18 claims and determinations see M21-1, Part VI, 1.1, and
• decision-making by the authorization activity, see
  • M21-1, Part VI, 2.C.1.a, and
  • M21-1, Part VI, 2.D.

VI.2.B.1.c.  Example 1: When Additional Development Is Not Necessary for a Spina Bifida Claim

VI.2.B.1.d.  Example 2: When Additional Development Is Not Necessary for a Chapter 18 Claim

Change Date

VI.2.B.2.a.  Development Process for Chapter 18 Benefits

• In practice, the development in Stages 1 and 2 may be conducted simultaneously.
• Refer to the rating activity for a decision only as provided by M21-1, Part VI, 2.B.1.b and M21-1, Part VI, 2.C.1.a.

Introduction

• Vietnam service requirement, and
• character of discharge exception for Chapter 18 eligibility.

Change Date

VI.2.B.3.a.  Vietnam Service Requirement

• beginning on January 9, 1962, and ending on May 7, 1975, for the purpose of spina bifida benefits eligibility, under 38 CFR 3.814(c)(1), and
• beginning on February 28, 1961, and ending on May 7, 1975, for the purpose of other covered birth defect benefits eligibility under 38 CFR 3.815(c)(1).

Notes:

• Service in RVN generally requires service on land within the country borders or service on inland waterways.  However, it also includes service in the waters offshore or service in other locations if, in either case, the conditions of service involved duty or visitation in RVN.
• The dates of covered RVN service for spina bifida benefits eligibility in 38 CFR 3.814(c)(1) correspond with the dates to which the presumption of exposure to herbicide agents in RVN applies, as discussed in 38 CFR 3.307(a)(6)(iii).
• The dates of covered RVN service for eligibility for benefits for other covered birth defects benefits in 38 CFR 3.815(c)(1) correspond with the dates in the definition of the Vietnam era in 38 CFR 3.2(f).

References:  For more information on

• Vietnam service requirements for
  • spina bifida benefits eligibility, see 38 CFR 3.814(c)(1), and
  • other covered birth defects benefits eligibility, see 38 CFR 3.815(c)(1)
• developing for RVN service, see
  • M21-1, Part IV, Subpart ii, 1.H.1-3, and
  • M21-1, Part III, Subpart iii, 2.D.1.a and 3.c, and
• establishing proof of service in RVN, see M21-1, Part IV, Subpart ii, 2.C.3.

VI.2.B.3.b.  Character of Discharge Exception for Chapter 18 Eligibility

Introduction

• specific Korean service requirements
• presumption of herbicide exposure for some Veterans with covered service in Korea
• establishing herbicide exposure, and
• character of discharge exception for Chapter 18 eligibility.

Change Date

VI.2.B.4.a.  Specific Korean Service Requirements

Covered service in Korea requires

• active military, naval, or air service in or near the Korean demilitarized zone (DMZ) during the period beginning on September 1, 1967, and ending on August 31, 1971, and
• exposure to an herbicide agent during such service as determined by VA in consultation with the Department of Defense (DoD).

VI.2.B.4.b.  Presumption of Herbicide Exposure for Some Veterans with Covered Service in Korea

• between April 1, 1968, and August 31, 1971, and
• in a unit that VA or DoD has determined to have operated in an area in or near the Korean DMZ.

Exception:  The presumption of exposure that arises from the showing above will be rebutted where there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.

Notes:

• For a list of units or other military entities that DoD has identified as operating on or near the Korean DMZ during the qualifying time period, see M21-1, Part IV, Subpart ii, 1.H.4.b.
• Before the amendment of 38 CFR 3.814(c)(2), effective February 24, 2011, VA conceded exposure to herbicides on a factual basis for Veterans who served in specific designated units operating in or near the Korean DMZ between April 1968 and July 1969.

VI.2.B.4.c.  Establishing Herbicide Exposure

VI.2.B.4.d.Character of Discharge Exception for Chapter 18 Eligibility

Introduction

Change Date

VI.2.B.5.a.  Requirement for Conception During or After Qualifying Service

VI.2.B.5.b. Estimating Date of Conception and Taking Next Action 

Introduction

• general relationship eligibility requirements of an individual
• definition of natural child
• effect of parent gender
• development for relationship evidence for
  • spina bifida, and
  • other covered birth defects.

Change Date

VI.2.B.6.a.  General Relationship Eligibility Requirements of an Individual

• the specific relational requirements for benefits for
  • spina bifida benefits, see M21-1, Part VI, 2.B.6.d, and
  • other covered birth defects, see M21-1, Part VI, 2.B.6.e
• the Vietnam service requirement, see M21-1, Part VI, 2.B.3, and
• the Korean service requirement, see M21-1, Part VI, 2.B.4.

VI.2.B.6.b.  Definition:  Natural Child

• age
• marital status, or
• dependency status.

An individual cannot become eligible for Chapter 18 benefits through an adoptive parent.  Only a biological parent of an adopted individual can make that individual eligible.

VI.2.B.6.c.  Effect of Parent Gender

VI.2.B.6.d.  Development for Relationship Evidence for Spina Bifida

Notes:

• A birth certificate with the parents’ names on it or a photocopy of the birth certificate is considered sufficient evidence to verify the claim.
• If the child lives with adoptive parents, evidence is still required to show that one of the biological parents is a Vietnam Veteran or a Veteran meeting the specific Korean service requirements.
• In circumstances where paternity is an issue (for example, the birth certificate shows no father or shows someone other than the Veteran father as the informant),
  • request the types of evidence specified in 38 CFR 3.209 and 38 CFR 3.210 to establish parentage, and
  • note that the provisions of 38 CFR 3.204(a)(1) for accepting only a written statement are not applicable to these cases per 38 CFR 3.814(c)(2).

VI.2.B.6.e.  Development for Relationship Evidence for Other Covered Birth Defects

Change Date

VI.2.B.7.a.  Qualifying Types of Spina Bifida for Eligibility Under Chapter 18

Introduction

• definition of birth defect
• limitation on birth defects and conditions covered
• covered birth defects for benefits under Chapter 18
• birth defects not covered due to
  • familial disorders
  • birth-related disorders, chromosomal disorders, or congenital malignancies, and
  • lack of permanent physical or mental disability, and
• conditions not covered due to
  • birth-related injury or fetal/neonatal infirmity
  • developmental etiology.

Change Date

VI.2.B.8.a.  Definition: Birth Defect

• structure
• function, or
• metabolism.

The abnormality may be

• genetically determined, or
• a result of environmental influence during embryonic or fetal life.

VI.2.B.8.b.  Limitation on Birth Defects and Conditions Covered

• has been determined by VA not to be associated with Vietnam service by reason of its classification as a
  • chromosomal abnormality, or
  • congenital malignancy
• is related to a familial or hereditary condition of the parent
• is likely to have occurred due to actions during prenatal or postnatal period, including a
  • birth-related injury, or
  • fetal or neonatal infirmity with well-established causes
• is a developmental disorder rather than a birth defect, or
• does not result in a permanent mental or physical disability.

VI.2.B.8.c.  Covered Birth Defects for Benefits Under Chapter 18

• achondroplasia
• cleft lip and cleft palate
• congenital heart disease
• congenital talipes equinovarus (clubfoot)
• esophageal and intestinal atresia
• Hallerman-Streiff syndrome
• hip dysplasia
• Hirschprung’s disease (congenital megacolon)
• hydrocephalus due to aqueductal stenosis
• hypospadias
• imperforate anus
• neural tube defects (including spina bifida, encephalocele, and anencephaly)
• Poland syndrome
• pyloric stenosis
• syndactyly (fused digits)
• tracheoesophageal fistula
• undescended testicle, and
• Williams syndrome.

Note:  If any of the birth defects listed above are determined to be familial in a particular family, they are not covered birth defects.

VI.2.B.8.d.  Birth Defects Not Covered Due to Familial Disorders

• albinism
• alpha-antitrypsin deficiency
• Crouzon syndrome
• cystic fibrosis
• Duchenne’s muscular dystrophy
• galactosemia
• hemophilia
• Huntington’s disease
• Hurler syndrome
• Kartagener’s syndrome (primary ciliary dyskinesia)
• Marfan syndrome
• neurofibromatosis
• osteogenesis imperfecta
• pectus excavatum
• phenylketonuria
• sickle cell disease
• Tay-Sachs disease
• thalassemia, and
• Wilson’s disease.

Note:  If any of the birth defects listed above are determined not to be familial in a particular family, then they are covered birth defects.

VI.2.B.8.e.  Birth Defects Not Covered Due to Birth-Related Disorders, Chromosomal Disorders, or Congenital Malignancies

• birth-related injuries
• chromosomal disorders, or
• congenital malignancies.

VI.2.B.8.f.  Birth Defects Not Covered Due to Lack of Permanent  Physical or Mental Disability

• conditions rendered non-disabling through treatment
• congenital heart problems surgically corrected or resolved without disabling residuals
• heart murmurs unassociated with a diagnosed cardiac abnormality
• hemangiomas that have resolved with or without treatment, and
• scars (other than of the head, face, or neck) as the only residual of corrective surgery for birth defects.

VI.2.B.8.g.  Conditions Not Covered Due To Birth-Related Injury or Fetal/Neonatal Infirmity

• asthma and other allergies
• effects of maternal rubella, toxoplasmosis, syphilis, or other maternal infection during pregnancy
• fetal alcohol syndrome or fetal effects of maternal drug abuse
• hyaline membrane disease
• maternal-infant blood incompatibility
• neonatal infections
• neonatal jaundice
• post-infancy deafness/hearing impairment (onset after the age of one year)
• prematurity, and
• refractive disorders of the eye.

VI.2.B.8.h.  Conditions Not Covered Due to Developmental Etiology

• attention deficit disorder
• autism
• epilepsy diagnosed after infancy (after the age of one year)
• learning disorders, and
• mental retardation (unless part of a syndrome that is a covered birth defect).

Introduction

• VA examinations under 38 CFR 3.814
• VA examinations under 38 CFR 3.815
• developing for medical evidence of spina bifida under 38 CFR 3.814, and
• developing for medical evidence of a covered birth defect under 38 CFR 3.815.

Change Date

VI.2.B.9.a.  VA Examinations Under 38 CFR 3.814

• Only request an examination under 38 CFR 3.814 when
  • necessary to determine the degree of disability from spina bifida, and
  • the medical evidence is not sufficient for that purpose.
• VA may accept statements from private physicians, or examination reports from government or private institutions in lieu of a VA examination.
• It is inappropriate to schedule an examination when the evidence of record does not show that spina bifida exists.
• Do not request magnetic resonance imaging.

VI.2.B.9.b.  VA Examinations Under 38 CFR 3.815

• when necessary to determine whether an individual has a covered birth defect, and
• for rating claims for covered birth defects.

VI.2.B.9.c.  Developing for Medical Evidence of Spina Bifida Under 38 CFR 3.814

VI.2.B.9.d.  Developing for Medical Evidence of a Covered Birth Defect Under 38 CFR 3.815