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

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
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2
3
4
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6
7
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9

1.  Application and Initial Eligibility Verification


Introduction

This topic contains information on application and initial eligibility verification, including


Change Date

December 12, 2018

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

A claimant seeking benefits associated with spina bifida and other covered birth defects may use VA Form 21-0304, Application for Benefits for Certain Children with Disabilities Born of Vietnam and Certain Korean Service Veterans.  Whether another filing satisfies Department of Veterans Affairs (VA) claim criteria is determined by 38 CFR 3.151 and 38 CFR 3.155.
Reference:  For more information about Denver Regional Office (RO) jurisdiction in Chapter 18 claims and determinations see M21-1, Part VI, 1.1.

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

Do not develop for additional evidence from the claimant if it can be determined immediately that the claimant cannot meet all the qualifying requirements for
  • Vietnam or specific Korean service, and
  • relationship to the Veteran.
When confirmation cannot be obtained that the above elements of basic eligibility have been met, prepare an administrative denial and notify the claimant.
Important:  Refer to the rating activity any claim found to require
  • a determination as to the existence of a qualifying disability, or
  • denial due to immediate recognition that the claimant has only spina bifida occulta.

References:  For more information on


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

Situation:  A child of a Veteran who served only during the Gulf War applies for spina bifida benefits.
Action:  Send a denial letter without developing for the nature of the disability or relationship evidence.
Rationale:  It is immediately apparent that the parent of the claimant cannot meet Vietnam or specific Korean service requirements for Chapter 18 benefits.

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

Situation:  A child with spina bifida occulta applies for Chapter 18 benefits.
Action:  Refer the case to the rating activity for a rating decision denying the claimwithout developing for Vietnam or specific Korean service requirements and relationship evidence.
Rationale:  The claimant does not have a qualifying spina bifida disability that meets the requirements for Chapter 18 benefits.  A rating decision is required to implement a denial of benefits when the child has spina bifida occulta or no spina bifida condition exists.
Note:  In addition to denying the claim for spina bifida benefits, the rating decision must also address entitlement to benefits for other covered birth defects under 38 CFR 3.815.

2.  Development Process Overview


Change Date

December 12, 2018

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

The table below describes the responsibilities of the development activity during the stages of the development process for Chapter 18 benefits.
Stage Description

1

The development activity develops for and reviews
  • service records to prove that the biological Veteran parent has qualifying Vietnam or specific Korean service dates and duty assignments
  • birth certificates to determine date of conception, and
  • evidence of a biological relationship between the individual and the parent with qualifying Vietnam or specific Korean service.

2

The development activity develops for
  • medical evidence verifying that the individual has a qualifying medical condition for Chapter 18 benefits, and
  • any other medical and lay evidence regarding treatment and symptoms.

3

The development activity refers the claim to either the authorization activity or the rating activity for a decision.
Important:
Reference:  For more information on Denver RO jurisdiction in Chapter 18 claims and determinations, see M21-1, Part VI, 1.1.

3.  Vietnam Service Requirements and Development


Introduction

This topic contains information on the Vietnam service requirements and development, including


Change Date

October 20, 2016

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

Vietnam Veteran is a person who performed active military, naval, or air service in the Republic of Vietnam (RVN) during the period
  • 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


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

Eligibility for Chapter 18 benefits is not dependent on character of discharge.  That is, regardless of characterization of the service of the Veteran parent, individuals may receive Chapter 18 benefits if the necessary Vietnam service and relationship requirements are met.

4.  Korean Service Requirements and Development


Introduction

This topic contains information on Korean service requirements and development, including


Change Date

October 20, 2016

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

Effective December 16, 2003, the Veterans Benefits Act of 2003, as codified at 38 U.S.C. 1821(c), provides benefits and services to children born with spina bifida who are the natural children of Veterans with covered service in Korea.

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

Under 38 CFR 3.814(c)(2), effective February 24, 2011, presume exposure to an herbicide agent for Veterans who served

  • 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

Use the table below to establish exposure to herbicides in claims based on Korean service.
If the Veteran served in Korea …
Then …
in a unit or other military entity listed inM21-1, Part IV, Subpart ii, 1.H.4.b between April 1, 1968, and August 31, 1971
concede that the Veteran
  • served at or near the DMZ, and
  • was exposed to herbicides containing Agent Orange.
send a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides on a factual, case-by-case basis.
Reference:  For more information on requesting records from JSRRC in support of a Korean DMZ herbicide claim, see M21-1, Part IV, Subpart ii, 1.H.4.c.

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

As with Vietnam service, eligibility for Chapter 18 benefits based on Korean service is not dependent on character of discharge.  That is, regardless of the characterization of service of the Veteran-parent, individuals may receive Chapter 18 benefits if the specific Korean service and relationship requirements are met.

 5.  Date of Conception Considerations 


Introduction

This topic contains information on date of conception considerations in claims involving Vietnam or Korean service, including

Change Date

October 20, 2016

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

To be eligible for Chapter 18 benefits, the individual must have been conceived after the date on which the Veteran-parent first had qualifying service in RVN or Korea.

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

Follow the steps in the table below to estimate the date of conception and determine the next action to take.
Step
Action
1
Review the date of birth on the birth certificate.
2
Use the following to determine the likely date of conception:
  • The second page of a birth certificate (Part 2) contains health and statistical data, such as an estimate of the length of pregnancy.  Although Part 2 of a birth certificate is not mandatory to establish eligibility, this evidence may help to establish the date of conception.
  • According to Danforth’s Obstetrics and Gynecology, a “normal,” full-term birth may occur as many as 10 months or as few as 8 months after conception.
3
Use the table below to determine the appropriate next action to take.
If the date of conception (at least as likely as not) was …
Then …
during or after the Veteran’s qualifying RVN or Korean service
move on to consideration of evidence of relationship underM21-1, Part VI, 2.B.6.
before the Veteran’s qualifying RVN or Korean service
Note:  Questions about the child’s date of conception will be resolved by an administrative decision.

6.  Relationship Requirements and Developing for Relationship Evidence


Introduction

This topic contains information on relationship requirements and developing for relationship evidence, including


Change Date

October 20, 2016

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

To be eligible for Chapter 18 benefits, the individual must be the natural child of a Veteran with qualifying service.
Important:  VA requires more than a written statement to establish parentage.  A birth certificate will always be required.
Note:  Specific relationship requirements exist, separately, for spina bifida benefits and other covered birth defects benefits.
References:  For more information on

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

A parent’s natural child is the parent’s biological child, regardless of the child’s

  • 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

Use the table below to determine the effect of the Veteran parent’s gender on a child’s entitlement to benefits.
If the Veteran’s child suffers from …
And the Veteran parent rendered qualifying service in …
Then VA may award benefits …
spina bifida
  • RVN, or
  • Korea
regardless of the gender of the Veteran parent.
Note:  Even if both of an individual’s parents are eligible Veterans meeting the service requirements, the eligible child is entitled to only one award of spina bifida benefits.
a covered birth defect
only if the child’s biological mother is a Vietnam Veteran.

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

Review the parents’ names on the birth certificate in the Veteran’s claims folder.  Ensure the birth certificate lists the Veteran(s) as the parent of the claimant.

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),

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

Review the mother’s name on the birth certificate in the Veteran’s claims folder.  Ensure that the birth certificate lists the Veteran as the mother of the claimant.
Note:  A birth certificate with the mother’s name on it or a photocopy of the birth certificate is considered sufficient evidence to verify the claim.

7.  Disability Requirement for Spina Bifida Benefits


Change Date

December 12, 2018

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

Spina bifida benefits are payable for all types of spina bifida except spina bifida occulta.
The term spina bifida refers to a defective closure of the bony encasement of the spinal cord but does not include other neural tube defects, such as encephalocele and anencephaly (VAOPGCPREC 5-1999).
Note:  The rating activity is responsible for assessing disability level for spina bifida.

8.  Disability Requirement for Other Covered Birth Defects


Introduction

This topic contains information on the disability requirement for other covered birth defects, including


Change Date

October 20, 2016

VI.2.B.8.a.  Definition: Birth Defect

birth defect is an abnormality of

  • 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

Not all birth defects and conditions qualify an individual for Chapter 18 benefits.  VA will only cover birth defects that are potentially linked to a female Veteran’s Vietnam service and have resulted in a permanent mental or physical disability.
Birth defects and conditions that have been excluded fall under one of the categories listed below.  The condition
  • 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

Covered birth defects include, but are not limited to

  • 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

Birth defects that are familial disorders are not covered birth defects.  These include, but are not limited to

  • 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

Conditions identified in the table below are not considered covered birth defects by reason of their respective classifications as
  • birth-related injuries
  • chromosomal disorders, or
  • congenital malignancies.
Note:  These listings are not necessarily exhaustive.
Birth-Related Injuries
Chromosomal Disorders
Congenital Malignancies
brain damage due to anoxia during or around time of birth
Down syndrome and other trisomies
medulloblastoma
cerebral palsy due to birth trauma
Fragile X syndrome
neuroblastoma
facial nerve palsy or other peripheral nerve injury
Klinefelter’s syndrome
retinoblastoma
fractured clavicle
Turner’s syndrome
teratoma
Horner’s syndrome due to forceful manipulation during birth
Wilm’s tumor

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

Birth defects that are not covered because they lack permanent physical or mental disability include, but are not limited to,

  • 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

Conditions that are due to a fetal or neonatal infirmity with well-established causes or that are miscellaneous pediatric conditions are not covered birth defects.  These include, but are not limited to

  • 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

Conditions that are developmental disorders are not covered birth defects.  These include, but are not limited to

  • 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).

9.  Developing for Medical and Lay Evidence


Introduction

This topic contains information on developing for medical and lay evidence, including


Change Date

December 12, 2018

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

For the purpose of cases seeking monetary allowance under 38 CFR 3.814 for spina bifida, VA will schedule an examination only under limited circumstances.
Important:
  • 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

For cases of a monetary allowance under 38 CFR 3.815 for other covered birth defects, VA will schedule an examination

  • when necessary to determine whether an individual has a covered birth defect, and
  • for rating claims for covered birth defects.
Note:  VA may accept statements from private physicians or examination reports from government or private institutions in lieu of a VA examination.

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

Follow the steps in the table below to develop for medical evidence of spina bifida under 38 CFR 3.814.
Step
Action
1
Does the Chapter 18 claims folder contain medical evidence submitted by the claimant showing that he/she has a form of spina bifida other than spina bifida occulta?
2
Did the claimant reply to the request and submit the requested supporting medical evidence?
  • If yes, go to Step 3.
  • If no, go to step 4.
3
Is the medical evidence adequate for purposes of assigning an evaluation?
  • If yes, go to Step 4.
  • If no, schedule a VA examination and follow up to obtain the report before proceeding to Step 4.
4
Send the claim to the rating activity to review the claim for rating.

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

Follow the steps in the table below to develop for evidence of a covered birth defect under 38 CFR 3.815.
Step
Action
1
Does the Chapter 18 claims folder contain medical evidence submitted by the claimant showing that he/she has a covered birth defect as defined in 38 CFR 3.815(c)(3)?
  • If yes, go to Step 3.
  • If no,
    • send the claimant a letter requesting supporting medical evidence
    • attach
    • allow 30 days for a reply, and
    • go to Step 2.
2
Did the claimant reply to the request and submit supporting medical evidence of a covered birth defect?
  • If yes, go to Step 3.
  • If no, go to step 4.
3
If the medical evidence is adequate to find a covered birth defect andassign an evaluation, go to Step 4.  Otherwise, schedule a VA examination and follow up to obtain the report before proceeding to Step 4.
4
Send the claim to the rating activity to review the claim for rating.
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