[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39873-39877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19386]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AE95
Schedule for Rating Disabilities; Infectious Diseases, Immune
Disorders and Nutritional Deficiencies (Systemic Conditions)
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends that portion of the Department of
Veterans Affairs (VA) Schedule for Rating Disabilities concerning
Infectious Diseases, Immune Disorders and Nutritional Deficiencies
(formerly entitled Systemic Conditions). The effect of this action is
to update this portion of the rating schedule to ensure that it uses
current medical terminology, unambiguous criteria, and that it reflects
medical advances that have occurred since the last review.
EFFECTIVE DATE: This amendment is effective August 30, 1996.
FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Ave. NW,
Washington DC, 20420, (202) 273-7230.
SUPPLEMENTARY INFORMATION: As part of the first comprehensive review of
its Schedule for Rating Disabilities since 1945, VA published in the
Federal Register of April 30, 1993 (58 FR 26083-87) a proposal to amend
the portion of the Schedule for Rating Disabilities concerning Systemic
Conditions. This document has renamed that portion of the rating
schedule as Infectious Diseases, Immune Disorders and Nutritional
Deficiencies. Interested persons were invited to submit written
comments on or before June 29, 1993. We received comments from the
Disabled American Veterans and the Paralyzed Veterans of America.
The final rule includes a diagnostic code (DC 6354) and diagnostic
criteria (38 CFR 4.88a) for chronic fatigue syndrome. These provisions
for chronic fatigue syndrome were added to the portion of the rating
schedule then titled Systemic Conditions by a final rule published in
the Federal Register of July 19, 1995 (60 FR 37012-13).
We proposed to reduce or eliminate the convalescence periods for
several infectious diseases, and both commenters disagreed with those
proposals.
We proposed to change the convalescent periods for Asiatic cholera
(DC 6300), Bartonellosis (DC 6306), and scrub typhus (DC 6317) from six
months to three months, noting that when treated in a straightforward
manner, the active phase of the diseases resolves quickly, and need for
convalescence is typically much less than six months. One commenter
questioned what ``treated in a straightforward manner'' means. A second
commenter felt that a shorter convalescent period for Bartonellosis is
not justified because convalescence is slow, and gradual normalization
of red blood cell mass begins three to six weeks after onset of
disease.
The six-month periods of convalescence for these conditions were
established prior to the modern antibiotic era, and were appropriate at
the time. However, with modern therapy, the course of these infectious
diseases has dramatically improved. Scrub typhus deaths are rare, and
convalescence is short (``Harrison's Principles of Internal Medicine''
760 (Jean D. Wilson, M.D., et al., eds., 12th ed. 1991)); with specific
therapy, recovery is prompt and uneventful (``The Merck Manual'' 173
16th ed. 1992). Similarly, treatment for Asiatic cholera is simple, and
the condition is self-limited to a few days (Harrison, 632).
Bartonellosis responds rapidly to antibiotics and the red blood cells
stabilize in about six weeks (Harrison, 634). While the characteristic
severe anemia that occurs in an individual with Bartonellosis may
require time after treatment to resolve, three months is an adequate
period of convalescence in the average person. We have therefore
adopted the proposed provisions, which provide for a three-month
convalescent evaluation for these conditions.
The previous schedule called for a 100 percent evaluation for
leprosy (DC 6302) as active disease and for one year's convalescence.
We proposed to remove the one-year period of convalescence. One
commenter said that a convalescent period should be retained because of
the serious nature of the disease, and another questioned whether there
is a medical basis for the change.
On further consideration, VA agrees that a continued 100 percent
evaluation
[[Page 39874]]
for convalescence of leprosy is warranted because the disease is
debilitating, sometimes extremely so, and a period of convalescence is
warranted to allow recovery of strength. Accordingly, we have amended
DC 6302 to continue the 100 percent evaluation indefinitely when the
disease is no longer active. Further, the final rule amends DC 6302 to
require an examination six months after the date that an examining
physician has determined the leprosy is inactive. Any change in
evaluation will be carried out under the provisions of Sec. 3.105(e).
This will assure that a total evaluation will continue long enough to
allow recovery from the debilitating effects of the disease, and will
also assure that the extent of any residual impairment is documented by
examination. This method of determining the duration of the period of
convalescence is consistent with the method we have used following
treatment of malignancies, in previously published rules that revised
other sections of the rating schedule.
The previous schedule provided a 100 percent evaluation for
visceral leishmaniasis (DC 6301) as active disease and for one year's
convalescence. We proposed to remove the one-year period of
convalescence. One commenter questioned whether there is any medical
basis for the change. Another commenter said that visceral
leishmaniasis is still a debilitating disease and warrants a reasonable
convalescent period.
In view of the frequency of debilitation in visceral leishmaniasis,
with findings such as hepatosplenomegaly, emaciation, and pancytopenia,
we have determined that a period of convalescence for DC 6302 similar
to that for leprosy is appropriate. We have added a note to continue
the 100 percent evaluation indefinitely when treatment for active
leishmaniasis has been completed, and to require an examination six
months after cessation of treatment. Any change in evaluation will be
carried out under the provisions of Sec. 3.105(e). This will assure
that a total evaluation will continue long enough to allow recovery
from the debilitating effects of the disease, and will also assure that
the extent of any residual impairment is documented by examination.
Another commenter stated that any reduction in the convalescence
period exceeds the Congressional mandate that ratings be based upon
``average impairment.''
VA does not concur. The convalescence periods adopted in this
change, as discussed above, represent, in our judgment, neither the
longest nor the shortest periods that any individual patient might
require for recovery, but the usual or normal periods during which an
average patient, under normal circumstances, would be expected to
recover from a specific condition.
Although the proposed regulation made only editorial changes to the
evaluation criteria for beriberi, DC 6314, both commenters argued that
the evaluation criteria at the 30 and 60 percent and 60 and 100 percent
levels for beriberi were nearly identical and therefore unrealistic.
We agree and have revised the evaluation criteria for beriberi to
reflect the different levels of disability with specific clinical
symptoms. A 100 percent evaluation requires congestive heart failure,
anasarca, or Wernicke-Korsakoff syndrome. The 60 percent level requires
cardiomegaly or peripheral neuropathy with footdrop or atrophy of thigh
or calf muscles. The 30 percent level requires peripheral neuropathy
with absent knee or ankle jerk and loss of sensation or weakness,
fatigue, anorexia, dizziness, heaviness and stiffness of legs, headache
or sleep disturbance. The revised criteria establish clear distinctions
between the evaluation levels and will allow for more realistic and
consistent evaluations.
We proposed to delete the previous evaluation formula for
filariasis, DC 6305, which provided a 100 percent evaluation for the
initial infection or severe recurrences, 60 and 30 percent evaluations
for the chronic form of the disease with beginning permanent deformity
or while symptomatic, and a zero percent evaluation if the disease
subsided after a single attack. A second set of evaluation criteria for
permanent deformities of an extremity or of the genitalia provided
levels of 60 percent for ``severe,'' 30 percent for ``moderate,'' and
10 percent for ``mild,'' and these evaluations for permanent
deformities could be combined among themselves to cover multiple
involvements. We proposed to provide a 100 percent evaluation while the
disease is active, and to rate the residuals of the disease under the
appropriate body system. One commenter felt that deleting the formula
does not improve the schedule because the peculiarities of the disease
require more detailed evaluation criteria.
We do not agree. The previous dual formula, plus the subjectivity
of criteria such as ``mild'', may have resulted in inconsistent
evaluations.
Any time the disease is active, it produces total disability, and
this is reflected in the new criteria. The most equitable and
consistent way to evaluate chronic residuals such as lymphadenitis or
deformities of an extremity or of the genitalia, however, is to use
evaluation criteria specifically intended for the body system affected.
While allowing for the broadest possible scope of evaluations, this
method will also assure more consistent evaluations because they will
be based on more objective criteria.
One commenter felt that the criteria for evaluation of HIV-Related
Illness, DC 6351, should be based on the 1993 revised classification
system for the disease issued by the Center for Disease Control (CDC).
VA's Schedule for Rating Disabilities is designed to evaluate
functional impairment (See 38 CFR 4.10), whereas the CDC classification
system for HIV infection is designed to guide the medical management of
persons infected with HIV and for HIV infection surveillance. Under the
CDC classification system, an individual is placed in one of three
categories based on the presence of clinical conditions associated with
HIV infection and on T4 cell counts. The condition is always classified
at the most advanced category it has reached even though the specific
complication or infection warranting the classification subsequently
resolves. That system is clearly not compatible with VA's Schedule for
Rating Disabilities because the severity of the functional impairment
caused by the conditions used to categorize the HIV infection under the
CDC system varies significantly.
One commenter, noting that there were no zero percent evaluations
proposed for any conditions other than HIV-Related Illness, suggested
that we add zero percent evaluations for every diagnostic code in this
section.
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 unless the predictable effects of a particular
condition are likely to result in a situation where a rating agency
must determine whether a commonly occurring finding more nearly
approximates the requirements for a ten percent or zero percent
evaluation. (See 38 CFR 4.7.) Such a situation is the presence of
lymphadenopathy in an otherwise asymptomatic individual who is HIV
positive. In our judgment, lymphadenopathy does not warrant a ten
percent evaluation, and in order to
[[Page 39875]]
ensure that rating agencies consistently assign a zero percent
evaluation, we have included zero percent evaluation criteria under DC
6351. For the five other conditions in this section where we have
provided multiple evaluation levels, in our judgment there are no
commonly occurring effects that would make it unclear as to whether a
zero or higher evaluation would be warranted.
The proposed rule, which would require stomatitis, persistent
diarrhea and symmetrical dermatitis for a 40 percent evaluation for
pellagra, DC 6315, was substantially unchanged from the previous rule.
One commenter felt that the requirement of ``persistent diarrhea''
is too stringent. He noted that the term ``persistent'' is qualitative
and suggested that it be replaced with a more reasonable, quantifiable
alternative, but offered no alternate language for us to consider.
We agree in principle and have revised the criteria for both
pellagra and avitaminosis (DC 6313), which have the same evaluation
formula. While retaining the five evaluation levels, we have removed
the adjectives modifying diarrhea in the 40 and 20 percent levels, and
deleted the requirement for diarrhea at the 10 percent level. Without
changing the essence of the criteria, this will give the rater clear
instructions as to how to evaluate the disability and eliminate
qualitative adjectives from the evaluation criteria.
The previous evaluation formula for brucellosis, DC 6316, provided
a 100 percent evaluation for the active febrile disease with
complications such as arthritis; 50, 30 and 10 percent evaluations for
the chronic form of the disease; and a Note instructing the rating
specialist to rate complications separately. We proposed to revise this
formula to provide a 100 percent evaluation while the disease is
active, and to rate the residuals of the disease under the appropriate
body system. One commenter felt that unless the previous evaluation
criteria for brucellosis are retained, recurrent febrile undulation
cannot be properly evaluated.
We disagree. The criteria in the previous rating schedule could
lead to inconsistency in evaluations because arthritis and other
complications were included as part of a 100 percent evaluation, but
were also identified in the note as complications to be rated
separately. By providing clear instructions to evaluate the active form
of the disease as totally disabling and to rate residuals under the
appropriate body system, any ambiguity is removed from this evaluation
formula. The undulating or intermittent fever form of this disease is
rare (Cecil, Textbook of Medicine, 19th edition, p.1727-8), but, in any
event, it would be evaluated as the active incapacitating febrile stage
and would be assigned a 100 percent evaluation.
We have revised the note proposed under DC 6350 (lupus
erythematosus), to make it more clear that lupus erythematosus is
evaluated either by combining the evaluations for residuals or by
evaluating under the DC 6350 criteria, whichever method results in a
higher evaluation.
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, 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 action has been reviewed by the Office of
Management and Budget under Executive Order 12866, Regulatory Planning
and Review, dated September 30, 1993.
The Catalog of Federal Domestic Assistance numbers are 64.104
and 64.109.
List of Subjects in 38 CFR Part 4
Disability benefits, Individuals with disabilities, Pensions,
Veterans.
Approved: March 7, 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 B--Disability Ratings
2. The undesignated center heading appearing before Sec. 4.88 is
revised to read as follows:
Infectious Diseases, Immune Disorders and Nutritional Deficiencies
4.88 [Removed and reserved]
3. Section 4.88 is removed and that section is reserved.
4. Section 4.88b is revised to read as follows:
Sec. 4.88b Schedule of ratings--infectious diseases, immune disorders
and nutritional deficiencies.
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
6300 Cholera, Asiatic:
As active disease, and for 3 months convalescence...... 100
Thereafter rate residuals such as renal necrosis under the
appropriate system
6301 Visceral Leishmaniasis:
During treatment for active disease.................... 100
Note: A 100 percent evaluation shall continue beyond the cessation
of treatment for active disease. 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. Rate residuals
such as liver damage or lymphadenopathy under the appropriate
system
6302 Leprosy (Hansen's Disease):
As active disease...................................... 100
Note: A 100 percent evaluation shall continue beyond the date that
an examining physician has determined that this has become
inactive. Six months after the date of inactivity, 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. Rate residuals such as skin lesions or peripheral
neuropathy under the appropriate system
6304 Malaria:
As active disease...................................... 100
[[Page 39876]]
Note: The diagnosis of malaria depends on the identification of the
malarial parasites in blood smears. If the veteran served in an
endemic area and presents signs and symptoms compatible with
malaria, the diagnosis may be based on clinical grounds alone.
Relapses must be confirmed by the presence of malarial parasites in
blood smears
Thereafter rate residuals such as liver or spleen damage under the
appropriate system
6305 Lymphatic Filariasis:
As active disease...................................... 100
Thereafter rate residuals such as epididymitis or lymphangitis under
the appropriate system
6306 Bartonellosis:
As active disease, and for 3 months convalescence...... 100
Thereafter rate residuals such as skin lesions under the appropriate
system
6307 Plague:
As active disease...................................... 100
Thereafter rate residuals such as lymphadenopathy under the
appropriate system
6308 Relapsing Fever:
As active disease...................................... 100
Thereafter rate residuals such as liver or spleen damage or central
nervous system involvement under the appropriate system
6309 Rheumatic fever:
As active disease...................................... 100
Thereafter rate residuals such as heart damage under the appropriate
system
6310 Syphilis, and other treponemal infections:
Rate the complications of nervous system, vascular system, eyes or
ears. (See DC 7004, syphilitic heart disease, DC 8013,
cerebrospinal syphilis, DC 8014, meningovascular syphilis, DC 8015,
tabes dorsalis, and DC 9301, dementia associated with central
nervous system syphilis)
6311 Tuberculosis, miliary:
As active disease...................................... 100
Inactive: See Secs. 4.88c and 4.89.
6313 Avitaminosis:
Marked mental changes, moist dermatitis, inability to
retain adequate nourishment, exhaustion, and cachexia. 100
With all of the symptoms listed below, plus mental
symptoms and impaired bodily vigor.................... 60
With stomatitis, diarrhea, and symmetrical dermatitis.. 40
With stomatitis, or achlorhydria, or diarrhea.......... 20
Confirmed diagnosis with nonspecific symptoms such as:
decreased appetite, weight loss, abdominal discomfort,
weakness, inability to concentrate and irritability... 10
6314 Beriberi:
As active disease:
With congestive heart failure, anasarca, or Wernicke-
Korsakoff syndrome.................................... 100
With cardiomegaly, or; with peripheral neuropathy with
footdrop or atrophy of thigh or calf muscles.......... 60
With peripheral neuropathy with absent knee or ankle
jerks and loss of sensation, or; with symptoms such as
weakness, fatigue, anorexia, dizziness, heaviness and
stiffness of legs, headache or sleep disturbance...... 30
Thereafter rate residuals under the appropriate body
system.
6315 Pellagra:
Marked mental changes, moist dermatitis, inability to
retain adequate nourishment, exhaustion, and cachexia. 100
With all of the symptoms listed below, plus mental
symptoms and impaired bodily vigor.................... 60
With stomatitis, diarrhea, and symmetrical dermatitis.. 40
With stomatitis, or achlorhydria, or diarrhea.......... 20
Confirmed diagnosis with nonspecific symptoms such as:
decreased appetite, weight loss, abdominal discomfort,
weakness, inability to concentrate and irritability... 10
6316 Brucellosis:
As active disease...................................... 100
Thereafter rate residuals such as liver or spleen damage or
meningitis under the appropriate system
6317 Typhus, scrub:
As active disease, and for 3 months convalescence...... 100
Thereafter rate residuals such as spleen damage or skin conditions
under the appropriate system
6318 Melioidosis:
As active disease...................................... 100
Thereafter rate residuals such as arthritis, lung lesions or
meningitis under the appropriate system
6319 Lyme Disease:
As active disease...................................... 100
Thereafter rate residuals such as arthritis under the appropriate
system
6320 Parasitic diseases otherwise not specified:
As active disease...................................... 100
Thereafter rate residuals such as spleen or liver damage under the
appropriate system
6350 Lupus erythematosus, systemic (disseminated):
Not to be combined with ratings under DC 7809 Acute,
with frequent exacerbations, producing severe
impairment of health.................................. 100
Exacerbations lasting a week or more, 2 or 3 times per
year.................................................. 60
Exacerbations once or twice a year or symptomatic
during the past 2 years............................... 10
Note: Evaluate this condition either by combining the evaluations
for residuals under the appropriate system, or by evaluating DC
6350, whichever method results in a higher evaluation
6351 HIV-Related Illness:
AIDS with recurrent opportunistic infections or with
secondary diseases afflicting multiple body systems;
HIV-related illness with debility and progressive
weight loss, without remission, or few or brief
remissions............................................ 100
Refractory constitutional symptoms, diarrhea, and
pathological weight loss, or; minimum rating following
development of AIDS-related opportunistic infection or
neoplasm.............................................. 60
[[Page 39877]]
Recurrent constitutional symptoms, intermittent
diarrhea, and on approved medication(s), or; minimum
rating with T4 cell count less than 200, or Hairy Cell
Leukoplakia, or Oral Candidiasis...................... 30
Following development of definite medical symptoms, T4
cell of 200 or more and less than 500, and on approved
medication(s), or; with evidence of depression or
memory loss with employment limitations............... 10
Asymptomatic, following initial diagnosis of HIV
infection, with or without lymphadenopathy or
decreased T4 cell count............................... 0
Note (1): The term ``approved medication(s)'' includes medications
prescribed as part of a research protocol at an accredited medical
institution.
Note (2): Psychiatric or central nervous system manifestations,
opportunistic infections, and neoplasms may be rated separately
under appropriate codes if higher overall evaluation results, but
not in combination with percentages otherwise assignable above
6354 Chronic Fatigue Syndrome (CFS):
Debilitating fatigue, cognitive impairments (such as inability to
concentrate, forgetfulness, confusion), or a combination of other
signs and symptoms:
Which are nearly constant and so severe as to restrict
routine daily activities almost completely and which
may occasionally preclude self-care................... 100
Which are nearly constant and restrict routine daily
activities to less than 50 percent of the pre-illness
level, or; which wax and wane, resulting in periods of
incapacitation of at least six weeks total duration
per year.............................................. 60
Which are nearly constant and restrict routine daily
activities to 50 to 75 percent of the pre-illness
level, or; which wax and wane, resulting in periods of
incapacitation of at least four but less than six
weeks total duration per year......................... 40
Which are nearly constant and restrict routine daily
activities by less than 25 percent of the pre-illness
level, or; which wax and wane, resulting in periods of
incapacitation of at least two but less than four
weeks total duration per year......................... 20
Which wax and wane but result in periods of
incapacitation of at least one but less than two weeks
total duration per year, or; symptoms controlled by
continuous medication................................. 10
Note: For the purpose of evaluating this disability, the condition
will be considered incapacitating only while it requires bed rest
and treatment by a physician.
------------------------------------------------------------------------
[FR Doc. 96-19386 Filed 7-30-96; 8:45 am]
BILLING CODE 8320-01-P
