[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20440-20447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11281]
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DEPARTMENT OF THE TREASURY
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AE41
Schedule for Rating Disabilities; Endocrine System Disabilities
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends that portion of the Department of
Veterans Affairs (VA) Schedule for Rating Disabilities that addresses
the Endocrine System. The effect of this action is to update the
endocrine portion of the rating schedule to ensure that it uses current
medical terminology and unambiguous criteria, and that it reflects
medical advances which have occurred since the last review.
DATES: This amendment is effective June 6, 1996.
FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,
Regulations Staff (211B), Compensation and Pension Service, Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Avenue NW, Washington, DC 20420, (202) 273-7210.
SUPPLEMENTARY INFORMATION: As part of the first comprehensive review of
the rating schedule since 1945, VA published a proposal to amend 38 CFR
4.119, which addresses the endocrine system, in the Federal Register of
January 22, 1993 (58 FR 5691-95). Interested persons were invited to
submit written comments on or before March 23, 1993. We received
comments from The American Legion, Disabled American Veterans, Veterans
of Foreign Wars, Paralyzed Veterans of America, and VA employees.
There were a number of general comments. Two commenters requested
that we establish more objective criteria, especially for thyroid
disease, parathyroid disease, and diabetes mellitus. One of them noted
that a substantial number of subjective descriptors remained. The other
recommended that we remove ambiguous and undefined terms. One commenter
said that the schedule should eliminate, as much as possible, the
potential for inconsistency and error. Another suggested that removing
comparative descriptions such as ``severe,'' ``moderate'', etc., would
not disturb the remaining criteria and would result in more uniform
rating decisions.
Although the commenters offered no specific alternatives for
consideration, VA agrees that objective rating criteria help assure
consistency of evaluations. With that in mind, we have revised the
proposed criteria. In some cases we have simply removed subjective
terms such as ``marked'', ``increasingly severe'', and ``pronounced''
when they did not substantively explain or clarify the evaluation
criteria. In other cases, we have supplied objective definitions of
terms. In still others, establishing more objective, consistent, and
unambiguous criteria required more detailed modification of the
proposed criteria, which will be discussed under the affected
diagnostic codes.
One commenter, while agreeing with the removal of ambiguous words
such as ``severe,'' urged that the rules not be made too concrete and
thus sterile.
We believe that providing clear and objective criteria is the best
way to assure that disabilities will be evaluated fairly and
consistently. Judgment and flexibility are required in the evaluation
process, since patients do not commonly present as textbook models of
disease, and those evaluating disabilities always have the task of
assessing which evaluation level best represents the overall picture.
(See 38 CFR 4.7.)
One commenter stated that it would be helpful to have additional
notes, such as the note under DC 7913 on the evaluation of the
complications of diabetes mellitus, discussing pertinent clinical and
nonclinical factors to be considered in assigning evaluations.
In general, we have retained or expanded upon such notes. Where it
seemed more appropriate, we have incorporated the content of notes into
the evaluation criteria. We have not added notes containing background
material, such as general medical information that is available in
standard textbooks, or other material that neither prescribes VA policy
nor establishes procedures a rating board must follow, because such
material is not appropriate in a regulation.
We have revised hyperthyroidism, DC 7900, in response to the
comment suggesting more objectivity. The proposed criteria required
``severe tachycardia'' at the 100 percent level and ``tachycardia'' at
all other levels. According to ``The Merck Manual'' (463, 16th ed.
1992), tachycardia is a heart rate greater than 100 beats per minute,
but the medical literature does not define ``severe'' tachycardia.
Using the word ``severe'' therefore imposed upon the rater the burden
of subjectively determining its meaning, and we have removed ``severe''
at the 100 percent level. We have also made the criteria more objective
by indicating that tachycardia means more than 100 beats per minute.
We proposed that the criteria for hyperthyroidism include ``marked
sympathetic nervous system, cardiovascular, or gastrointestinal
symptoms'' at the 100 percent level and ``marked emotional
instability'' at the 60 percent level. In both cases, we have removed
the indefinite word ``marked'' because it does not substantively
explain or clarify the evaluation criteria, and the criteria are clear
without it.
One commenter suggested that we specify the symptoms of the
sympathetic nervous system proposed as criteria at the 100 percent
level of evaluation under DC 7900.
VA does not concur. The sympathetic nervous system innervates
thoracic, abdominal, and pelvic viscera as well as blood vessel walls.
Therefore, exaggerated sympathetic nervous system activity can have
widespread manifestations including, but not limited to, elevated blood
pressure, increased cardiac output, increased metabolic rate, sweating,
nervousness, weight loss, tachycardia, palpitations, increased
frequency of bowel movements, and heat intolerance. Certain conditions,
hyperthyroidism among them, are known as sympathomimetic conditions
because they mimic the effects of increased activity of the sympathetic
nervous system, although the sympathetic nervous system itself is
normal. Since the particular signs and symptoms that might be exhibited
vary widely from individual to individual, limiting the criteria at the
100 percent level to a few selected symptoms of the sympathetic nervous
system would be inappropriate.
We proposed that increased pulse pressure be one of the criteria
for the 60 percent and 30 percent levels of hyperthyroidism. One
commenter questioned the use of pulse pressure as a criterion, stating
that it is not a diagnostic marker and is not routinely recorded on an
examination report.
Pulse pressure is the difference between the systolic and diastolic
blood pressures, and it is readily available for anyone who has had a
blood pressure recorded. Hyperthyroidism is one of a number of diseases
that may produce an increased (or widened) pulse pressure, which
results from an elevated systolic blood pressure and a lowered
diastolic blood pressure. Because increased pulse pressure is a common
sign of hyperthyroidism, it is an appropriate criterion to use in
evaluating hyperthyroidism.
One commenter suggested that tremor (one of several proposed
criteria for hyperthyroidism at the 10 and 30
[[Page 20441]]
percent levels of evaluation) be evaluated as a secondary condition
with a minimum evaluation of 20 percent, even for involvement of only
one hand, because it is an employment handicap.
VA does not concur. There are several types of tremors, and it
appears that the commenter may have based his suggestion on the
observation of an individual with a tremor other than the type
characteristic of hyperthyroidism. The tremor of hyperthyroidism is a
fine tremor most noticeable in the outstretched hands. It is
characterized as a physiologic tremor, i.e., one that is an
exaggeration of the normal physiologic tremor that virtually everyone
experiences at times (``Harrison's Principles of Internal Medicine''
167 (Jean D. Wilson, M.D. et al. eds., 12th ed. 1991)), and is not
severely disabling. Including tremor as one of the requirements at the
10 and 30 percent levels of evaluation for hyperthyroidism takes into
account the type and severity of the characteristic hyperthyroid-
induced tremor. In our judgment, the presence of such a tremor would
not, in and of itself, warrant the 20 percent evaluation the commenter
suggests.
One commenter suggested that emotional disorders and
gastrointestinal and cardiovascular symptoms due to thyroid conditions
(hyperthyroidism, DC 7900; toxic adenoma of thyroid gland, DC 7901;
hypothyroidism, DC 7903) be evaluated separately rather than being part
of the evaluation criteria for thyroid conditions.
Severe thyroid disease may produce distinct secondary conditions,
including certain mental disorders, and such conditions can always be
service-connected and separately evaluated (see 38 CFR 3.310(a)). Some
secondary conditions, e.g., dementia under hypothyroidism (DC 7903),
are specifically included in the evaluation criteria for the 60- or
100-percent levels of thyroid disease. This does not exclude the
possibility of service-connecting and separately evaluating the
secondary condition, but provides an alternative means of evaluation by
allowing the secondary condition to be used to support the 60- or 100-
percent evaluation level of thyroid disease. However, the same
condition cannot be separately evaluated and concurrently used to
evaluate the primary condition (DC's 7900, 7901, or 7903). (See 4.14 of
this part.) This is comparable to the evaluation of diabetes mellitus
(DC 7913), where compensable complications of diabetes may be either
separately evaluated or used to support a 100-percent evaluation.
The request for separate evaluation of symptoms is a different
issue. Because of the widespread effects of thyroid hormone, the
symptoms of thyroid disease are diverse, reflecting effects on multiple
body systems. However, the presence of such symptoms (e.g.,
gastrointestinal symptoms under hyperthyroidism (DC 7900)) can be an
inherent part of thyroid disease and does not ordinarily indicate that
a separate and distinct secondary condition is present. Unless they are
clearly part of a distinct condition secondary to thyroid disease, the
symptoms must be used in the overall evaluation criteria for the
thyroid condition. The evaluation of secondary conditions is discussed
in the preceding paragraph.
In the previous schedule, nontoxic adenoma of the thyroid (DC 7902)
was evaluated on the basis of pressure symptoms or marked
disfigurement. We proposed that it be evaluated at the 20 percent level
if there is ``marked disfigurement of the head or neck.'' One commenter
suggested that nontoxic adenoma of the thyroid be rated analogous to DC
7800 (scars, disfiguring, head, face, or neck).
We do not concur. Disfigurement from a nontoxic adenoma of the
thyroid is not a skin phenomenon but an enlargement of the thyroid that
produces an unsightly neck mass through sheer bulk. Factors that are
used to evaluate skin conditions, such as discoloration and color
contrast, are not appropriate for evaluating that type of
disfigurement. In response to the general request for more objective
criteria previously mentioned, we have removed the word ``marked'',
leaving ``with disfigurement of the head or neck'' as the sole
criterion for a 20 percent evaluation. In our judgment, any adenoma
that is substantial enough to be disfiguring warrants a 20 percent
evaluation. This does not represent a substantive change from the
proposed criteria.
The proposed note under DC 7902 stated to rate as impairment of
affected organ if a higher evaluation is warranted. For the sake of
clarity, we have revised the note to state that if there are symptoms
due to pressure on adjacent organs such as the trachea, larynx, or
esophagus, nontoxic adenoma of the thyroid will be evaluated under the
diagnostic code for disability of that organ, if doing so would result
in a higher evaluation. This does not represent a substantive change
from the proposed note.
We proposed to delete the zero percent level of evaluation for
nontoxic adenoma (DC 7902) that was present in the previous schedule.
However, to clarify that not all nontoxic adenomas are considered
disfiguring, we have restored the zero percent level for those
``without disfigurement of the head or neck.'' This does not represent
a substantive change.
For the sake of clarity, we have also removed the indefinite word
``severe'' before ``cold intolerance'' in the proposed criteria for a
100 percent evaluation for hypothyroidism (DC 7903) and revised the
indefinite criterion ``slow pulse'' to the more precise medical term
``bradycardia'', which is defined as less than 60 beats per minute. We
have also revised the requirement of ``mental symptoms'' to ``mental
disturbance,'' since some of the possible manifestations are symptoms
but others are distinct mental disorders. These are not substantive
changes.
One commenter, stating that obesity is such a pervasive problem in
American society that weight gain is not a true measure or mark of a
specific disorder, felt that weight gain should not be included in the
criteria for the 60 percent evaluation for hypothyroidism (DC 7903).
VA does not concur. There are special characteristics of the weight
gain associated with hypothyroidism that distinguish it from the weight
gain seen in simple obesity. The weight gain in hypothyroidism is
largely due to fluid retention, which appears as ascites, pleural
effusion, edema of the extremities, or even edema of the nervous system
(``Williams Textbook of Endocrinology'' 447-48 (Jean D. Wilson, M.D.
and Daniel W. Foster, M.D. eds., 8th ed. 1992)). This type of weight
gain is unlikely to be confused with obesity. For this reason, we
believe that weight gain is appropriate as part of the overall criteria
for the evaluation of hypothyroidism, and we have retained it among the
criteria for the 60 percent level.
The previous schedule included ``sluggish mentality and other
indications of myxedema'' in the criteria for the 30 percent evaluation
level of hypothyroidism (DC 7903). We proposed to retain mental
sluggishness as one of the criteria, but to delete the term myxedema. A
commenter objected to the removal of myxedema, saying there is no basis
for our contention that myxedema is seldom encountered.
The term myxedema is sometimes used loosely to refer to
hypothyroidism in general, but in its stricter meaning, it is full-
blown hypothyroidism with fluid retention. Hypothyroidism may present
at any level of severity, including a subclinical form, and myxedema in
the strict sense is found only in severe disease, when hypothyroidism
is
[[Page 20442]]
untreated or has reached an advanced stage. We therefore replaced
``sluggish mentality with other indications of myxedema'' at the 30
percent level with less ambiguous criteria: fatigability, constipation,
and mental sluggishness.
The previous schedule assigned hyperthyroidism (DC 7900) and
hypothyroidism (DC 7903) minimum ten percent evaluations when
continuous medication is required for control. We proposed to delete
the minimum evaluations, and three commenters objected.
Upon further review, VA agrees that a ten percent evaluation is
appropriate when continuous medication is required for control of these
conditions because such treatment implies both the need for repeated
medical evaluations and the possibility of side effects that may
themselves require treatment. We have therefore restored the ten
percent evaluation level under diagnostic codes 7900 and 7903 for those
who require continuous medication. For the sake of consistency, we have
also added a ten percent evaluation level under hyperparathyroidism (DC
7904) for those who require continuous medication. We have recast the
note under hypoparathyroidism (DC 7905) establishing a minimum
evaluation of ten percent when continuous medication is required as ten
percent evaluation criteria. The change under DC 7905 is editorial in
nature and does not represent any substantive change to the criteria as
proposed.
``Decreased levels of circulating thyroid hormones (T4 and/or T3 by
specific assays)'' was one of the criteria for a 100 percent evaluation
for hypothyroidism (DC 7903) in the previous schedule. We proposed a
change to ``undetectable levels of circulating thyroid hormones'' as
one of the criteria for the 100 percent level. Two commenters felt that
the proposed change made the criteria too stringent.
VA concurs. Therapy is instituted as soon as medical personnel
learn that there are no detectable levels of hormone; the therapy
produces a rapid reversion of hormone levels toward normal but leaves
the clinical signs of disease to resolve more slowly. Although many
endocrine conditions require laboratory confirmation of hormone levels
for diagnosis, the hormone levels may not correlate with the severity
of the clinical findings, and laboratory findings are therefore more
useful for diagnosis than evaluation. For these reasons, we have
removed: (1) ``undetectable levels of circulating thyroid hormones''
from the criteria for the 100 percent level of hypothyroidism (DC
7903), (2) ``decreased levels of circulating thyroid hormone'' from the
60 percent and 30 percent levels of hypothyroidism, (3) ``elevated
levels of circulating thyroid hormones'' as a requirement for the 100
and 60 percent levels of hyperthyroidism (DC 7900), and (4) ``elevated
blood and urine calcium levels'' as a requirement for the 100 and 60
percent levels of hyperparathyroidism (DC 7904).
One commenter suggested that we quantify weight loss by indicating
a percentage below normal weight or similar objective measure rather
than using the term ``marked weight loss'' for the 100 and 60 percent
levels of hyperparathyroidism (DC 7904).
In addition to removing the references to laboratory findings, as
discussed above, we have modified the criteria for hyperparathyroidism
by removing ``marked weight loss'' from the criteria for the 100 and 60
percent levels. Since severe hyperparathyroidism may manifest itself
through a variety of gastrointestinal symptoms, weight loss being only
one (Williams, 1431), we have replaced the separate requirement for
weight loss with the more flexible requirement for ``gastrointestinal
symptoms (nausea, vomiting, anorexia, constipation, weight loss, or
peptic ulcer)'' at the 100 and 60 percent levels. This change
recognizes that gastrointestinal symptoms are part of an overall
pattern of abnormalities, but that any individual symptom, such as a
specified amount of weight loss, is not required for either level of
severity. This offers more flexibility than the proposed requirement
for marked weight loss.
We proposed that ocular disturbances be one of the criteria for
both the 100 percent and 60 percent levels of evaluation for
hypoparathyroidism (DC 7905). One commenter, while giving no reason,
requested that ocular disturbances be removed as a criterion.
There are two distinct types of ocular disturbance that may occur
in hypoparathyroidismcataracts and papilledema (Williams, 1456-57;
Harrison, 1915-16). Papilledema, if present, would be an indication of
the increased intracranial pressure that sometimes occurs in
hypoparathyroidism, but it is only one possible manifestation of
increased intracranial pressure. Cataracts are unrelated to increased
intracranial pressure. For the sake of making the criteria clearer and
more objective, we have substituted ``cataract or evidence of increased
intracranial pressure (such as papilledema)'' for ``ocular
disturbances''.
One commenter mentioned hypoparathyroidism as another example of a
condition where objective criteria should be employed in place of
ambiguous terms.
Criteria we proposed for the 100 percent level of
hypoparathyroidism, in addition to ocular disturbances, were: seizures
or convulsions, muscular spasm (tetany), or marked neuromuscular
excitability. Since muscular spasms and convulsions are themselves two
specific manifestations of marked neuromuscular excitability, for more
clarity and to eliminate redundancy, we have retained marked
neuromuscular excitability as one of the criteria, giving its most
common manifestationsconvulsions, muscular spasms (tetany), and
laryngeal stridorin parentheses. By providing this list of conditions,
we have made the meaning of ``marked'' definite enough that it
substantively clarifies the degree of neuromuscular excitability needed
to support a 100 percent evaluation.
For the 60 percent level of hypoparathyroidism, the proposed
criteria were: marked neuromuscular excitability, ocular disturbances,
and constipation or numbness and tingling of the extremities. We have
revised the proposed criteria by providing three alternative sets of
criteria: marked neuromuscular excitability, a combination of
paresthesias (of arms, legs, or circumoral area) and cataract, or a
combination of paresthesias and increased intracranial pressure. While
this represents a substantive change, it responds to the general
comment that we eliminate, as much as possible, the potential for
inconsistency and error. The proposed criteria appeared to be more
stringent at the 60 percent level than at the 100 percent level, and
there also could have been confusion about which of the criteria listed
were required and which were alternatives. The revision eliminates this
confusion, affords more flexibility, and provides a clearer
differentiation between the 100 and 60 percent levels.
We deleted the word ``marked'', modifying loss of muscle strength,
at the 100 percent level of Cushing's syndrome (DC 7907). This is more
objective because the rater does not now have to estimate whether a
reported loss of muscle strength is ``marked.'' The change allows any
reported loss of muscle strength to serve as one of the requirements at
the 100 percent level.
We proposed to retain 100 and 60 percent levels of evaluation for
Cushing's syndrome, as in the previous schedule. One commenter stated
that the condition warrants additional levels of evaluation, especially
when it is secondary to medication.
VA agrees. Although secondary Cushing's syndrome (due to steroid
[[Page 20443]]
therapy) has physical findings indistinguishable from primary Cushing's
syndrome (Harrison, 1723), there is a wide range of severity depending
on the dosage of steroids used, duration of therapy, etc. We have
therefore added a 30 percent level of Cushing's syndrome for those with
milder manifestations: striae, obesity, moon face, glucose intolerance,
and vascular fragility.
The previous schedule required increased intracranial pressure,
hypertension, genital decline and atrophy, hypotrichosis, hypoglycemia,
obesity, and asthenia for a 100 percent evaluation of acromegaly (DC
7908). We proposed to revise the criteria by requiring increased
intracranial pressure, arthropathy, glucose intolerance, hypertension,
cardiomegaly, and visual impairment. One individual felt that
represents a tightening of the requirements and recommended that
cardiomegaly not be required at the 100 percent level.
Upon further consideration, VA has revised the proposed criteria
for the 100 percent level. Cardiomegaly is present in 80 percent of
acromegalics and may be part of the generalized organomegaly that is
sometimes seen (Williams, 272). It is therefore seen commonly enough to
be an appropriate criterion. Hypertension occurs in approximately 20-40
percent of acromegalics, and overactivity of the sympathetic nervous
system has been suggested as a possible etiology. Hypertension and
cardiomegaly are thus independent entities, with apparently different
etiologies (although they may be associated when hypertension results
in cardiomegaly). Because either may be a manifestation of acromegaly,
instead of removing cardiomegaly, we have made cardiomegaly an
alternative criterion to hypertension at the 100 percent level, rather
than requiring both.
The previous schedule required intracranial pressure as one of the
criteria for the 100 percent level of acromegaly, and symptoms of
intracranial pressure in the optic region for the 60 percent level. We
proposed to require both increased intracranial pressure and visual
impairment for the 100 percent level. One commenter, noting that
increased intracranial pressure specifically impairs peripheral vision,
stated that ``visual impairment'' is too broad a term. He said we
should distinguish visual field loss from central visual acuity loss
and other visual deficits.
We agree. The term ``visual impairment'' can have many meanings,
and not all types of visual impairment result from acromegaly. Those
that do occur are the result of localized or generalized increased
intracranial pressure because acromegaly is almost always due to a
pituitary adenoma (Merck, 1064). There may, for example, be a visual
field defect when the pituitary tumor presses on the optic chiasm.
However, it is increased intracranial pressure from the tumor that is
the underlying cause of any visual impairment that is present, and the
increased pressure is at times manifested only by findings other than
visual impairment. We have therefore revised the criteria by deleting
the requirement for both increased intracranial pressure and visual
impairment in favor of a more flexible, but also more specific,
requirement for evidence of increased intracranial pressure ``such as
visual field defect.'' This will allow other possible manifestations of
increased intracranial pressure, such as papilledema, headaches, etc.,
to satisfy one of the requirements for a 100 percent level of
evaluation and will exclude as criteria visual impairments that have no
relationship to acromegaly.
In further response to the general request for more objective
criteria, we have revised the proposed criteria for diabetes insipidus
(DC 7909) by removing the subjective terms ``excessive thirst'' and
``severe polyuria'' wherever they occurred in favor of the more
objective phrase ``polyuria with near-continuous thirst.'' We also
revised the criteria for the 100 percent evaluation, which we proposed
to be: ``excessive thirst and severe polyuria requiring parenteral
hydration therapy, episodes of syncope, and low systolic and diastolic
blood pressure'' to a requirement for ``polyuria with near-continuous
thirst, and more than two documented episodes of dehydration requiring
parenteral hydration in the past year.'' The excretion of large
quantities of very dilute urine is the underlying abnormality in this
condition, and this leads to dehydration and hypovolemia. Syncope and
low blood pressure are not isolated separate signs but are common
effects of dehydration, and these criteria therefore encompass both
parenteral hydration therapy, used to treat dehydration, and two of the
signs of dehydration (syncope and low blood pressure).
The proposed criteria for the 60 percent level included excessive
thirst, polyuria, dehydration, serum osmolality greater than 295 mOsm/
kg., and urine osmolality less than 38 mOsms/kg. We revised these to a
requirement for one or two documented episodes of dehydration requiring
parenteral hydration in the past year, in addition to the basic
requirements of thirst and polyuria. Serum and urine osmolality levels
are objective criteria, but osmolality levels were not proposed as
criteria for the 20, 40, or 100 percent levels. The change in favor of
specifying the number of episodes of dehydration provides criteria that
are more parallel and comparable from one level to the next, and are
objective enough that the additional laboratory tests are not needed to
determine a 60 percent level of severity. Finally, we have changed the
proposed requirement for the 40 percent level from ``polyuria,
excessive thirst, and dehydration'' to ``polyuria with near-continuous
thirst, and one or more episodes of dehydration in the past year not
requiring parenteral hydration.''
We have also deleted the words ``increasingly,'' ``severe,''
``pronounced,'' and ``marked'' wherever they occurred in the proposed
evaluation criteria for Addison's disease (DC 7911). These words did
not substantively explain or clarify the evaluation criteria, and the
criteria are clear without them.
The proposed criteria for the 20 percent level of Addison's disease
required either corticosteroid therapy or a combination of weakness and
fatigability. In response to the commenter who said that the schedule
should eliminate the potential for inconsistency, we have added
alternative criteria for the 20 percent level that are parallel to the
higher levels. These criteria require one or two crises or two to four
episodes during the past year, which assures consistency of evaluation
for those with fewer crises or episodes. For further clarity of the
criteria, we added two notes under DC 7911 that define Addisonian
``crises'' and Addisonian ``episodes.''
In the previous schedule, under diabetes mellitus (DC 7913),
regulation or careful regulation of activities (defined as avoidance of
strenuous occupational and recreational activities) was one of the
criteria at the 100 percent and 40 percent evaluation levels. We
proposed ``regulation of activities,'' not further defined, as a
criterion at the 100, 60, and 40 percent levels. One commenter felt
that the proposed change in language made the meaning less clear.
We agree and have retained the definition used in the previous
rating schedule, ``avoidance of strenuous occupational and recreational
activities,'' and included it in the evaluation criteria for the 100
percent level.
The same commenter said that it is meaningless to include
limitation of
[[Page 20444]]
activities as a factor in evaluating diabetes mellitus since
information of this type is not provided in a VA examination.
VA disagrees. VA's Physician's Guide for Disability Evaluation
Examinations is meant to insure that all necessary tests are performed
and that all findings are provided for diagnosis and/or evaluation to
meet the specific requirements of the Schedule for Rating Disabilities
and related programs. It is available to VA and fee-basis examiners
conducting examinations for VA disability benefits. The Guide will be
revised to provide detailed guidelines for examinations reflecting the
revised provisions of the rating schedule. It is incumbent upon the
rating board to return to the examiner reports that lack information
necessary to apply the provisions of the rating schedule (see Sec. 4.2
of 38 CFR).
The proposed 100 percent level for diabetes mellitus required
``repeated'' episodes of ketoacidosis or hypoglycemic reactions
requiring, among other things, ``frequent'' hospital or physician
treatment. We received one comment requesting that we clearly define
``frequent treatment.''
We concur and have revised that portion of the criteria to require
``episodes of ketoacidosis or hypoglycemic reactions requiring at least
three hospitalizations per year or weekly visits to a diabetic care
provider.'' Similarly, for the 60 percent level we have changed the
requirement from ``occasional'' episodes of ketoacidosis or
hypoglycemic reactions to ``episodes of ketoacidosis or hypoglycemic
reactions requiring one or two hospitalizations per year or twice a
month visits to a diabetic care provider.'' The change from a
requirement for physician treatment to a requirement for visits to a
diabetic care provider reflects the fact that diabetics are usually
under the care of a multidisciplinary diabetic team, and at any given
visit may see a nurse practitioner, physician's assistant, etc.
The previous schedule required ``severe complications'' as one of
the alternative criteria for the 100 percent level of diabetes mellitus
(DC 7913). The proposed revision instead required ``severe
complications such as retinopathy, nephropathy, arteriosclerosis, or
neuropathy'' as one of the alternatives. For the 60 percent level the
previous schedule required ``mild complications, such as pruritus ani,
mild vascular deficiencies, or beginning diabetic ocular
disturbances.'' The proposed revision required ``mild complications
such as mild vascular deficiencies or beginning diabetic ocular
disturbances.''
A commenter stated that the word ``severe,'' referring to
complications at the 100 percent level of diabetes mellitus, is a
subjective description that should be changed.
VA agrees. We have revised the language at both the 60 and 100
percent levels to make it more objective, consistent from level to
level, and more precise. We have revised the 100 percent criteria to
require complications that would be compensable if separately evaluated
and the 60 percent criteria to require complications that would not be
compensable if separately evaluated. This is also consistent with note
(1), following DC 7913, that directs that compensable complications of
diabetes mellitus are to be rated separately unless they support a 100
percent evaluation and that noncompensable complications are considered
part of the diabetic process under DC 7913.
One commenter questioned whether a 10 percent evaluation included
those with Type II (adult onset) diabetes without symptoms and not
following a restricted diet.
The criterion we proposed for the 10 percent level, ``controlled by
restricted diet only,'' refers to anyone with diabetes mellitus mild
enough not to require insulin or oral hypoglycemics. For the sake of
greater clarity, we have revised the requirement for zero percent to
``manageable by restricted diet only.'' This does not represent a
substantive change.
A proposed note under diabetes mellitus (DC 7913) stated that when
diabetes mellitus has been definitely diagnosed, a glucose tolerance
test need not be ordered solely for rating purposes. A commenter said
that the term ``definitely diagnosed'' is an entirely subjective
descriptor.
To assure that there is no misunderstanding about the meaning, we
have changed the term ``definitely diagnosed'' to ``conclusively
diagnosed.'' The intent of the term ``conclusively diagnosed'' is to
indicate those individuals who have a diagnosis of diabetes mellitus
that has been established through the usual medical means, both
clinical and laboratory, and to exclude those with insufficient
evidence to support a clear diagnosis.
One commenter stated that the revision should address the basic
concept of lost earnings due to time lost from work. He suggested no
alternatives.
In our judgment, the evaluation criteria we have provided are
clearly linked to lost earnings because they include such things as
periods of hospitalization, episodes of incapacitating symptoms,
muscular weakness, arthropathy, fatigability, etc., all of which may
affect the ability to work. Furthermore, we have provided criteria for
the 100 percent levels that indicate a degree of severity that would
render the average person completely unable to work. Thus the proposed
criteria do address the effects of time lost from work.
An additional general comment was that recently discharged veterans
would be discriminated against by being evaluated under the revised
rating schedule, which he said is ``deliberalized''.
VA disagrees. 38 U. S. C. gives the Secretary the authority to
readjust the schedule of ratings from time to time in accordance with
experience. The significant medical advances that have occurred since
1945 form part of the experience that must be taken into account in
revising the rating schedule. In order to assure fair and consistent
evaluations for veterans, the schedule must reflect actual residuals of
disease or injuries, not what residuals might have been in the past.
Furthermore, Congress foresaw that evaluations might change when the
rating schedule is revised and amended 38 U.S.C. 1155 to prohibit a
reduction in a veteran's disability rating because of a readjustment of
the rating schedule unless an improvement in the disability has been
shown.
The previous schedule had a 100 percent evaluation for one year
following the cessation of treatment of malignancies. We proposed that
the 100 percent evaluation continue indefinitely but that there be a
mandatory VA examination six months following the cessation of
treatment, with any change in evaluation based on that or any
subsequent examination, to be implemented under the provisions of 38
CFR 3.105(e). Three commenters recommended that VA retain the
evaluation criteria from the previous schedule.
We do not concur. An examination six months following the cessation
of treatment affords sufficient time for convalescence and
stabilization of residuals because the rule requires an examination,
not a reduction, six months after the cessation of treatment. In fact,
the rule precludes a reduction at that time because the process of re-
evaluation does not begin until then.
First, there must be a VA examination six months after completion
of treatment. 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
[[Page 20445]]
require a 60 day notice before VA reduces an evaluation and an
additional 60 day notice before the reduced evaluation takes effect.
The revision not only requires a current examination to assure that all
residuals are documented, but also offers the veteran more
contemporaneous notice of any proposed action and expands the veteran's
opportunity to present evidence showing 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.
Because of commenters' concerns, however, we have revised the note
under this code so that it cannot be misinterpreted as requiring a
reduction six months after treatment is terminated. We have also added
to the note a direction to rate on residuals, if there has been no
local recurrence or metastasis, in order to make these provisions
consistent with those we provided for malignancies of the revised
genitourinary system. This is not a substantive change, but has been
made to provide further clarity, as well as internal consistency within
the rating schedule.
One commenter said that VA exceeded its mandate by proposing the
change in convalescence.
VA does not concur. VA's mandate arises from 38 U.S.C. 1155, which
authorizes the Secretary to readjust the rating schedule from time to
time in accordance with experience.
Another commenter objected to the change in convalescence, saying
that the average person would require at least 12 months of
convalescence for brain surgery.
VA does not agree. The convalescent periods adopted in this change
represent, in our judgment, based on sound medical advice, neither the
longest nor shortest periods that any individual patient might require
for recovery, but the usual or normal periods during which a normal
patient, under normal circumstances, would be expected to recover from
a specific condition or surgical procedure. Furthermore, these
convalescent periods represent the point at which the individual
patient's condition is to be evaluated by examination, and do not
preclude an extension of a total evaluation, if appropriate, based on
the individual patient's condition.
Another commenter said that the proposed changes in convalescent
periods appear to be purely economically based.
The myriad of advances in medicine that have occurred since 1945,
such as early ambulation, better surgical techniques, new anesthetics,
and better control of infectious diseases, have led to strikingly
shorter periods of convalescence after both medical and surgical
treatment. The revisions were proposed based on medical considerations;
no cost studies or projections were conducted in conjunction with this
review. Cost cutting was therefore not an issue.
One commenter stated that applying Sec. 3.105(e) will cause
significant problems from an administrative standpoint and will often
significantly lengthen the periods for which a convalescent rate is
paid.
VA believes that the changes in convalescence following treatment
of malignancy where Sec. 3.105(e) must be applied can be implemented
without serious administrative problems. Similar changes are being made
in each body system, and any procedural changes that may be necessary
to implement the new process will be made as needed. We have included
the implementation of the provisions of Sec. 3.105(e) to assure that
veterans are afforded due process before convalescent ratings are
reduced, and if administrative delays do occur from time to time, they
cannot operate to the disadvantage of veterans. Also, since
Sec. 3.105(e) applies only to reductions in ``compensation payments
currently being made,'' it need not be applied in cases where a total
evaluation will be assigned and reduced retroactively.
One commenter urged that VA provide zero percent evaluations for
all diagnostic codes.
We do not agree. On October 6, 1993 VA revised its regulation
addressing the issue of zero percent evaluations (38 CFR 4.31) to
authorize assignment of a zero percent evaluation for any disability in
the rating schedule when minimum requirements for a compensable
evaluation are not met. In general, that regulatory provision precludes
the need for zero percent evaluation criteria. We have retained zero
percent evaluation criteria only when necessary to give the rater clear
and unambiguous instructions on rating where it might otherwise be
unclear whether commonly occurring minor findings warrant a compensable
evaluation.
One commenter noted that veterans are receiving diagnoses of
hyperlipidemia, elevated triglycerides, and elevated cholesterol, and
the commenter asked that we address the handling of claims for these
findings.
The diagnoses listed by the commenter are actually laboratory test
results, and are not, in and of themselves, disabilities. They are,
therefore, not appropriate entities for the rating schedule to address.
In addition, they have no special relationship to the endocrine system.
We have made several additional changes based on our own review of
the proposed regulation. For example, we edited the proposed note under
malignant neoplasm (DC 7914) by modifying the sentence ``Any change in
evaluation based upon that examination shall be subject to the
provisions of Sec. 3.105(e) of this chapter'' to ``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.'' The
change assures that the veteran will be given the notices described
above regardless of when an examination leading to a proposed change in
evaluation is done and is consistent with changes we have made in the
revision of other portions of the rating schedule. This represents no
substantive change.
The previous schedule had a note under DC 7900, hyperthyroidism,
addressing the issue of evaluating hyperthyroid heart disease if
disease of the heart predominates. We have expanded the note for
clarity by adding ``if doing so would result in a higher evaluation
than using the criteria above.''
We also made a nonsubstantive editorial change in the note
following pheochromocytoma (DC 7918) from the proposal to rate
hyperpituitarism, hyperaldosteronism and pheochromocytoma as malignant
or benign neoplasm under DC 7914 or 7915, whichever is applicable, to a
direction to evaluate those conditions under benign or malignant
neoplasms as appropriate.
For the sake of greater clarity and ease of comparison, we
rearranged the order of the criteria for diabetes mellitus (DC 7913)
regarding need for insulin or an oral hypoglycemic agent, diet, and
regulation of activities, putting them in the same order at all levels
where they appear. This does not represent a substantive change.
We proposed that constipation be one of the criteria for the 60
percent level of hypoparathyroidism (DC 7905). However, because
standard medical textbooks such as ``The Merck Manual'' and ``Williams
Textbook of Endocrinology'' do not include it as a characteristic
clinical manifestation of hypoparathyroidism, we have concluded that it
is not appropriate as
[[Page 20446]]
part of VA's evaluation criteria, and we have, therefore, removed it.
We proposed that DC 7901 (thyroid gland, toxic adenoma of) be rated
as DC 7900 (hyperthyroidism). For the convenience of rating
specialists, we have instead repeated the rating criteria for DC 7900
under DC 7901. For the same reason, we have repeated the note under DC
7914, which explains evaluation of malignant neoplasms, under C-cell
hyperplasia of the thyroid (DC 7919), rather than instructing to rate
C-cell hyperplasia of the thyroid as malignant neoplasm, as we
proposed. These changes reduce the risk of error because the necessary
criteria are closely associated with the diagnostic code rather than on
another page, and they also save time for the rating specialist. They
do not represent substantive changes.
We have made additional nonsubstantive editorial changes in
language by substituting ``evaluate'' for ``rate'' in several instances
and by changing ``neoplasms'' to ``neoplasm'' in DC's 7914 and 7915,
for internal consistency in the rating schedule.
VA appreciates the comments submitted in response to the proposed
rule, which is now adopted with the amendments 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 regulatory amendment has been reviewed by the Office of
Management and Budget under the provisions of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993.
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: December 5, 1995.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 4, subpart
B, 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 B--Disability Ratings
2. Section 4.119 is revised to read as follows:
Sec. 4.119 Schedule of ratings--endocrine system.
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
7900 Hyperthyroidism
Thyroid enlargement, tachycardia (more than 100 beats per
minute), eye involvement, muscular weakness, loss of weight,
and sympathetic nervous system, cardiovascular, or
astrointestinal symptoms..................................... 100
Emotional instability, tachycardia, fatigability, and
increased pulse pressure or blood pressure................... 60
Tachycardia, tremor, and increased pulse pressure or blood
pressure..................................................... 30
Tachycardia, which may be intermittent, and tremor, or;
continuous medication required for control................... 10
Note (1): If disease of the heart is the predominant finding,
evaluate as hyperthyroid heart disease (DC 7008) if doing so
would result in a higher evaluation than using the criteria
above.
Note (2): If ophthalmopathy is the sole finding, evaluate as
field vision, impairment of (DC 6080); diplopia (DC 6090); or
impairment of central visual acuity (DC 6061-6079).
7901 Thyroid gland, toxic adenoma of
Thyroid enlargement, tachycardia (more than 100 beats per
minute), eye involvement, muscular weakness, loss of weight,
and sympathetic nervous system, cardiovascular, or
gastrointestinal symptoms.................................... 100
Emotional instability, tachycardia, fatigability, and
increased pulse pressure or blood pressure................... 60
Tachycardia, tremor, and increased pulse pressure or blood
pressure..................................................... 30
Tachycardia, which may be intermittent, and tremor, or;
continuous medication required for control................... 10
Note (1): If disease of the heart is the predominant finding,
evaluate as hyperthyroid heart disease (DC 7008) if doing so
would result in a higher evaluation than using the criteria
above.
Note (2): If ophthalmopathy is the sole finding, evaluate as
field vision, impairment of (DC 6080); diplopia (DC 6090); or
impairment of central visual acuity (DC 6061-6079).
7902 Thyroid gland, nontoxic adenoma of
With disfigurement of the head or neck........................ 20
Without disfigurement of the head or neck..................... 0
Note: If there are symptoms due to pressure on adjacent organs
such as the trachea, larynx, or esophagus, evaluate under the
diagnostic code for disability of that organ, if doing so
would result in a higher evaluation than using this
diagnostic code.
7903 Hypothyroidism
Cold intolerance, muscular weakness, cardiovascular
involvement, mental disturbance (dementia, slowing of
thought, depression), bradycardia (less than 60 beats per
minute), and sleepiness...................................... 100
Muscular weakness, mental disturbance, and weight gain........ 60
Fatigability, constipation, and mental sluggishness........... 30
Fatigability, or; continuous medication required for control.. 10
7904 Hyperparathyroidism
Generalized decalcification of bones, kidney stones,
gastrointestinal symptoms (nausea, vomiting, anorexia,
constipation, weight loss, or peptic ulcer), and weakness.... 100
Gastrointestinal symptoms and weakness........................ 60
Continuous medication required for control.................... 10
Note: Following surgery or treatment, evaluate as digestive,
skeletal, renal, or cardiovascular residuals or as endocrine
dysfunction.
7905 Hypoparathyroidism
Marked neuromuscular excitability (such as convulsions,
muscular spasms (tetany), or laryngeal stridor) plus either
cataract or evidence of increased intracranial pressure (such
as papilledema).............................................. 100
Marked neuromuscular excitability, or; paresthesias (of arms,
legs, or circumoral area) plus either cataract or evidence of
increased intracranial pressure.............................. 60
Continuous medication required for control.................... 10
7907 Cushing's syndrome
As active, progressive disease including loss of muscle
strength, areas of osteoporosis, hypertension, weakness, and
enlargement of pituitary or adrenal gland.................... 100
Loss of muscle strength and enlargement of pituitary or
adrenal gland................................................ 60
With striae, obesity, moon face, glucose intolerance, and
vascular fragility........................................... 30
Note: With recovery or control, evaluate as residuals of
adrenal insufficiency or cardiovascular, psychiatric, skin,
or skeletal complications under appropriate diagnostic code.
7908 Acromegaly
[[Page 20447]]
Evidence of increased intracranial pressure (such as visual
field defect), arthropathy, glucose intolerance, and either
hypertension or cardiomegaly................................. 100
Arthropathy, glucose intolerance, and hypertension............ 60
Enlargement of acral parts or overgrowth of long bones, and
enlarged sella turcica....................................... 30
7909 Diabetes insipidus
Polyuria with near-continuous thirst, and more than two
documented episodes of dehydration requiring parenteral
hydration in the past year................................... 100
Polyuria with near-continuous thirst, and one or two
documented episodes of dehydration requiring parenteral
hydration in the past year................................... 60
Polyuria with near-continuous thirst, and one or more episodes
of dehydration in the past year not requiring parenteral
hydration.................................................... 40
Polyuria with near-continuous thirst.......................... 20
7911 Addison's disease (Adrenal Cortical Hypofunction)
Four or more crises during the past year...................... 60
Three crises during the past year, or; five or more episodes
during the past year......................................... 40
One or two crises during the past year, or; two to four
episodes during the past year, or; weakness and fatigability,
or; corticosteroid therapy required for control.............. 20
Note (1): An Addisonian ``crisis'' consists of the rapid onset
of peripheral vascular collapse (with acute hypotension and
shock), with findings that may include: anorexia; nausea;
vomiting; dehydration; profound weakness; pain in abdomen,
legs, and back; fever; apathy, and depressed mentation with
possible progression to coma, renal shutdown, and death.
Note (2): An Addisonian ``episode,'' for VA purposes, is a
less acute and less severe event than an Addisonian crisis
and may consist of anorexia, nausea, vomiting, diarrhea,
dehydration, weakness, malaise, orthostatic hypotension, or
hypoglycemia, but no peripheral vascular collapse.
Note (3): Tuberculous Addison's disease will be evaluated as
active or inactive tuberculosis. If inactive, these
evaluations are not to be combined with the graduated ratings
of 50 percent or 30 percent for non-pulmonary tuberculosis
specified under Sec. 4.88b. Assign the higher rating.
7912 Pluriglandular syndrome
Evaluate according to major manifestations.
7913 Diabetes mellitus
Requiring more than one daily injection of insulin, restricted
diet, and regulation of activities (avoidance of strenuous
occupational and recreational activities) with episodes of
ketoacidosis or hypoglycemic reactions requiring at least
three hospitalizations per year or weekly visits to a
diabetic care provider, plus either progressive loss of
weight and strength or complications that would be
compensable if separately evaluated.......................... 100
Requiring insulin, restricted diet, and regulation of
activities with episodes of ketoacidosis or hypoglycemic
reactions requiring one or two hospitalizations per year or
twice a month visits to a diabetic care provider, plus
complications that would not be compensable if separately
evaluated.................................................... 60
Requiring insulin, restricted diet, and regulation of
activities................................................... 40
Requiring insulin and restricted diet, or; oral hypoglycemic
agent and restricted diet.................................... 20
Manageable by restricted diet only............................ 10
Note (1): Evaluate compensable complications of diabetes
separately unless they are part of the criteria used to
support a 100 percent evaluation. Noncompensable
complications are considered part of the diabetic process
under diagnostic code 7913.
Note (2): When diabetes mellitus has been conclusively
diagnosed, do not request a glucose tolerance test solely for
rating purposes.
7914 Neoplasm, malignant, any specified part of the endocrine
system......................................................... 100
Note: A rating of 100 percent shall continue beyond the
cessation of any surgical, X-ray, antineoplastic chemotherapy
or other therapeutic procedure. 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.
7915 Neoplasm, benign, any specified part of the endocrine
system rate as residuals of endocrine dysfunction.
7916 Hyperpituitarism (prolactin secreting pituitary
dysfunction)
7917 Hyperaldosteronism (benign or malignant)
7918 Pheochromocytoma (benign or malignant)
Note: Evaluate diagnostic codes 7916, 7917, and 7918 as
malignant or benign neoplasm as appropriate.
7919 C-cell hyperplasia of the thyroid......................... 100
Note: A rating of 100 percent shall continue beyond the
cessation of any surgical, X-ray, antineoplastic chemotherapy
or other therapeutic procedure. 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.
------------------------------------------------------------------------
[FR Doc. 96-11281 Filed 5-6-96; 8:45 am]
BILLING CODE 8320-01-P
