[Federal Register Volume 60, Number 184 (Friday, September 22, 1995)]
[Rules and Regulations]
[Pages 49225-49228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23515]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AF02
Schedule for Rating Disabilities; Hemic and Lymphatic Systems
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs' (VA)
Schedule for Rating Disabilities of the Hemic and Lymphatic Systems.
The effect of this action is to update the hemic and lymphatic portion
of the rating schedule to ensure that it uses current medical
terminology and unambiguous criteria, and that it reflects medical
advances that have occurred since the last review.
DATES: This amendment is effective October 23, 1995.
FOR FURTHER INFORMATION CONTACT:
Don England, Chief, Regulations Staff, Compensation and Pension
Service, Veterans Benefits Administration, Department of Veterans
Affairs, 1800 G Street, Washington, DC, 20420, (202) 273-7210.
SUPPLEMENTARY INFORMATION: In the Federal Register of April 30, 1993,
(58 FR 26080-83) VA published a proposal to amend the Schedule for
Rating Disabilities of the hemic and lymphatic systems. Interested
persons were invited to submit written comments, suggestions or
objections on or before June 1, 1993. We received comments from the
Veterans of Foreign Wars, the Disabled American Veterans, the Paralyzed
Veterans of America and one comment from a concerned individual.
We proposed to reduce the evaluation for splenectomy, diagnostic
code 7706, from 30 percent to 10 percent. Several commenters felt, for
various reasons, that the evaluation for splenectomy should be more
than 10 percent.
One commenter agreed that antibiotics may compensate for any
increased susceptibility to infection, but was not persuaded that
medical treatment is so effective that disabling consequences of
splenectomy are nearly eliminated. He maintained that asplenic patients
require vigilant medical intervention to ward off infections. Another
commenter suggested that after splenectomy, patients must carefully
avoid activities that may result in trauma and avoid exposure to
infection, and that these environmental restrictions substantially
limit the range of vocational possibilities, resulting in industrial
impairment greater than the 10 percent proposed for this disability. A
third commenter stated that since he has undergone a splenectomy,
employers have turned him down due to high risk and that his life
insurance is more expensive.
On reconsideration, we have determined that an evaluation of 20
percent is warranted instead of 10 percent because of the many
functions that the spleen performs in the areas of immune response,
filtration of the blood, iron reutilization, blood volume regulation
and others, and that splenectomy increases susceptibility to certain
infections, such as those caused by encapsulated pneumococcus bacteria.
This increased susceptibility requires that splenectomy patients
restrict their activities, resulting in moderate industrial impairment,
which we feel is consistent with the 20 percent level of disability.
This level of disability is assigned throughout the rating schedule for
``moderate'' disability, for example, under the diagnostic codes for
liver abscess (7313), pellagra (6315), resection of large intestine
(7329) and erythromelalgia (7119).
One commenter stated that asplenia should be included in the
evaluation criteria for sickle cell anemia. We do not agree. If removal
of the spleen is necessary in the treatment of sickle cell anemia, the
splenectomy will be evaluated separately under diagnostic code 7706,
and combined.
One commenter assumed that complications of splenectomy such as
anemia would be rated on the symptomatology demonstrated. He is correct
and, for the sake of clarity, we have added a note instructing the
rater to separately evaluate complications if they become manifest to a
compensable degree.
One commenter felt that the 30 percent evaluation for splenectomy
should be ``grandfathered'', and in fact it is. In section 103(a) of
the Veterans' Benefits Programs Improvement Act of 1991 (Pub. L. 102-
86) Congress modified 38 U.S.C. 1155 to provide that a readjustment to
the rating schedule will not result in a reduction of any disability
evaluation in effect on the date of the readjustment unless that
disability has actually improved. Given the permanent nature of a
splenectomy, a 30 percent evaluation assigned under the prior rating
schedule will be protected. The effect of this change is, therefore,
prospective only.
One commenter felt that VA should contact all veterans who would be
affected by the change in the evaluation of splenectomy, rather than
requiring them to read the Federal Register.
Publication in the Federal Register is the legal means for any
federal agency to notify the public of changes to regulations.
Furthermore, since this change is prospective, taking the additional
step of contacting asplenic veterans who are currently receiving
benefits would serve no purpose since they will not be affected by this
change in the regulation.
One commenter believed that there should be a note following the
evaluation formula for anemia, diagnostic code 7700, instructing the
rater to evaluate chronic residuals of the disease separately.
We agree and have added a note following the rating criteria for
diagnostic code 7700, anemias, to instruct the rater to evaluate the
complications of pernicious anemia, such as dementia or peripheral
neuropathy, separately. These complications occur often enough that
this instruction is warranted to ensure consistent evaluations.
Furthermore, the note is consistent with instructions for other
conditions throughout the schedule, such as lupus erythematosus,
(diagnostic code 6350), leprosy (Hansen's Disease), (6302), and
rheumatoid arthritis, (5002), which instruct the rater to evaluate
residuals separately.
The proposed levels of evaluations for anemia, diagnostic code
7700, were based solely on hemoglobin levels. One commenter noted that
the key determination in evaluating the degree of disability is not the
laboratory value, but the primary diagnosis and compensatory level of
the cardiovascular system. He felt, therefore, that the purely
objective criteria of hemoglobin levels are inadequate for rating
anemia unless clinical findings are also considered.
The normal level of hemoglobin differs by sex, with men having a
higher level, on the average, than women. Individuals also vary in the
possible compensatory mechanisms, such as tachycardia, brought to bear
when anemia develops. Along with the level of hemoglobin, the speed of
onset of the anemia helps determine the symptoms. We agree, therefore,
that levels of hemoglobin in combination with clinical findings will
allow a better
[[Page 49226]]
assessment of disability than either alone. We have revised the
criteria to include clinical findings such as a weakness, easy
fatigability, headaches, lightheadedness, or shortness of breath on
mild exertion. We have also added a 10 percent evaluation because there
are patients with a hemoglobin level of 10gm/100ml or less who also
have symptoms such as weakness, easy fatigability or headaches. Those
with a hemoglobin level of 10gm/100ml or less who are asymptomatic will
be assigned a zero percent evaluation. This provide a clear separation
between the requirements for the 10% and 0% levels since they require
the same hemoglobin levels.
The proposed evaluation formulas for agranulocytosis, diagnostic
code 7702, and aplastic anemia, diagnostic code 7716, provided for 100,
50 and zero percent evaluations. One commenter suggested that there
should be a 60 percent evaluation level.
We have reviewed the proposed evaluation criteria for
agranulocytosis (diagnostic code 7702) and apastic anemia (diagnostic
code 7716) and agree that a wider range of evaluation levels is
warranted because of the range of possible manifestations of the
conditions. We have, therefore, redesignated the evaluations proposed
as 50 percent disabling for both of these disabilities as 60 percent
disabling, and added 30 percent and 10 percent evaluation levels. The
30 percent levels are based on the number of transfusions required or
infections that occur, and the 10 percent levels are based on the need
for continuous medication for control. We have removed the 0 percent
evaluation level because a noncompensable evaluation can always be
assigned under Sec. 4.31 of this section whenever the residuals
required for a compensable evaluation are not shown. Retaining the 0
percent evaluation level would be redundant. These changes provide a
realistic range of evaluations and clear guidelines for assigning those
evaluations.
The proposed regulation provided an indefinite total evaluation for
aplastic anemia, diagnostic code 7716, following bone marrow
transplant, with mandatory VA examination six months following hospital
discharge, with any change based on that examination subject to the
provisions of Sec. 3.105(e). This is consistent with other diseases of
this type, such as malignancies, leukemia and anemia.
One commenter stated that the post-hospital stabilization period
for aplastic anemia, diagnostic code 7716, should be one year, not six
months. We do not concur. A person who has required hospitalization for
aplastic anemia would not be discharged unless stable, and it is
reasonable to examine the patient six months thereafter to verify that
the condition has indeed stabilized. The purpose of the VA examination
six months after hospital discharge is to gather medical information
regarding the actual level of disability. Therefore, there would be no
possibility of an immediate reduction. Should the examination
demonstrate that the condition remains totally disabling, the
evaluation will not be changed.
The proposed evaluation formula for leukemia, diagnostic code 7703,
includes instructions to otherwise rate as anemia (code 7700) or
aplastic anemia (code 7716), whichever would result in the greater
benefit, and a note instructing the rater to continue the 100 percent
evaluation indefinitely following the cessation of surgical, X-ray,
antineoplastic chemotherapy or other therapeutic procedures, with a
mandatory BA examination six months following hospital discharge.
One commenter stated that evaluations less than 100 percent for
leukemia should not be based on diagnostic codes 7700 or 7716.
We do not agree. Using the evaluation criteria from other codes is
common in the rating schedule and this is consistent with that
practice. The symptoms and treatments in the criteria for anemia and
aplastic anemia are the same as those for leukemia and the percentage
levels reflect the amount of disability.
One commenter pointed out an inconsistency between the proposed
criteria for a 100 percent evaluation and the NOTE: the NOTE
establishes the length of time that a 100 percent evaluation will
continue after surgery or the termination of radiation, chemotherapy or
other therapeutic procedure, whereas the criteria for a 100 percent
evaluation require ``intensive treatment'' such as periodic irradiation
or transfusion. The language in the evaluation criteria was retained
from the 1945 rating schedule. Since ``intensive treatment'' might be
construed as being more restrictive than the language of the NOTE--an
effect we did not intend--we have revised that language to indicate
that a 100 percent evaluation will be assigned while the disease is
active or during a treatment phase. That language not only eliminates
the perceived disparity between the evaluation criteria and the Note
under diagnostic code 7703, it is also consistent with the language in
the evaluation criteria for Hodgkin's disease (diagnostic code 7709)
and non-Hodgkin's lymphoma (7715).
We have reworded the NOTE following code 7703, leukemia, for
clarity. No substantive change is intended.
One commenter stated that polycythemia vera, code 7704, warrants a
higher evaluation than 40 percent if myelosuppressive therapy is
necessary.
Polycythemia vera is a readily managed disorder in most patients
that can remain asymptomatic for long periods. Although inadequate
management of the red cell mass can result in both thrombotic and
hemorrhagic complications, control of blood volume and viscosity with
the use of phlebotomy, supplemented when indicated with the use of
myelosuppression, can ensure most patients with polycythemia vera a
prolonged period of relatively symptom-free survival. (Cecil, Textbook
of Medicine, 19th edition, 1992, pages 925-29.) On the other hand,
certain myelosuppressants, such as P32 and chlorambucil, can have
severe side effects and possibly lead to the development of leukemia in
polycythemia patients. On the basis of this comment, we have revised
the evaluation criteria for polycythemia by adding a 100 percent
evaluation during periods of myelosuppressive therapy and for three
months after completion of the therapy. Further, we have revised the
proposed criteria for the 40 percent evaluation, which will now be
assigned when the condition is controlled by phlebotomy, and added a 10
percent evaluation. As a result, a total evaluation will be assigned
when the disease is active and the patient is being treated with
myelosuppressants, a 40 percent evaluation will be assigned when the
disease is controlled with phlebotomy, and a 10 percent evaluation will
be assigned when the condition is stabilized with or without
medication. We have removed the 0 percent level since a noncompensable
evaluation can be assigned under Sec. 4.31 of this section at any time
when required residuals are not shown. Retaining the 0 percent
evaluation level would be redundant. In our judgment, these changes
will provide evaluations which accurately reflect the levels of this
disability.
The same commenter suggested that the frequency of phlebotomies
should be evaluated the same as the frequency of blood transfusions for
aplastic anemia (diagnostic code 7716).
Phlebotomy, the removal of blood, is a different procedure than
transfusion, the injection of blood. Different risks are involved and
the amount of time before symptoms are resolved is dramatically
different. Phlebotomy provides rapid
[[Page 49227]]
remission of symptoms. Transfusions, on the other hand, may have to be
repeated several times before the desired results are attained, and
even then it may be days or weeks before symptoms completely disappear.
For these reasons, we do not believe that phlebotomy warrants an
evaluation equivalent to that assigned based on transfusions.
One commenter noted that hypertension and gout are common
complications of polycythemia vera and suggested that in the note
following the evaluation formula they be mentioned along with stroke
and thrombotic disease as complications to be rated separately.
We agree and have included these additional conditions in the note
following diagnostic code 7704, polycythemia vera.
One commenter, noting that the criteria for non-total ratings for
thrombocytopenia under diagnostic code 7705 specify that there be no
bleeding, suggested that the 100 percent evaluation be assigned during
periods of active bleeding.
We agree and have revised the criteria for the 100 percent
evaluation to require that there be active bleeding. When a patient
with thrombocytopenia is actively bleeding, he or she would be under
close medical supervision, unable to work and totally disabled.
Requiring that there be active bleeding for the 100 percent evaluation
level clearly separates the total evaluation from lower evaluations,
which specifically require no bleeding.
One commenter suggested that there should be a total rating
assigned for thrombocytopenia during an appropriate stabilization and
observation period, with an examination to follow.
We do not concur. The periods of thrombocytopenic bleeding are
relatively short, but require aggressive medical management. If the
veteran requires prolonged hospitalization (over 21 days), a total
evaluation would be assigned under the provisions of Sec. 4.29. If
medically indicated, a period of convalescence would be assigned under
the provisions of Sec. 4.30. Since an exacerbation of this severity is
closely followed by a medical professional, records of observation and
treatment which are normally available are adequate to evaluate any
progression of the disease. If they are not, an examination would be
requested.
One commenter stated that the convalescence periods for Hodgkin's
disease, diagnostic code 7709, and non-Hodgkin's lymphoma, diagnostic
code 7715, should not be reduced to six months.
The commenter appears to have misinterpreted the proposed rule to
mean that a convalescent evaluation will be terminated six months after
treatment has ceased. However, under the proposed change there cannot
be a reduction at six months because the process of re-evaluation does
not begin until that time. First, there must be a VA examination six
months after completion of treatment. Then, if the results of that or
any subsequent examination warrant a reduction in evaluation, the
reduction will be implemented under the provisions of 38 CFR 3.105(e),
which requires 60 days notice before VA reduces an evaluation and an
additional 60 days notice before the reduced evaluation takes effect.
The revision not only provides for a current examination to assure that
all residuals are noted, but also offers the veteran more
contemporaneous notice of any proposed action and expands the veteran's
opportunity to present evidence shown that the proposed action should
not be taken. In our judgment this method will better ensure that
actual side-effects and recuperation times are taken into account
because they will be noted on the required VA exam.
One commenter stated that the provisions for an examination six
months after cessation of treatment as in Hodgkin's and non-Hodgkin's
lymphoma should be applied under malignant neoplasms of the
genitourinary system (code 7528) and the gynecological system (code
7627). The revisions of these systems have been made since this comment
was received and the rating procedure of evaluating malignancies of
these systems based on an examination six months following cessation of
treatment was implemented.
We have made a number of editorial changes, primarily of syntax and
punctuation, throughout the final rule. These changes are intended to
clarify the rating criteria and represent no substantive amendment.
The Secretary hereby certifies that this regulatory amendment will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. The reason for this certification is that this
amendment would not directly affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 601(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
This regulatory action has been reviewed by the Office of
Management and Budget under Executive Order 12866.
List of Subjects in 38 CFR Part 4
Persons with Disabilities, Pensions, Veterans.
Approved: June 13, 1995.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, 38 CFR part 4 is amended
as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
1. The authority citation for part 4 is revised to read as follows:
Authority: 38 U.S.C. 1155.
Subpart B--Disability Ratings
2. Section 4.117 is revised to read as follows:
Sec. 4.117 Schedule of ratings--hemic and lymphatic systems.
Rating
7700 Anemia, hypochromic-microcytic and megaloblastic, such
as iron-deficiency and pernicious anemia:
Hemoglobin 5gm/100ml or less, with findings such as high
output congestive heart failure or dyspnea at rest....... 100
Hemoglobin 7gm/100ml or less, with findings such as
dyspnea on mild exertion, cardiomegaly, tachycardia (100
to 120 beats per minute) or syncope (three episodes in
the last six months)..................................... 70
Hemoglobin 8gm/100ml or less, with findings such as
weakness, easy fatigability, headaches, lightheadedness,
or shortness of breath................................... 30
Hemoglobin 10gm/100ml or less with findings such as
weakness, easy fatigability or headaches................. 10
Hemoglobin 10gm/100ml or less, asymptomatic............... 0
[[Page 49228]]
Note: Evaluate complications of pernicious anemia, such as dementia or
peripheral neuropathy, separately.
7702 Agranulocytosis, acute:
Requiring bone marrow transplant, or; requiring
transfusion of platelets or red cells at least once every
six weeks, or; infections recurring at least once every
six weeks................................................ 100
Requiring transfusion of platelets or red cells at least
once every three months, or; infections recurring at
least once every three months............................ 60
Requiring transfusion of platelets or red cells at least
once per year but less than once every three months, or;
infections recurring at least once per year but less than
once every three months.................................. 30
Requiring continuous medication for control............... 10
Note: The 100 percent rating for bone marrow transplant shall be
assigned as of the date of hospital admission and shall continue with a
mandatory VA examination six months following hospital discharge. Any
change in evaluation based upon that or any subsequent examination
shall be subject to the provisions of Sec. 3.105(e) of this chapter.
7703 Leukemia:
With active disease or during a treatment phase........... 100
Otherwise rate as anemia (code 7700) or aplastic anemia
(code 7716), whichever would result in the greater
benefit.
Note: The 100 percent rating shall continue beyond the cessation of any
surgical, radiation, antineoplastic chemotherapy or other therapeutic
procedures. Six months after discontinuance of such treatment, the
appropriate disability rating shall be determined by mandatory VA
examination. Any change in evaluation based upon that or any subsequent
examination shall be subject to the provisions of Sec. 3.105(e) of this
chapter. If there has been no recurrence, rate on residuals.
7704 Polycythemia vera:
During periods of treatment with myelosuppressants and for
three months following cessation of myelosuppressant
therapy.................................................. 100
Requiring phlebotomy...................................... 40
Stable, with or without continuous medication............. 10
Note: Rate complications such as hypertension, gout, stroke or
thrombotic disease separately.
7705 Thrombocytopenia, primary, idiopathic or immune:
Platelet count of less than 20,000, with active bleeding,
requiring treatment with medication and transfusions..... 100
Platelet count between 20,000 and 70,000, not requiring
treatment, without bleeding.............................. 70
Stable platelet count between 70,000 and 100,000, without
bleeding................................................. 30
Stable platelet count of 100,000 or more, without bleeding 0
7706 Splenectomy............................................. 20
Note: Rate complications such as systemic infections with encapsulated
bacteria separately.
7707 Spleen, injury of, healed.
Rate for any residuals.
7709 Hodgkin's disease:
With active disease or during a treatment phase........... 100
Note: The 100 percent rating shall continue beyond the cessation of any
surgical, radiation, antineoplastic chemotherapy or other therapeutic
procedures. Six months after discontinuance of such treatment, the
appropriate disability rating shall be determined by mandatory VA
examination. Any change in evaluation based upon that or any subsequent
examination shall be subject to the provisions of Sec. 3.105(e) of this
chapter. If there has been no local recurrence or metastasis, rate on
residuals.
7710 Adenitis, tuberculous, active or inactive.
Rate under Secs. 4.88c or 4.89 of this part, whichever is
appropriate.
7714 Sickle cell anemia:
With repeated painful crises, occurring in skin, joints,
bones or any major organs caused by hemolysis and
sickling of red blood cells, with anemia, thrombosis and
infarction, with symptoms precluding even light manual
labor.................................................... 100
With painful crises several times a year or with symptoms
precluding other than light manual labor................. 60
Following repeated hemolytic sickling crises with
continuing impairment of health.......................... 30
Asymptomatic, established case in remission, but with
identifiable organ impairment............................ 10
Note: Sickle cell trait alone, without a history of directly
attributable pathological findings, is not a ratable disability. Cases
of symptomatic sickle cell trait will be forwarded to the Director,
Compensation and Pension Service, for consideration under Sec.
3.321(b)(1) of this chapter.
7715 Non-Hodgkin's lymphoma:
With active disease or during a treatment phase........... 100
Note: The 100 percent rating shall continue beyond the cessation of any
surgical, radiation, antineoplastic chemotherapy or other therapeutic
procedures. Six months after discontinuance of such treatment, the
appropriate disability rating shall be dtermined by mandatory VA
examination. Any change in evaluation based upon that or any subsequent
examination shall be subject to the provisions of Sec. 3.105(e) of this
chapter. If there has been no local recurrence or metastasis, rate on
residuals.
7716 Aplastic anemia:
Requiring bone marrow transplant, or; requiring
transfusion of platelets or red cells at least once every
six weeks, or; infections recurring at least once every
six weeks................................................ 100
Requiring transfusion of platelets or red cells at least
once every three months, or; infections recurring at
least once every three months............................ 60
Requiring transfusion of platelets or red cells at least
once per year but less than once every three months, or;
infections recurring at least once per year but less than
once every three months.................................. 30
Requiring continuous medication for control............... 10
Note: The 100 percent rating for bone marrow transplant shall be
assigned as of the date of hospital admission and shall continue with a
mandatory VA examination six months following hospital discharge. Any
change in evaluation based upon that or any subsequent examination
shall be subject to the provisions of Sec. 3.105(e) of this chapter.
[FR Doc. 95-23515 Filed 9-21-95; 8:45 am]
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