[Federal Register Volume 59, Number 70 (Tuesday, April 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8555]
[[Page Unknown]]
[Federal Register: April 12, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AF22
Schedule for Rating Disabilities; Diseases of the Ear and Other
Sense Organs
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
its rating schedule regarding evaluation of diseases of the ear and
other sense organs. This amendment is necessary in order to comply with
a General Accounting Office (GAO) study, which recommended that medical
criteria in the rating schedule be reviewed and updated. The intended
effect is to update the portion of the Schedule for Rating Disabilities
pertaining to diseases of the ear and other sense organs to ensure that
it uses current medical terminology and unambiguous criteria for
evaluating these disabilities and reflects recent medical advances.
DATES: Comments must be received on or before June 13, 1994. Comments
will be available for public inspection until June 21, 1994. This
change is proposed to be effective 30 days after the date of
publication of the final rule.
ADDRESSES: Interested persons are invited to submit written comments,
suggestions, or objections regarding this change to the Secretary of
Veterans Affairs (271A), Department of Veterans Affairs, 810 Vermont
Avenue NW., Washington, DC 20420. All written comments received will be
available for public inspection only in the Veterans Services Unit,
room 170, at the above address between the hours of 8 a.m. and 4:30
p.m., Monday through Friday (except holidays), until June 21, 1994.
FOR FURTHER INFORMATION CONTACT: John L. Roberts, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW.,
Washington, DC 20420, (202) 233-3005.
SUPPLEMENTARY INFORMATION: In response to the advance notice of
proposed rulemaking published in the Federal Register on May 2, 1991,
we received comments and suggestions from VA medical doctors and VA
Rating Specialists.
The comments included suggestions that we delete several diagnostic
codes, include diagnostic codes for additional conditions, and change
evaluation criteria for a number of conditions. We have considered all
of these suggestions and implemented several as explained in the
following proposal.
If medical terminology in the rating schedule is outdated, it is
difficult for a rating specialist to accurately associate medical
evidence with the proper evaluation criteria. For that reason, we
propose to update the medical terms which identify diseases of the ear
so that the schedule uses the most common terms.
In addition to publishing an advance notice of proposed rulemaking,
we also contracted with an outside consultant to recommend changes to
the evaluation criteria to ensure that the schedule uses current
medical terminology and unambiguous criteria, and that it reflects
medical advances which have occurred since the last review. The
consultant convened a panel of non-VA specialists to review that
portion of the rating schedule dealing with hearing and ear conditions
in order to formulate recommendations.
We are proposing to adopt many of the recommendations the
contractor submitted. Some recommendations, however, addressed areas
other than evaluation criteria, such as percentage evaluations and
frequency of examinations. Since these suggestions are clearly beyond
the scope of the contract and deal with issues which would affect the
internal consistency of the entire rating schedule rather than one
section, we have generally not adopted them.
We propose to change the terminology describing several of the
conditions in this section for clarity and to reflect current medical
terminology. Under diagnostic code 6201, the term ``otitis media,
catarrhal, chronic'' is outdated and we propose to replace it with
``chronic otitis media, with effusion (serous otitis media).''
Similarly, ``chronic otitis externa'' is the medically preferred term
for ``auditory canal, disease of'' and we propose to use it as the
heading for diagnostic code 6210. Meniere's syndrome (diagnostic code
6205) is often referred to as ``endolymphatic hydrops'' and we propose
to add this designation in parenthesis to the heading of this
diagnostic code. When first included in the rating schedule, the term
``chronic labyrinthitis'' under diagnostic code 6204 was used to
indicate pathology affecting organs of equilibrium. That term, however,
is not used in current medical practice; these conditions are currently
described as vestibular disorders. For this reason, we propose to
change the heading of code 6204 to ``peripheral vestibular disorders.''
Since the word ``neoplasm'' connotes a pathological abnormality better
than the term ``new growth,'' we propose to substitute that word under
diagnostic codes 6208 and 6209, which pertain to malignant and benign
conditions, respectively.
A number of grammatical elements are useful in eliminating
ambiguity and ensuring that the schedule presents rating criteria as
precisely as possible. We are proposing editorial changes, primarily of
syntax and punctuation, throughout this portion of the schedule. These
changes are intended to clarify the rating criteria and represent no
substantive amendment.
Section 4.85 describes the use of tables VI and VIa in the
evaluation of hearing impairment. Table VI is a chart of average
puretone decibel losses and speech discrimination percentages, with
conversion to Roman numeral designations where the values intersect.
Table VIa assigns Roman numeral designations to ranges of average
puretone decibel loss without regard to speech discrimination. The
Roman numeral designations derived from tables VI or VIa for each ear
are then transferred to Table VII and combined to yield diagnostic
codes and disability percentages from 0 to 100. Higher numeric
designations equate to a higher disability percentage. Currently table
VIa is reserved for cases of language impairment or inconsistent test
results, and table VI is used in all other hearing loss ratings.
Based on research and statistical studies conducted by the Veterans
Health Administration, we propose the addition of two new provisions to
Sec. 4.85. The first new provision, designated as Sec. 4.85(d), directs
that the rating specialist choose the higher Roman numeral designation
derived from table VI or VIa whenever puretone thresholds in four of
five specified testing frequencies (500, 1000, 2000, 3000, and 4000
Hertz (Hz)) are 55 decibels hearing level (dBHL) or more. While results
of speech discrimination tests with this type of hearing loss in a
controlled setting are often near normal, they do not reflect the true
extent of difficulty understanding speech in the everyday work
environment, even with the use of hearing aids. Table VIa, which
measures pure tone loss only, will be used as an alternative to the
combination of speech discrimination and pure tone scores for this
particular configuration of hearing loss, but only if it results in a
higher evaluation.
The second new provision (Sec. 4.85(e)) directs that the rating
specialist choose the higher Roman numeral designation derived from
table VI or VIa when puretone thresholds are 30 dBHL or less at
frequencies of 1000 Hz and below, and are 70 dBHL or more at 2000 Hz.
The rating specialist will then elevate the Roman numeral designation
to the next higher number. This type of hearing loss is an extreme
handicap in the presence of any environmental noise, and often cannot
be overcome by the use of hearing aids. It is therefore appropriate to
assign the next higher numeric designation in order to compensate for
this outcome. The intended effect of these two new provisions is to
fairly and accurately assess the hearing disabilities of veterans as
reflected in a real life industrial setting and is thus a
liberalization of the current version of this section of the Schedule.
Table VII currently includes a footnote indicating entitlement to
special monthly compensation when the criteria for a 100 percent
evaluation are met. Entitlement to special monthly compensation under
38 CFR 3.350(a) (38 U.S.C. 1114(k)) for total deafness is only one of
many instances in which hearing loss is a factor in establishing
special monthly compensation. Because the criteria for entitlement to
special monthly compensation contained in 38 CFR 3.350 are extremely
complex, we propose to delete the footnote in favor of a note following
Sec. 4.85 directing rating specialists to refer to Sec. 3.350 when
evaluating any claim for impaired hearing to determine whether the
veteran is entitled to special monthly compensation. We believe that
this will be more effective than the footnote in ensuring complete
review for special monthly compensation.
Sections 4.86, 4.86a, and 4.87 currently deal with tests to
evaluate hearing loss, evidence of hearing loss other than puretone and
controlled speech audiometry, and the definition of impaired auditory
acuity. All three of these provisions are closely related to the
evaluation of hearing loss and should be included in one section. We
propose to state that the evaluations are designed to measure best
uncorrected hearing, reflecting the accepted testing method of
measuring hearing without hearing aids in place. We therefore propose
to reorganize this material so that it is contained in a single
section, Sec. 4.86, and to delete Sec. 4.86a. Section 4.87a has been
redesignated as Sec. 4.87.
Suppurative otitis media is currently classified under diagnostic
code 6200, and mastoiditis under diagnostic code 6206. Since
mastoiditis is often a complication of suppurative otitis media, we
propose to include mastoiditis under diagnostic code 6200 and delete
diagnostic code 6206. Cholesteatoma is another condition associated
with suppurative otitis media, and we propose to include it under
diagnostic code 6200 as well.
The diagnosis of ``otitis interna,'' (diagnostic code 6203), is
archaic and the medical advice we received indicates it is no longer a
recognized category of disability. For this reason, we propose to
delete diagnostic code 6203 from the schedule and to rate the symptoms
attributed to this condition under peripheral vestibular disorders,
code 6204.
We propose to amend the NOTE which currently follows diagnostic
code 6204 to state that objective findings supporting the diagnosis of
disequilibrium are required prior to the assignment of any compensable
evaluation. This requirement will preclude the use of purely subjective
symptoms as the exclusive basis for payment of compensation. The words
``severe,'' ``moderate'' or ``mild'' now precede the evaluation
criteria for compensable evaluations under diagnostic codes 6204 and
6205. These descriptions do not materially help to explain or clarify
the specific evaluation criteria they precede. For that reason, we
propose to delete these labels.
The evaluation criteria under the diagnostic code for Meniere's
disease (6205) currently require ``frequent episodes'' for an
evaluation of 100 percent. We propose to clarify this ambiguous
requirement by specifying that such attacks must occur more than once
weekly for this level of disability since, in our judgment, such
frequency would most reasonably constitute total disablement. We also
propose to include the criteria of deafness to the 60 percent
evaluation, since this is a common symptom of the disease.
The current evaluation criteria for loss of auricle, code 6207, are
unclear because they do not specify the extent of loss required to
qualify for the various evaluation levels. We propose to revise the
criteria to indicate that the 30 percent evaluation requires complete
loss of one auricle and that the 50 percent evaluation requires
complete loss of both. This is consistent with the current instructions
for the 10 percent evaluation which require a quantifiable loss of one-
third or more of one auricle.
Because of the likelihood of serious disablement and the severe
side effects which chemotherapy and radiation treatment produce in the
average person, we propose to assign a 100 percent evaluation under the
diagnostic code for malignancies (6208), with the total evaluation
continuing after the cessation of surgical, X-ray, antineoplastic or
other theraputic procedure. We propose to continue the total evaluation
under this code indefinitely after treatment is discontinued, and to
examine the veteran six months thereafter. If the results of this or
any subsequent examination warrant a reduction in evaluation, the
reduction would be implemented under the provisions of 38 CFR 3.105(e).
This method has the advantage of offering the veteran timely notice of
any proposed action and, under the provisions of 38 CFR 3.105(e), the
opportunity to present evidence showing that the action should not be
taken. This is consistent with evaluation of malignancies which we have
proposed in other parts of the Schedule.
The evaluation for benign neoplasms of the ear (diagnostic code
6209) currently instructs the rater to evaluate the condition based on
impairment of function, with a minimum evaluation of 10 percent.
Likewise, there is an instruction to add 10 percent to the evaluation
for residuals of malignant new growths. We propose to delete these
minimum evaluations. Advances in reconstructive surgery have reduced
the disability associated with this condition and loss of function is
the most accurate way of evaluating the residuals of this condition.
Since any disability sufficient to warrant a compensable evaluation
would be noted on VA examination, a minimum evaluation is no longer
appropriate.
The evaluation for tinnitus (diagnostic code 6260) currently
requires that the condition be ``persistent'' in order to qualify for a
10 percent evaluation. Tinnitus is a subjective sensation which, under
certain circumstances, comes and goes. The word ``persistent'' suggests
a meaning of constant, and we propose to replace it with ``recurrent,''
meaning that the tinnitus might not always be present, but that it does
return at regular intervals. Requiring that tinnitus be ``recurrent''
will allow a realistic evaluation of the typical disablement from this
condition.
Tinnitus can be caused by a number of conditions, including
injuries, acute diseases and drug reactions. Compensable evaluation for
persistent tinnitus is currently restricted to conditions caused by
head injury, concussion or acoustic trauma. Since the severity of
disablement from tinnitus does not depend on its origin, we propose to
eliminate the restriction that tinnitus result from trauma, and provide
instead for a compensable evaluation whenever tinnitus is recurrent. We
also propose to remove reference to diagnostic code 8046 (cerebral
arteriosclerosis), and to remove reference to tinnitus under diagnostic
code 6204 (peripheral vestibular disorder) in order to allow separate
evaluations for tinnitus when caused by cerebral arteriosclerosis and
peripheral vestibular disorder.
No change is proposed in Sec. 4.87b, which provides evaluations for
loss of smell (diagnostic code 6275) and taste (diagnostic code 6276)
except wording changes in the NOTE following, for clarity, and
redesignation of the section as Sec. 4.87a.
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. 605(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of Secs. 603 and 604.
This regulation is subject to review under Executive Order 12866.
The Catalog of Federal Domestic Assistance numbers are 64.104 and
64.109.
List of Subjects in 38 CFR Part 4
Handicapped, Pensions, Veterans.
Approved: June 23, 1993.
Jesse Brown,
Secretary of Veterans Affairs.
Editorial note: This document was received at The Office of the
Federal Register April 6, 1994.
For the reasons set out in the preamble, 38 CFR part 4, subpart B,
is proposed to be amended as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
Subpart B--Disability Ratings
1. The authority citation for part 4 continues to read as follows:
Authority: 72 Stat. 1125; 38 U.S.C. 1155.
2. Section 4.85 is revised to read as follows:
Sec. 4.85 Evaluation of hearing impairment.
(a) Examinations will be conducted using a controlled speech
discrimination test together with a puretone audiometry test. The
horizontal rows in Table VI represent levels of speech discrimination
determined from the controlled speech discrimination test. The vertical
columns in Table VI represent levels of puretone decibel loss
determined from the puretone audiometry test. The Roman numeral
designation of impaired efficiency (I through XI) is determined at the
point where the horizontal row (percentage of speech discrimination)
and the vertical column (puretone decibel loss) intersect. For example,
with 70 percent speech discrimination and average puretone decibel
hearing loss of 64, the Roman numeral designation is V. Each ear will
be evaluated separately.
(b) The percentage evaluation will be determined from Table VII.
The horizontal row of Roman numeral designations represents the ear
having the better hearing and the vertical column the Roman numeral
designations for the ear having the poorer hearing. The percentage of
disability and the diagnostic code are located at the point where the
row and column intersect. For example, if the better ear (horizontal
row) has a Roman numeral designation of ``V'' and the poorer ear
(vertical column) has a Roman numeral designation of ``VII,'' the row
and column intersect where the percentage evaluation is 30 percent and
the diagnostic code is 6103.
(c) Table VIa provides Roman numeral designations based solely on
puretone decibel hearing loss averages. It is for application when the
Chief of the Audiology Clinic certifies that language difficulties or
inconsistent speech discrimination scores make the combined use of
puretone decibel hearing loss and speech discrimination inappropriate.
(d) When puretone thresholds in any four of the frequencies 500,
1000, 2000, 3000, and 4000 Hertz, are 55 decibels hearing loss or more,
the rating specialist will select the Roman numeral designation from
either Table VI or Table VIa, whichever permits the higher Roman
numeral designation. Each ear will be evaluated separately.
(e) When puretone thresholds are 30 decibels hearing loss or less
at frequencies of 1000 Hertz and below, and are 70 decibels hearing
loss or more at 2000 Hertz, the rating specialist will select the
higher Roman numeral designation from either Table VI or Table VIa, and
then elevate the Roman numeral designation selected to the next higher
Roman numeral. Each ear will be evaluated separately.
Note: When evaluating any claim for impaired hearing, refer to
Sec. 3.350 of this chapter to determine whether the veteran may be
entitled to special monthly compensation due either to deafness
itself, or deafness or partial deafness in combination with other
specified disabilities.
3. Section 4.86 is revised to read as follows:
Sec. 4.86 Auditory acuity, hearing aids, and evidence other than
puretone audiometry and controlled speech.
(a) For Department of Veterans Affairs purposes, ``impairment of
auditory acuity'' means the organic loss of the ability to hear speech.
(b) The evaluations derived from this schedule are designed to
measure the best residual uncorrected hearing. Examinations comparing
hearing with and without hearing aids are unnecessary.
(c) When the medical evidence necessary to establish service-
connection for hearing loss predates the use of puretone audiometry and
controlled speech, service-connection will be determined under the
provisions of Secs. 4.85 through 4.87 of this part as in effect on
December 17, 1987.
BILLING CODE 8320-01-P
TP12AP94.000
TP12AP94.001
BILLING CODE 8320-01-C
Sec. 4.86a [Removed]
4. Section 4.86a is removed.
5. Section 4.87 is revised to read as follows:
Sec. 4.87 Schedule of ratings--ear.
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
Diseases of the Ear
6200Chronic suppurative otitis media including cholesteatoma
or mastoiditis
During suppuration............................................ 10
Note: Loss of hearing shall be separately rated and combined.
6201Chronic otitis media with effusion (serous otitis media)
Rate loss of hearing.
6202Otosclerosis
Rate loss of hearing.
6204Peripheral vestibular disorders
Dizziness and occasional staggering........................... 30
Occasional dizziness.......................................... 10
Note: Objective findings supporting the diagnosis of
vestibular disequilibrium are required before a compensable
evaluation can be assigned under this code. Loss of hearing
or suppuration shall be separately rated and combined.
6205Meniere's syndrome (endolymphatic hydrops) Deafness with
attacks of vertigo and cerebellar gait occurring more than
once weekly.................................................. 100
Deafness with attacks of vertigo and cerebellar gait occurring
once a week or less.......................................... 60
Deafness with occasional vertigo.............................. 30
6207Loss of auricle:
Complete loss of both......................................... 50
Complete loss of one.......................................... 30
Deformity of one, with loss of one-third or more of the
substance.................................................... 10
6208Malignant neoplasm of the ear, (other than skin only)..... 100
Note: Following the cessation of surgical, X-ray,
antineoplastic or other therapeutic procedure, the rating of
100 percent shall continue with a mandatory VA examination at
the expiration of six months. Any change in evaluation based
upon that 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 residual impairment of
function.
6209Benign neoplasms of the ear, (other than skin only)
Rate on impairment of function
6210Chronic otitis externa swelling, dry and scaly or serous
discharge and itching requiring frequent and prolonged
treatment.................................................... 10
6211Tympanic membrane, perforation of......................... 0
6260Tinnitus, recurrent....................................... 10
------------------------------------------------------------------------
6. Section 4.87a is revised to read as follows:
Sec. 4.87a Schedule of ratings--other sense organs.
6275Sense of smell, complete loss............................. 10
6276Sense of taste, complete loss............................. 10
Note: These ratings will be assigned only if there is an
anatomical or pathological basis for the condition.
Sec. 4.87b [Removed]
7. Section 4.87b is removed.
[FR Doc. 94-8555 Filed 4-11-94; 8:45 am]
BILLING CODE 8320-01-P
