04-12723. Schedule for Rating Disabilities; The Spine; Correction

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule; correction.

SUMMARY:

In a document published in the Federal Register on August 27, 2003 (68 FR 51454), we amended a portion of the Department of Veterans Affairs (VA) Schedule for Rating Disabilities that addresses the spine. The document inadvertently omitted text that previously appeared in the table of the proposed rule published in the Federal Register on September 4, 2002 (67 FR 56509). This document corrects that omission by reinserting the two missing notes (pertaining to code 5243) into the table.

DATES:

Effective Date: This correction is effective September 26, 2003.

FOR FURTHER INFORMATION CONTACT:

Audrey Tomlinson, Medical Officer, Policy and Regulations Staff (211B), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, [phone].

SUPPLEMENTARY INFORMATION:

A final rule, RIN 2900-AJ60; Schedule for Rating Disabilities; The Spine, was published on August 27, 2003 (68 FR 51454) (to be codified at 38 CFR 4.71a). Two notes that provide guidance with regard to rating intervertebral disc syndrome (diagnostic code 5243) that were published in the proposed rule in the Federal Register on September 4, 2002, (67 FR 56509) were inadvertently omitted from the final rule. As noted in the proposed rule, the amendments made editorial changes to the evaluation criteria for intervertebral disc syndrome to make them compatible with the new general rating formula and did not represent any substantive change.

Administrative Procedure Act

The change that this final rule makes merely corrects the omission of two notes (“Note (1)” and “Note (2)”) from the Spine Table. Accordingly, there is good cause for dispensing with the notice and comment and delayed effective date provisions of 5 U.S.C. 552 and 553.

For the reasons set out in the preamble, 38 CFR part 4, subpart B, is amended as set forth below:

Subpart B—[Amended]

1. The authority citation for part 4 continues to read as follows:

Authority: 38 U.S.C. 1155, unless otherwise noted.

2. In § 4.71a, the table titled “The Spine” is amended by adding Notes 1 and 2 at the end of the entries under the heading “Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes” to read as follows:

§ 4.71a

Schedule of ratings—musculoskeletal system.

* * * * *

Note (1):

For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

Note (2):

If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.

Dated: May 27, 2004.

Robert C. McFetridge,

Director, Regulations Management.