[Federal Register Volume 61, Number 196 (Tuesday, October 8, 1996)]
[Rules and Regulations]
[Pages 52695-52702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25569]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AF01
Schedule for Rating Disabilities; Mental Disorders
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the sections of the Department of
Veterans Affairs (VA) Schedule for Rating Disabilities pertaining to
Mental Disorders. The intended effect of this action is to update the
portion of the rating schedule that addresses mental disorders to
ensure that it uses current medical terminology and unambiguous
criteria, and that it reflects medical advances that have occurred
since the last review.
EFFECTIVE DATE: This amendment is effective November 7, 1996.
FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,
Regulations Staff (213A), Compensation and Pension Service, Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Avenue, NW., Washington, DC 20420, (202) 273-7230.
SUPPLEMENTARY INFORMATION: VA published in the Federal Register of
October 26, 1995 (60 FR 54825-31) a proposal to amend 38 CFR 4.16 and
4.125 through 4.132, those sections of the rating schedule that address
mental disorders. Interested persons were invited to submit written
comments on or before December 26, 1995. We received comments from the
American Legion, the Disabled American Veterans, the Veterans of
Foreign Wars, the Vietnam Veterans of America, the American
Psychological Association, the American Psychiatric Association, the
Association of VA Chief Psychologists, and a concerned individual.
Two commenters felt that sleep and sexual disorders should be
included in the rating schedule because they may affect employability
and functioning.
Narcolepsy, a sleep disorder, is evaluated under diagnostic code
(DC) 8108 in the neurological section of the schedule. We have
published a proposed revision to the respiratory section of the
schedule in the Federal Register of January 19, 1993 (58 FR 4962-69)
that would add a diagnostic code (6846) and evaluation criteria for
sleep apnea syndromes, another of the sleep disorders. However, in our
judgment, other sleep disorders or sexual disorders would be service-
connected so infrequently that they do not warrant separate diagnostic
codes and evaluation criteria in the schedule. Any that are determined
to be service-connected can be evaluated under ``other and unspecified
neurosis'' (DC 9410) or other appropriate analogous condition and be
evaluated under the general rating formula for mental disorders. (See
38 CFR 4.20.)
Another commenter suggested that we establish zero-percent
evaluations for sexual dysfunction and personality disorders so that,
although VA would not compensate for the conditions, they could be
service-connected for treatment purposes.
A veteran is entitled to VA medical care for any mental disorder,
including any sexual disorder, that is service-connected, i.e., is
incurred in, or aggravated by, active military service. Whether a
disability is service-connected, for treatment or compensation
purposes, must be determined on a case by case basis. The determination
is not based on whether the condition is included in the rating
schedule; it is made under the VA regulations beginning at 38 CFR
3.303. Therefore, adding sexual dysfunction and personality disorders
to the rating schedule could not have the effect of conferring service
connection for treatment purposes, as the commenter believes, and we
make no change based on this comment.
One commenter suggested that personality disorders should be
included in the rating schedule.
As 38 CFR 4.1 emphasizes, the rating schedule is primarily a guide
in the evaluation of disability resulting from diseases or injuries
encountered as a result of or incident to military service. Since 38
CFR 3.303(c) specifically states that personality disorders are not
diseases or injuries within the meaning of applicable legislation, they
cannot be service-connected, and it would be inappropriate to include
them in the rating schedule.
[[Page 52696]]
One commenter stated that the notice of proposed rulemaking erred
in stating that DSM-IV (Diagnostic and Statistical Manual of Mental
Disorders, 4th edition) categorizes dementia associated with alcoholism
and drugs as subtypes of dementia due to a general medical condition.
The commenter points out that DSM-IV has separate categories for
dementias associated with alcoholism and other drugs and suggested that
VA establish a category for substance-induced dementia.
We proposed that the title of DC 9326 be ``Dementia due to other
neurologic or general medical conditions (endocrine disorders,
metabolic disorders, drugs, alcohol, poisons, Pick's disease, brain
tumors, etc.).'' In response to this comment, and for the sake of
greater accuracy, we have revised the title to ``Dementia due to other
neurologic or general medical conditions (endocrine disorders,
metabolic disorders, Pick's disease, brain tumors, etc.) or that are
substance-induced (drugs, alcohol, poisons).''
Another commenter suggested that by addressing the 12 dementias
described in DSM-IV under only six categories, VA ignores important
differences between specific types of dementias, such as whether or not
they are treatable.
The six categories that we proposed, which are representative
examples of the broad range of causes of dementias, are adequate for
VA's purpose, which is to evaluate the severity of dementias when they
occur. Since all dementias are evaluated under the General Rating
Formula for Mental Disorders, increasing the number of categories would
not affect evaluations.
The same commenter recommended that we retain the previous title of
DC 9310, ``dementia, primary, degenerative,'' because it is more
accurate and appropriate than ``dementia of the Alzheimer's type,'' as
DSM-IV lists the condition.
DSM-IV is the basis for diagnosing and classifying mental disorders
in the United States. Examination reports from both VA and non-VA
practitioners will generally use the nomenclature adopted in DSM-IV,
and it is important that the schedule use the same nomenclature
whenever possible. Since the commenter offered no other reason for
deviating from DSM-IV in this instance, we have retained the term
``dementia of the Alzheimer's type'' as proposed.
One commenter recommended that we retain the directions formerly
found in Secs. 4.125 and 4.126, which stated that the psychiatric
nomenclature employed is based upon the Diagnostic and Statistical
Manual of Mental Disorders; that it is imperative that rating personnel
familiarize themselves thoroughly with this manual; and, that a
disorder will be diagnosed in accordance with the APA manual (DSM).
The revised mental disorders sections contain similar directives
about the use of DSM-IV as the former schedule had about DSM-III. If
the diagnosis of a mental disorder does not conform to DSM-IV, or is
not supported by the findings on the examination report, Sec. 4.125(a)
requires the rating agency to return the report to the examiner to
substantiate the diagnosis. Further, a note in Sec. 4.130 states that
the nomenclature in the schedule is based on DSM-IV and that rating
agencies must be thoroughly familiar with this manual to properly
implement the directives in Sec. 4.125 through Sec. 4.129 and to apply
the general rating formula for mental disorders in Sec. 4.130. This
information is direct and unambiguous, and therefore there is no need
to include the same material in Secs. 4.125 and 4.126.
Three commenters suggested the rating schedule cite only ``the
current edition of the DSM'' rather than ``DSM-IV,'' which they felt
would eliminate the need for a regulatory change when a new edition is
published.
VA will need to study future revisions of the DSM to determine
whether they warrant making changes in the schedule. However, such
changes would require proper notice to the public through publication
for review and comment in the Federal Register; having the rating
schedule refer only to the ``current edition'' would not give
sufficient notice under the Administrative Procedures Act. Also, VA
does not avoid the need to revise the rating schedule by referring to
the ``current edition'' of the DSM. This revision, for example, makes
substantive revisions to the schedule itself based upon DSM-IV. If the
regulations were to refer to the ``current edition'' of DSM, and
another edition was published without the schedule being revised in
accordance with that edition, the regulations would be internally
inconsistent.
Three commenters objected to the proposed language in Sec. 4.126(a)
that would require the rating agency to assign an evaluation based on
all the evidence of record ``rather than on the examiner's assessment
of the level of disability at the moment of the examination.'' Two
commenters suggested that revising the phrase to ``rather than solely
on the examiner's assessment of the level of disability at the moment
of the examination'' might be clearer.
Since such a change might more clearly indicate that the examiner's
assessment is a significant, but not the only, factor in determining
the level of disability, we have revised the sentence as the commenters
suggested.
One commenter suggested two changes to the proposed Sec. 4.126(a).
Because the commenter felt the proposed language does not clearly
instruct the adjudicator to assess current findings in light of the
history of the disability, the commenter recommended that the
regulation direct the rating agency to assign an evaluation based on
all evidence of record ``as it bears on current occupational and social
impairment rather than solely on isolated examination findings which
may only represent episodic changes.'' The commenter also suggested
that in order to prevent rating agencies from overestimating the value
of short periods of remission, we modify the language to require rating
agencies to consider the veteran's capacity for adjustment during
periods of sustained remission.
The language proposed for Sec. 4.126(a) reinforces Sec. 4.2, which
requires the rating agency to interpret reports of examination in light
of the entire recorded history. Furthermore, Sec. 4.126(a) requires
rating agencies to consider the length of remissions and the veteran's
capacity for adjustment during periods of remission, and to assign an
evaluation based on all evidence of record that bears on occupational
and social impairment. ``Sustained'' is a subjective term that may not
be applied consistently, and, in our judgment, the language as proposed
is more likely to assure that the length of remissions is considered
and given appropriate weight in the context of all evidence of record.
We have, therefore, made no change based on these suggestions.
One commenter opposed the proposed deletion of the statement in
former Sec. 4.130 that ``the examiner's analysis of the
symptomatology'' is one of the ``essentials'' and objected to the
statement in the preamble that VA will no longer rely on a subjective
determination as to the degree of impairment.
The evaluation levels in the proposed general rating formula for
mental disorders are based on the effects of the signs and symptoms of
mental disorders. To be adequate for evaluation purposes under that
formula, an examination report must describe an individual's signs and
symptoms as well as their effects on occupational and social
functioning. In essence, we have restructured the evaluation criteria
so
[[Page 52697]]
that it is the severity of the effects of the symptoms as described by
the examiner that determines the rating. As a result, the statement
previously contained in Sec. 4.130 regarding the examiner's analysis of
symptomatology would be redundant and is no longer necessary. We have
therefore made no changes based on this comment.
Another commenter suggested that the use of the word ``severe'' at
the 70-percent level in the general rating formula for mental disorders
violates the principle that vague, subjective terms should not be used
in the rating schedule. The commenter also contends that the use of
``severe'' by an examining doctor to characterize a mental disorder
will often be used as the sole basis for granting a 70-percent
evaluation because a 70-percent evaluation requires ``severe''
occupational and social impairment. The commenter therefore suggested
that we delete the word ``severe'' in the general rating formula for
mental disorders.
Since it is VA's intent that the evaluation will be determined by
the examiner's description of the signs and symptoms and their effects
rather than by an overall characterization of the condition, we have
deleted the word ``severe'' from the 70-percent criteria in the general
rating formula for mental disorders, as the commenter suggested.
One commenter suggested we require a social and industrial survey
as an integral part of an overall rating evaluation.
A social and industrial survey is not necessary to evaluate every
mental disorder; the information provided by the examiner will
generally be sufficient to determine the proper evaluation. Whether the
additional information provided by a social and industrial survey is
necessary to assure an accurate evaluation is best determined by either
the examiner or rating agency on a case by case basis. Requiring a
survey in every case would serve no purpose and would therefore cause
unwarranted delays in the processing of claims.
One commenter stated that a 10-percent evaluation when symptoms are
controlled by continuous medication is too low to allow for the side
effects of medication, which may themselves be incapacitating.
In our judgment, 10 percent is an adequate evaluation in the
average situation where symptoms of a mental disorder are controlled by
continuous medication. 38 CFR 3.310(a) states that a disability that is
proximately due to a service-connected disease or injury shall be
service-connected and considered as part of the original condition.
Therefore, disabling conditions that result from medication for a
service-connected mental disorder and that warrant more than a ten
percent evaluation can be service-connected and separately evaluated
under an appropriate diagnostic code.
One commenter suggested that we adopt separate rating formulae
tailored to each psychiatric disorder rather than using a general
rating formula for mental disorders as proposed.
Many of the signs, symptoms, and effects of mental disorders are
not unique to specific diagnostic entities, as evidenced by the fact
that the Global Assessment of Functioning Scale in DSM-IV uses a single
set of criteria for assessing psychological, social, and occupational
functioning in all mental disorders. The symptoms in the general rating
formula for mental disorders are representative examples of symptoms
that often result in specific levels of disability. In our judgment,
using a general rating formula for mental disorders is a better way to
assure that mental disorders producing similar impairment will be
evaluated consistently.
One commenter suggested that we evaluate post-traumatic stress
disorder (PTSD) not under a general rating formula for mental disorders
but under a separate formula based on the frequency of symptoms
particular to PTSD, i.e., nightmares, flashbacks, troubling intrusive
memories, uncontrollable rage, and startle response.
The distinctive PTSD symptoms listed by the commenter are used to
diagnose PTSD rather than evaluate the degree of disability resulting
from the condition. Although certain symptoms must be present in order
to establish the diagnosis of PTSD, as with other conditions it is not
the symptoms, but their effects, that determine the level of
impairment. For example, it is not the presence of ``flashbacks,'' per
se, but their effects, such as impaired impulse control, anxiety, or
difficulty adapting to stressful situations, that determine the
evaluation. We have, therefore, made no changes based on this
suggestion.
One commenter argued that the proposed criteria for a total
evaluation include more symptoms of thought disorders than of mood
disorders, and, as a result, mood disorders are less likely than
thought disorders to be evaluated as totally disabling.
As previously discussed, it is the severity of the effects of a
mental disorder that determine the rating. To be assigned a 100 percent
rating, a mental disorder must cause total occupational and social
impairment. Mood disorders that are characterized by grossly
inappropriate behavior, persistent danger of hurting self or others, or
intermittent inability to perform activities of daily living, may cause
total occupational and social impairment in some individuals. Since the
evaluation criteria would clearly support a total evaluation for a mood
disorder under those circumstances, we make no change based on this
comment.
Another commenter suggested that we determine evaluation levels on
the basis of an individual's earnings. For example, if there were no
gainful employment, or if earnings did not exceed $3600 per year over a
two year period, a disability would be considered totally disabling.
Ratings are based primarily upon the average impairment in earning
capacity, that is, upon the economic or industrial handicap which must
be overcome and not from individual success in overcoming it (see 38
CFR 4.15). Defining levels of disability for mental disorders in terms
of an individual's earnings would be inconsistent with that principle
and, furthermore, would not take into account other variables that
might affect earnings, such as the presence and severity of other
service-connected or non-service-connected disabilities, differences in
the prevailing wage in different localities, part time employment, etc.
For these reasons, it is not feasible to evaluate mental disabilities
based on the veteran's earnings.
One commenter said that the evaluation criteria for the 50-percent
and the 70-percent levels are too complicated and will therefore be
difficult to apply; however, the commenter offered no alternative
criteria for us to consider.
The criteria in the general rating formula for mental disorders
include examples and indicate specific effects of social and
occupational impairment for various evaluation levels. The 50-percent
level, for example, requires ``reduced reliability and productivity,''
while the 70-percent level requires ``deficiencies in most areas, such
as work, school, family relations, judgment, thinking, or mood.''
Examples of signs and symptoms that are typically associated with that
level of impairment are listed at each level. This formula offers
sufficient guidance to the rating agency to assure consistent
evaluations, but not so much detail that it is impractical or
inflexible. Since the commenter offered no alternative method of
evaluation for us to consider, we have adopted the general rating
formula as proposed.
[[Page 52698]]
One commenter suggested that Sec. 4.127 be revised to establish
that mental retardation and personality disorders, while not
disabilities for compensation purposes, can be considered in
determining whether a veteran is permanently and totally disabled for
non-service-connected pension purposes.
As proposed, Sec. 4.127 would have stated that mental retardation
and personality disorders would not be considered as ``disabilities
under the terms of the schedule.'' For the sake of clarity, we have
revised the proposed language of Sec. 4.127 to state that those
conditions are not ``diseases or injuries for compensation purposes,
and, except as provided in Sec. 3.310(a) of this chapter, disability
resulting from them may not be service-connected.''
One commenter said that Sec. 4.127 should explain that personality
disorders may be service-connected secondary to epilepsy and other
conditions.
38 CFR 3.310(a) states that a disability that is proximately due to
or the result of a service-connected disease or injury shall be service
connected and considered part of the original condition. Therefore,
organic personality disorders that develop secondary to service-
connected head trauma, epilepsy, etc., (called ``personality change due
to a general medical condition'' in DSM-IV) will be service-connected
as secondary to those conditions and evaluated under the general rating
formula for mental disorders. To reinforce that principle, we have
added the phrase, ``except as provided in Sec. 3.310(a) of this
chapter,'' to Sec. 4.127, as discussed above. For the sake of clarity,
we have also revised the title of DC 9327, organic mental disorder,
other, to include ``personality change due to a general medical
condition.''
The former Sec. 4.127 addressed mental deficiency and personality
disorders and stated that ``superimposed psychotic disorders developing
after enlistment, i.e., mental deficiency with psychotic disorder, or
personality disorder with psychotic disorder, are to be considered as
disabilities analogous to, and ratable as, schizophrenia, unless
otherwise diagnosed.'' We proposed to revise Sec. 4.127 to state that a
mental disorder that is superimposed upon, but clearly separate from,
mental retardation or a personality disorder may be a disability for VA
compensation purposes.
Two commenters contend that it is not feasible to attribute signs
and symptoms to one of two or more coexisting conditions, and another
commenter submitted a medical statement addressing the potential
difficulty of such an undertaking.
Our intent in proposing the revision was to clarify that any mental
disorders, not only psychotic disorders, that are incurred or
aggravated in service may be disabilities for VA compensation purposes,
even if superimposed upon mental retardation or a personality disorder.
In view of the commenters' concerns, however, and in order to prevent
any misunderstanding, we have revised this section. We deleted ``a
mental disorder that is superimposed upon, but clearly separate from,
mental retardation or a personality disorder may be a disability for VA
compensation purposes'' in Sec. 4.127 and substituted the sentence,
``However, disability resulting from a mental disorder that is
superimposed upon mental retardation or a personality disorder may be
service-connected.'' The need to distinguish the effects of one
condition from those of another is not unique to mental disorders, but
occurs whenever two conditions, one service-connected and one not,
affect similar functions or anatomic areas. When it is not possible to
separate the effects of the conditions, VA regulations at 38 CFR 3.102,
which require that reasonable doubt on any issue be resolved in the
claimant's favor, clearly dictate that such signs and symptoms be
attributed to the service-connected condition.
One commenter stated that the proposed change to Sec. 4.127
precludes personality disorders from being considered as part of a
service-connected disability, which the commenter felt represented an
arbitrary change.
The previous schedule merely directed that psychotic disorders
superimposed upon mental deficiency or personality disorder be
considered analogous to, and ratable as, schizophrenia. It did not
address how to carry out the evaluation, or specifically how to assess
the signs and symptoms of the preexisting condition. The revised
Sec. 4.127 represents no change in rating procedures, except for
expanding this provision to include all mental disorders. As explained
above, procedures for determining an evaluation in such cases are not
unique to mental disorders and have not been changed.
One commenter felt that the development of a mental disorder during
service should establish aggravation of any preexisting personality
disorder, for purposes of disability compensation; another felt that a
personality disorder that worsens during service could affect
employability and thus warrant disability compensation.
Section 4.127 establishes that mental retardation and personality
disorders are not diseases or injuries for VA compensation purposes and
that disability resulting from them may not be service-connected.
Service connection of personality disorders, whether on a direct basis
or by aggravation, is therefore prohibited, and we have made no change
based on these comments.
The previous rating schedule stated that social inadaptability was
to be evaluated only as it affected industrial inadaptability and was
not to be used as the sole basis for assigning a percentage evaluation
(Sec. 4.129). We proposed to retain this concept by stating in
Sec. 4.126(b) that the rating agency will consider the extent of social
impairment, but shall not assign an evaluation solely on the basis of
social impairment. Three commenters addressed this issue.
One commenter suggested that we revise Sec. 4.126(b) to place
greater emphasis on social impairment as a good indicator of the level
of industrial impairment.
The evaluation criteria in the general rating formula for mental
disorders include facets of both occupational and social impairment,
and both may be taken into consideration in the evaluation of a mental
disorder. Revision of Sec. 4.126(b) to place greater emphasis on social
impairment is therefore unnecessary because the extent of social
impairment is an inherent part of the evaluation criteria. We have
therefore made no revision based on this comment.
Two commenters suggested that we revise Sec. 4.126(b) to allow
service connection at zero percent for conditions that produce social
impairment, but no occupational impairment, so that veterans would be
eligible for VA medical treatment.
As previously discussed, service-connected conditions are entitled
to VA medical care, but whether a condition is service-connected is
determined under the VA regulations beginning at 38 CFR 3.303, not
under the rating schedule. It would therefore be inappropriate to adopt
this suggestion.
Two commenters urged that VA include substance abuse disorders in
the disability rating schedule because they frequently affect
employability, and any mental disorder that affects employment should
be covered by the rating system.
The most common substance abuse disorders are abuse of alcohol and
drugs. Since they are addressed
[[Page 52699]]
elsewhere in VA regulations (see 38 CFR 3.1 and 3.301(a)), they need
not be included in the rating schedule.
Two commenters felt that the term ``psychic trauma'' in the title
of Sec. 4.129, Mental disorders due to psychic trauma, connotes
extrasensory or paranormal influences on mental processes and suggested
that we substitute the term ``traumatic stress disorders.''
Based on this suggestion, we have retitled Sec. 4.129 as ``Mental
disorders due to traumatic stress.''
As proposed, Sec. 4.125 would require a rating agency to determine
whether a change in diagnosis is a progression of a prior diagnosis, a
correction of an error in a previous diagnosis, or the development of a
new and separate condition. Two commenters suggested that a fourth
reason for a change in diagnosis, the use of a new diagnostic term not
previously available to rating agencies, be added to the list.
A ``new diagnostic term not previously available to rating
agencies'' necessarily implies a diagnostic term that has evolved since
publication of DSM-IV. 38 CFR 4.125(a) requires that the diagnosis of a
mental disorder must conform to DSM-IV. Therefore, the only diagnostic
terms for mental disorders that are acceptable for rating purposes are
those in DSM-IV. Appendices in DSM-III, DSM-III-R, and DSM-IV highlight
changes in terminology from the previous DSM editions, and rating
agencies may refer to them to reconcile differences from earlier
terminology, if necessary. However, diagnostic terms that postdate DSM-
IV are not acceptable for rating purposes, and we make no change based
on this comment.
If a mental disorder has been assigned a total evaluation due to a
continuous period of hospitalization lasting six months or more, we
proposed to require in Sec. 4.128 that the rating agency continue the
total evaluation indefinitely and schedule an examination six months
after the veteran is discharged or released to nonbed care and that a
change in evaluation based on that examination would be subject to the
notice and effective date provisions of 38 CFR 3.105(e). One commenter
suggested that we add references to 38 CFR 3.344, ``Stabilization of
disability evaluations,'' and 3.340, ``Total and permanent total
ratings and unemployability.''
Sections 3.340 and 3.344 are not limited to mental disorders, but
are generally applicable, and, as such, must always be considered by
rating agencies when revising evaluations. The provisions of Sec. 4.128
ensure a total evaluation during a period of adjustment after a lengthy
hospitalization for a mental disorder. Since Secs. 3.340 and 3.344
would not apply until that temporary total evaluation is revised
following the examination required by Sec. 4.128, we make no change
based on this comment.
One commenter suggested that we retain in Sec. 4.129 historical
information about stress-induced disorders formerly found in
Sec. 4.131.
The expository material that we proposed to remove from Sec. 4.131
described the etiology and diagnosis of stress-induced disorders; it
did not set forth VA policy or establish procedures that rating
agencies must follow when evaluating those conditions. That material is
therefore not appropriate in a regulation, and we have made no change
based on this suggestion.
One commenter objected to the proposed removal of language from
Sec. 4.130 specifically stating that two of the most important
determinants of disability are time lost from gainful work and decrease
in work efficiency.
Those principles are reflected in the evaluation criteria of the
general rating formula for mental disorders, which evaluate the signs
and symptoms of mental disorders according to their effects, i.e.,
reduced reliability and productivity, occasional decreases in work
efficiency, intermittent periods of inability to perform occupational
work tasks, etc. Comments about work attendance and efficiency would be
redundant in Sec. 4.130, and we have made no change based on this
comment.
38 CFR 4.16 provides that any veteran unable to secure or follow a
substantially gainful occupation because of service-connected
disabilities will be awarded a total evaluation even though the
schedular evaluation is less than total; it also establishes criteria
for establishing entitlement to such extra-schedular total evaluations.
We proposed to delete Sec. 4.16(c), which stated that mental disorders
meeting certain criteria should be assigned a 100-percent evaluation
under the schedule, rather than an extra-schedular total evaluation.
One commenter did not object to the proposed deletion of Sec. 4.16(c),
but noted that, for a veteran with a single disability, Sec. 4.16(a)
requires that the disability be 60 percent or more disabling to
establish entitlement to a total evaluation due to unemployability. The
commenter stated that because there is no 60-percent evaluation level
in the general rating formula for mental disorders, veterans with
mental disorders would be disadvantaged. The commenter recommended that
we revise Sec. 4.16(a) to require a 50-percent rating for a single
disability rather than a 60-percent rating, and to state that total
disability ratings shall (rather than may) be assigned when a veteran's
disabilities satisfy specified criteria.
Since revisions to Sec. 4.16(a) and (b), which establish general
criteria for total disability evaluations for compensation because an
individual is unemployable, are beyond the scope of this rulemaking,
which is specific to mental disorders, we make no change. VA is
addressing the issue of individual unemployability, including the
provisions of 38 CFR 4.16(a) and (b), in a separate rulemaking (RIN
2900-AH21). We note, however, that veterans with mental disorders are
not disadvantaged under current Sec. 4.16. Well-established regulatory
procedures in 38 CFR 4.16(b) authorize VA to assign a total evaluation
for unemployability to a veteran with a single disability evaluated
less than 60-percent disabling, if the disability renders the veteran
unemployable.
One commenter encouraged VA to recognize the value of objective
assessment by psychological and neuropsychological tests and
incorporate the use of these diagnostic tools within the disability
rating system.
The use of specific diagnostic tools, such as psychological and
neuropsychological testing, may be requested at the discretion of an
examiner. However, since such tests are primarily for diagnostic,
rather than evaluation, purposes, it would serve no purpose to address
them in the rating schedule, which is a guide to the evaluation of
disabilities.
One commenter suggested that we revise the cross references in 38
CFR 4.13 to reflect changes adopted in this rulemaking.
We have amended 38 CFR 4.13 accordingly.
The same commenter suggested that we revise the note regarding
mental disorders in epilepsies under diagnostic codes 8910-8914 in the
schedule for rating neurological disorders to correct the diagnostic
terms and cross-referenced diagnostic codes.
The note in Sec. 4.124a is included in the schedule for rating
neurological conditions and convulsive disorders and is therefore
beyond the scope of this rulemaking. VA is revising the portion of the
rating schedule that addresses neurological disorders in a separate
rulemaking, and we will address those issues in that revision.
One commenter recommended that VA consider incorporating the
International Classification of Impairments, Disabilities, and
Handicaps (ICIDH) into the VA schedule for rating mental disorders. The
ICIDH, which focuses on functionality, was
[[Page 52700]]
developed and issued by the World Health Organization (WHO), in 1980.
WHO is currently revising it. When the revised version is published, VA
will review it to assess its usefulness for VA rating purposes.
On further review, we have revised the proposed language of
Sec. 4.129 for the sake of clarity and have also updated the term
``rating board'' to ``rating agency'' throughout the mental disorders
sections.
VA appreciates the comments submitted in response to the proposed
rule, which is now adopted as a final rule with the changes noted
above.
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 (RFA), 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. 605(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
This rule has been reviewed under Executive Order 12866 by the
Office of Management and Budget.
The Catalog of Federal Domestic Assistance program numbers are
64.104 and 64.109.
List of Subjects in 38 CFR Part 4
Disability benefits, Individuals with disabilities, Pensions,
Veterans.
Approved: September 9, 1996.
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 continues to read as follows:
Authority: 38 U.S.C. 1155.
Subpart A--[Amended]
2. In Sec. 4.13, the third sentence is revised to read as follows:
Sec. 4.13 Effect of change of diagnosis.
* * * * *
The relevant principle enunciated in Sec. 4.125, entitled
``Diagnosis of mental disorders,'' should have careful attention in
this connection.
* * * * *
Sec. 4.16 [Amended]
3. In Sec. 4.16, paragraph (c) is removed.
Subpart B--[Amended]
4. Section 4.125 is revised to read as follows:
Sec. 4.125 Diagnosis of mental disorders.
(a) If the diagnosis of a mental disorder does not conform to DSM-
IV or is not supported by the findings on the examination report, the
rating agency shall return the report to the examiner to substantiate
the diagnosis.
(b) If the diagnosis of a mental disorder is changed, the rating
agency shall determine whether the new diagnosis represents progression
of the prior diagnosis, correction of an error in the prior diagnosis,
or development of a new and separate condition. If it is not clear from
the available records what the change of diagnosis represents, the
rating agency shall return the report to the examiner for a
determination.
(Authority: 38 U.S.C. 1155)
5. Section 4.126 is revised to read as follows:
Sec. 4.126 Evaluation of disability from mental disorders.
(a) When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric symptoms,
the length of remissions, and the veteran's capacity for adjustment
during periods of remission. The rating agency shall assign an
evaluation based on all the evidence of record that bears on
occupational and social impairment rather than solely on the examiner's
assessment of the level of disability at the moment of the examination.
(b) When evaluating the level of disability from a mental disorder,
the rating agency will consider the extent of social impairment, but
shall not assign an evaluation solely on the basis of social
impairment.
(c) Delirium, dementia, and amnestic and other cognitive disorders
shall be evaluated under the general rating formula for mental
disorders; neurologic deficits or other impairments stemming from the
same etiology (e.g., a head injury) shall be evaluated separately and
combined with the evaluation for delirium, dementia, or amnestic or
other cognitive disorder (see Sec. 4.25).
(d) When a single disability has been diagnosed both as a physical
condition and as a mental disorder, the rating agency shall evaluate it
using a diagnostic code which represents the dominant (more disabling)
aspect of the condition (see Sec. 4.14).
(Authority: 38 U.S.C. 1155)
6. Section 4.127 is revised to read as follows:
Sec. 4.127 Mental retardation and personality disorders.
Mental retardation and personality disorders are not diseases or
injuries for compensation purposes, and, except as provided in
Sec. 3.310(a) of this chapter, disability resulting from them may not
be service-connected. However, disability resulting from a mental
disorder that is superimposed upon mental retardation or a personality
disorder may be service-connected.
(Authority: 38 U.S.C. 1155)
7. Section 4.128 is revised to read as follows:
Sec. 4.128 Convalescence ratings following extended hospitalization.
If a mental disorder has been assigned a total evaluation due to a
continuous period of hospitalization lasting six months or more, the
rating agency shall continue the total evaluation indefinitely and
schedule a mandatory examination six months after the veteran is
discharged or released to nonbed care. A change in evaluation based on
that or any subsequent examination shall be subject to the provisions
of Sec. 3.105(e) of this chapter.
(Authority: 38 U.S.C. 1155)
8. Section 4.129 is revised to read as follows:
Sec. 4.129 Mental disorders due to traumatic stress.
When a mental disorder that develops in service as a result of a
highly stressful event is severe enough to bring about the veteran's
release from active military service, the rating agency shall assign an
evaluation of not less than 50 percent and schedule an examination
within the six month period following the veteran's discharge to
determine whether a change in evaluation is warranted.
(Authority: 38 U.S.C. 1155)
Secs. 4.130 and 4.131 [Removed]
9. Sections 4.130 and 4.131 are removed.
Sec. 4.132 [Redesignated as Sec. 4.130]
10. Section 4.132 is redesignated as Sec. 4.130 and newly
redesignated Sec. 4.130 is revised to read as follows:
Sec. 4.130 Schedule of ratings--mental disorders.
The nomenclature employed in this portion of the rating schedule is
based upon the Diagnostic and Statistical Manual of Mental Disorders,
Fourth Edition, of the American Psychiatric Association (DSM-IV).
Rating agencies must be thoroughly familiar with this manual to
properly implement the directives in Sec. 4.125 through Sec. 4.129 and
[[Page 52701]]
to apply the general rating formula for mental disorders in Sec. 4.130.
The schedule for rating for mental disorders is set forth as follows:
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
Schizophrenia and Other Psychotic Disorders
------------------------------------------------------------------------
9201 Schizophrenia, disorganized type
9202 Schizophrenia, catatonic type
9203 Schizophrenia, paranoid type
9204 Schizophrenia, undifferentiated type
9205 Schizophrenia, residual type; other and unspecified
types
9208 Delusional disorder
9210 Psychotic disorder, not otherwise specified (atypical
psychosis)
9211 Schizoaffective disorder
------------------------------------------------------------------------
Delirium, Dementia, and Amnestic and Other Cognitive Disorders
------------------------------------------------------------------------
9300 Delirium
9301 Dementia due to infection (HIV infection, syphilis,
or other systemic or intracranial infections)
9304 Dementia due to head trauma
9305 Vascular dementia
9310 Dementia of unknown etiology
9312 Dementia of the Alzheimer's type
9326 Dementia due to other neurologic or general medical
conditions (endocrine disorders, metabolic disorders,
Pick's disease, brain tumors, etc.) or that are substance-
induced (drugs, alcohol, poisons)
9327 Organic mental disorder, other (including personality
change due to a general medical condition)
------------------------------------------------------------------------
Anxiety Disorders
------------------------------------------------------------------------
9400 Generalized anxiety disorder
9403 Specific (simple) phobia; social phobia
9404 Obsessive compulsive disorder
9410 Other and unspecified neurosis
9411 Post-traumatic stress disorder
9412 Panic disorder and/or agoraphobia
9413 Anxiety disorder, not otherwise specified
------------------------------------------------------------------------
Dissociative Disorders
------------------------------------------------------------------------
9416 Dissociative amnesia; dissociative fugue;
dissociative identity disorder (multiple personality
disorder)
9417 Depersonalization disorder
------------------------------------------------------------------------
Somatoform Disorders
------------------------------------------------------------------------
9421 Somatization disorder
9422 Pain disorder
9423 Undifferentiated somatoform disorder
9424 Conversion disorder
9425 Hypochondriasis
------------------------------------------------------------------------
Mood Disorders
------------------------------------------------------------------------
9431 Cyclothymic disorder
9432 Bipolar disorder
9433 Dysthymic disorder
9434 Major depressive disorder
9435 Mood disorder, not otherwise specified
------------------------------------------------------------------------
Chronic Adjustment Disorder
------------------------------------------------------------------------
9440 Chronic adjustment disorder
General Rating Formula for Mental Disorders:
Total occupational and social impairment, due to
such symptoms as: gross impairment in thought
processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others;
intermittent inability to perform activities of
daily living (including maintenance of minimal
personal hygiene); disorientation to time or
place; memory loss for names of close relatives,
own occupation, or own name....................... 100
Occupational and social impairment, with
deficiencies in most areas, such as work, school,
family relations, judgment, thinking, or mood, due
to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine
activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function
independently, appropriately and effectively;
impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and
hygiene; difficulty in adapting to stressful
circumstances (including work or a worklike
setting); inability to establish and maintain
effective relationships........................... 70
[[Page 52702]]
Occupational and social impairment with reduced
reliability and productivity due to such symptoms
as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in
understanding complex commands; impairment of
short- and long-term memory (e.g., retention of
only highly learned material, forgetting to
complete tasks); impaired judgment; impaired
abstract thinking; disturbances of motivation and
mood; difficulty in establishing and maintaining
effective work and social relationships........... 50
Occupational and social impairment with occasional
decrease in work efficiency and intermittent
periods of inability to perform occupational tasks
(although generally functioning satisfactorily,
with routine behavior, self-care, and conversation
normal), due to such symptoms as: depressed mood,
anxiety, suspiciousness, panic attacks (weekly or
less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent
events)........................................... 30
Occupational and social impairment due to mild or
transient symptoms which decrease work efficiency
and ability to perform occupational tasks only
during periods of significant stress, or; symptoms
controlled by continuous medication............... 10
A mental condition has been formally diagnosed, but
symptoms are not severe enough either to interfere
with occupational and social functioning or to
require continuous medication..................... 0
------------------------------------------------------------------------
Eating Disorders
------------------------------------------------------------------------
9520 Anorexia nervosa
9521 Bulimia nervosa
Rating Formula for Eating Disorders:
Self-induced weight loss to less than 80 percent of
expected minimum weight, with incapacitating
episodes of at least six weeks total duration per
year, and requiring hospitalization more than
twice a year for parenteral nutrition or tube
feeding........................................... 100
Self-induced weight loss to less than 85 percent of
expected minimum weight with incapacitating
episodes of six or more weeks total duration per
year.............................................. 60
Self-induced weight loss to less than 85 percent of
expected minimum weight with incapacitating
episodes of more than two but less than six weeks
total duration per year........................... 30
Binge eating followed by self-induced vomiting or
other measures to prevent weight gain, or
resistance to weight gain even when below expected
minimum weight, with diagnosis of an eating
disorder and incapacitating episodes of up to two
weeks total duration per year..................... 10
Binge eating followed by self-induced vomiting or
other measures to prevent weight gain, or
resistance to weight gain even when below expected
minimum weight, with diagnosis of an eating
disorder but without incapacitating episodes...... 0
------------------------------------------------------------------------
Note: An incapacitating episode is a period during which bed
rest and treatment by a physician are required.
(Authority: 38 U.S.C. 1155)
[FR Doc. 96-25569 Filed 10-7-96; 8:45 am]
BILLING CODE 8320-01-P
