[Federal Register Volume 59, Number 11 (Tuesday, January 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1045]


[[Page Unknown]]

[Federal Register: January 18, 1994]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AE11

 

Schedule for Rating Disabilities; Genitourinary System 
Disabilities

AGENCY: Veterans Affairs.

ACTION: Final regulation.

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SUMMARY: The Department of Veterans Affairs (VA) has amended its 
Schedule for Rating Disabilities of the Genitourinary System. This 
amendment is based on a General Accounting Office (GAO) study noting 
that there has been no comprehensive review of the rating schedule 
since 1945, and recommending that such a review be conducted. The 
effect of this action is to update the genitourinary portion of the 
rating schedule to ensure that it uses current medical terminology, 
unambiguous criteria, and that it reflects medical advances which have 
occurred since the last review.

DATES: This amendment is effective February 17, 1994.

FOR FURTHER INFORMATION CONTACT: Bob Seavey, 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 December 1988, the General Accounting 
Office (GAO) recommended that VA prepare a plan for a comprehensive 
review of the rating schedule and, based on the results, revise the 
medical criteria accordingly. As part of the process to implement these 
recommendations, VA published a proposal to amend 38 CFR 4.115 and 
4.115a in the Federal Register of December 2, 1991 (56 FR 61216-20). 
Interested persons were invited to submit written comments, suggestions 
or objections on or before January 2, 1992. We received comments from 
the Veterans of Foreign Wars, the Disabled American Veterans, the 
Paralyzed Veterans of America, and VA employees.
    We have made a number of editorial changes, primarily of syntax and 
punctuation, throughout the final rule. These changes are intended to 
clarify the rating criteria and represent no substantive amendment. 
Generic terms such as ``severe,'' ``moderate,'' and ``mild,'' which 
preceded various evaluation criteria in the proposed regulations, have 
been removed. Rather than helping to explain or clarify the specific 
evaluation criteria which they precede, these terms inject an element 
of ambiguity not otherwise present. Under diagnostic code 7524, we have 
deleted the phrase ``other than undescended or congenitally 
undeveloped'' for the noncompensable evaluation criteria since the NOTE 
following adequately explains that an undescended or congenitally 
undeveloped testis is not ratable.
    We proposed that Sec. 4.115 be amended to allow separate evaluation 
of coexisting ``heart disease'' in the event of an absent kidney, or 
when chronic renal disease has progressed to the point where regular 
dialysis is required. One commenter pointed out that in addition to 
heart disease, hypertension is often manifested in cases of renal 
disease, but that the proposed regulatory language would preclude a 
separate evaluation for hypertension. He suggested that we substitute 
the term ``cardiovascular disease'' for ``heart disease.'' Although we 
agree that this provision should apply to hypertension as well as heart 
disease, we believe that the term ``cardiovascular'' is too broad since 
it might be interpreted to include cardiovascular conditions unrelated 
to renal dysfunction. We have therefore amended Sec. 4.115 to specify 
that coexisting heart disease or hypertension may be separately 
evaluated in the absence of one kidney or when the claimant requires 
dialysis.
    Our proposed rating formula for renal dysfunction under Sec. 4.115a 
included a requirement at the 100 percent level for blood urea nitrogen 
(BUN) and creatinine thresholds of more than 100mg% and 10mg%, 
respectively. One commenter felt that the proposed requirements are too 
high and suggested that 80mg% and 8mg% would be more appropriate. Upon 
further review, we have concluded that measurements over 80/8mg% 
suggest a need for dialysis and would therefore be a more appropriate 
threshold. We have accordingly amended the criteria for a 100 percent 
evaluation in Sec. 4.115a. In keeping with that change, we have also 
amended the ranges of BUN and creatinine readings required for an 80 
percent evaluation to 40-80mg% and 4-8mg%, respectively.
    Two commenters felt that the word ``invalidism'' in the proposed 
criteria for the 100 and 80 percent levels for renal dysfunction is 
inappropriate because it is archaic, too subjective, and in fact 
suggests a level of severity more consistent with entitlement to 
special monthly compensation. VA agrees, and has substituted the phrase 
``precluding more than sedentary activity'' for the 100 percent 
evaluation, and the phrase ``generalized poor health characterized by * 
* *'' for the 80 percent evaluation.
    Under the 60 percent evaluation level for renal dysfunction, we had 
proposed that qualifying manifestations of hypertension be referred to 
as ``moderate hypertension'' whereas under the 30 percent level we had 
proposed that hypertension be ``minimally compensable under diagnostic 
code 7101.'' One commenter recommended that hypertension be described 
consistently in terms of diagnostic code 7101 throughout the criteria 
for renal dysfunction. We agree. Such a change would promote not only a 
clearer understanding of the rule, but internal consistency within the 
rating schedule as well. We have therefore modified the criteria for a 
60 percent evaluation to require hypertension at least 40 percent 
disabling under diagnostic code 7101, for a 30 percent evaluation to 
require hypertension at least 10 percent disabling under diagnostic 
code 7101, and the zero percent evaluation to include hypertension non-
compensable under diagnostic code 7101.
    One commenter felt that either albumin and casts with a history of 
acute nephritis or renal dysfunction with mild hypertension warrants a 
10 percent evaluation rather than the zero percent we had proposed 
under the criteria for renal dysfunction. We do not concur. Albuminuria 
and granular casts are clinical findings which may or may not indicate 
active kidney disease, but which themselves are not inherently 
disabling. Since the level of compensation is determined primarily by 
the extent to which a condition is disabling, and since an asymptomatic 
condition, or combination of asymptomatic conditions, imposing no 
discernible industrial impairment does not warrant a compensable 
evaluation, we find no reason to assign these conditions a compensable 
evaluation in the absence of chronic kidney disease or hypertension 
which is compensable under diagnostic code 7101.
    Two commenters questioned the reduction of the evaluation for loss 
of a single kidney from 30 percent to zero percent disabling. Although 
long-term renal function returns to near normal due to hypertrophy of 
the remaining kidney, the significant anatomical alteration caused by 
removal of a kidney, the resulting surgical scar, and the precautions 
which must be taken to protect the remaining kidney, could reasonably 
be expected to prevent a veteran from engaging in certain, but by no 
means all, occupations. Upon further reconsideration, we have therefore 
elected to retain the minimum 30 percent evaluation for loss of a 
single kidney under diagnostic code 7500.
    One commenter felt that the proposed criteria for rating voiding 
dysfunction under Sec. 4.115a would be inadequate for evaluating 
veterans with neurogenic bladders who use either indwelling or 
intermittent catheterization to void, and suggested a separate 
diagnostic code for neurogenic bladder. Although a need for separate 
rating criteria was implied, the commenter offered no alternative 
criteria for our consideration.
    VA agrees that it would be useful to have a separate diagnostic 
code for this disability, which is common in cases of severe spinal 
cord injury. We have therefore added diagnostic code 7542 for 
neurogenic bladder with instructions to rate the condition under the 
criteria for voiding dysfunction, which we believe are adequate to 
evaluate neurogenic bladder. Neurogenic bladder is manifested as urine 
leakage or frequent urination, both of which correspond to categories 
of voiding dysfunction as proposed. In addition, the word ``appliance'' 
as used in the criteria for incontinence clearly includes all types of 
catheters as well as any other assistive device for urination.
    Under the general rating criteria for urinary frequency in 
Sec. 4.115a, we had proposed separate sets of evaluation criteria for 
daytime and nighttime frequency. The criteria for daytime frequency 
were assigned evaluations of 40, 20, and 10 percent. For nighttime 
frequency, awakening to void five or more times per night was proposed 
as 20 percent, awakening to void three to four times was assigned 10 
percent, and one to two times was non-compensable. One commenter felt 
that the evaluations for nighttime frequency should be higher than 
proposed, while another believed that the distinction between daytime 
and nighttime frequency is artificial and should be eliminated.
    Separate criteria for nighttime frequency were proposed since a 
patient may be more likely to report this symptom to an examining 
physician, especially in the early stages of renal disease. Upon 
further review, however, VA agrees that nighttime frequency is just as 
indicative of significant disease as daytime frequency, and that 
different evaluation levels are not warranted. We have therefore 
incorporated the three levels originally proposed for nighttime 
frequency with the 40, 20, and 10 percent levels under daytime 
frequency. Instances in which a person is awakened to void only once a 
night, however, have not been made compensable, since this degree of 
frequency does not, in our judgment, impose a disability significant 
enough to warrant the payment of compensation.
    One commenter felt that the frequency of the need to change 
absorbent materials under the criteria for rating voiding dysfunction 
is not a useful measure of incontinence because: (1) The changing of 
absorbent materials does not accurately quantify the degree of 
disability, (2) the wearing of absorbent materials may be inappropriate 
for paraplegics, and (3) there is no objective method to determine the 
frequency of the need to change absorbent materials.
    We do not concur. A person who needs to change absorbent materials 
often has a greater loss of voluntary control than one who needs 
changes less frequently. The frequency of changes can be objectively 
reported either by the veteran or the person providing care, with the 
frequency of the need for such changes determined by an examining 
physician. These criteria represent, in our judgment, a satisfactory 
means to measure urinary incontinence and, since no reasonable 
alternative has been suggested, we have elected to retain them. For 
some persons, wearing absorbent materials may be inappropriate; such 
people require the use of a catheter or some other means to compensate 
for the loss of control. As previously discussed, the criteria at the 
60 percent level addressing the use of such an appliance are adequate 
to evaluate the disabilities of those for whom the use of absorbent 
materials is inappropriate.
    One commenter remarked that the words ``increased to the next 
higher'' were unclear in the instruction for arteriolar nephrosclerosis 
following diagnostic code 7507. We agree that this language, which was 
retained from the prior rating schedule, is ambiguous. The intended 
effect is to recognize that heart disease or hypertension is more 
serious when the claimant also has renal disabilities. We have amended 
the instruction following diagnostic code 7507 to clarify this 
principle.
    Under the diagnostic codes for nephrolithiasis (7508), 
ureterolithiasis (7510), and stricture of the ureter (7511), a 30 
percent evaluation was proposed for recurrent stone formation requiring 
diet therapy, drug therapy, or frequent surgical therapy. One commenter 
believed a higher evaluation should be assigned for ``frequent surgical 
therapy,'' since frequent surgery implies a condition more severe than 
one controlled through diet or drug therapy. By ``surgical therapy'' we 
meant to include extraction through a catheter or fragmentation through 
such means as extracorporeal shock wave lithotripsy. To remove any 
ambiguity and thus avoid confusion, we have amended the criteria under 
diagnostic codes 7508, 7510, and 7511 to refer to ``invasive or non-
invasive procedures'' rather than ``surgical therapy,'' and we have 
replaced the term ``frequent'' with the more objective measurement of 
more than twice per year.
    One commenter stated that the words ``multiple urethroperineal'' in 
the evaluation criteria for fistula of the urethra (7519) were unclear. 
Once again, we agree that a term retained from the prior rating 
schedule is vague and potentially confusing. We have added the word 
``fistulae'' to indicate that when there are two or more fistulous 
tracts draining from the perineum a 100 percent evaluation will be 
assigned.
    Under diagnostic code 7531 (kidney transplants), we originally 
proposed that a follow-up examination be conducted six months after 
surgery in the same manner as for malignancies (diagnostic code 7528). 
Diagnostic code 7531 previously required assignment of a 100 percent 
evaluation with a prospective reduction two years after surgery. Three 
commenters stated that a period longer than six months is warranted 
because of the fragile condition of these patients, the complications 
of surgery, the side-effects of immunosuppressive therapy, and the risk 
of transplant rejection. One commenter suggested that a one year period 
would be reasonable.
    Considering the possibility of late immunologic, medical, and 
surgical complications, we believe it is more reasonable to assess 
residual disability one year after surgery instead of six months. We 
have therefore amended the NOTE following diagnostic code 7531 to state 
that a mandatory VA examination will be conducted one year after 
hospital discharge instead of the six months originally proposed.
    A minimum rating of 30 percent was proposed under the diagnostic 
code for kidney transplant for as long as a patient is on 
immunosuppressive medication. One commenter stated that almost all 
persons who have undergone transplant surgery permanently require 
immunosuppressive medication. Upon further review, VA agrees that it is 
so seldom that immunosuppressive therapy can be stopped after 
transplantation, that the proposed exception to the minimum evaluation 
under diagnostic code 7531 is not necessary. We have deleted that 
exception from the final rule.
    One commenter believed that there should be an evaluation level of 
30 percent in addition to the 20 percent level proposed under 
diagnostic code 7532, Renal tubular dysfunctions, since various renal 
tubular nephropathies may have severe disabling effects. Another 
commenter suggested that the category of renal tubular dysfunctions was 
too vague and seemed to embrace a variety of conditions which should be 
singly listed, and that they often render veterans unemployable due to 
the combination of treatment and symptoms.
    Renal tubular disorders include disorders of the proximal nephron 
function, disorders of function of the ascending limb of the loop of 
Henle, and disorders of distal nephron function. We have amended the 
parenthetical portion of the heading of diagnostic code 7532 to include 
additional examples of these diseases, which have common 
characteristics and should therefore be rated under the same criteria 
to ensure consistency. These conditions generally cause metabolic 
imbalances which can be adequately treated by replacement therapy; as 
such, in our judgment, they do not warrant an evaluation greater than 
20 percent. They may on occasion, however, result in more severe kidney 
dysfunction. For that reason we have added an instruction to 
alternatively rate this disability as renal dysfunction, which will 
allow evaluations greater than 20 percent.
    One commenter stated that in keeping with ``current BVA [Board of 
Veterans Appeals] policy,'' the diagnostic code for penile deformity 
with loss of erectile power (7522) should provide a 20 percent 
evaluation even when erectile power has been restored by means of a 
penile implant.
    VA does not concur. Under diagnostic code 7522, two distinct 
elements are required for a 20 percent evaluation: (1) Penile deformity 
and (2) loss of erectile power. If either element is absent following 
insertion of a penile implant or for any other reason the criteria for 
a 20 percent evaluation under this code are not met, and the 
instruction which the commenter requests is therefore not warranted. VA 
regulations are binding upon all agencies within the Department of 
Veterans Affairs, and neither BVA nor any other VA agency is free to 
adopt an official policy which is contrary to established regulations.
    The same commenter also requested that we add a NOTE to diagnostic 
code 7522 indicating entitlement to special monthly compensation under 
38 U.S.C. 1114(k).
    Although loss of erectile power establishes entitlement to special 
monthly compensation under 38 U.S.C. 1114(k), we do not believe that a 
NOTE to such effect in the rating schedule is warranted. The criteria 
regarding entitlement to special monthly compensation are extensive, 
very complicated, and seldom correspond exactly to evaluation criteria 
in the rating schedule. For that reason, it is important that raters 
refer to the regulations governing special monthly compensation rather 
than relying on cross-references in the rating schedule.
    One commenter objected to the proposed elimination of a compensable 
evaluation for loss of a single testicle under diagnostic code 7524, 
alleging that such loss disrupts normal endocrine function and 
interferes with the maintenance of secondary sex characteristics. VA 
does not concur. In fact, any retrogressive changes in secondary sex 
characteristics even following removal of both testes after sexual 
maturity would occur slowly, if at all (Oswald S. Lowsley and T.J. 
Kirwin, ``Clinical Urology'' 230 (Williams and Wilkins 1956)). A 
solitary testis is in most cases adequate to sustain normal endocrine 
function without hormone replacement therapy. No significant employment 
handicap would likely result from this condition and a compensable 
evaluation, in our judgment, is not warranted.
    The same commenter objected to the proposed elimination of the 
minimum rating of 20 percent for removal of the prostate gland 
(diagnostic code 7526). VA does not concur. Because of the development 
of improved surgical techniques for extraction of the prostate through 
the perineum, bladder, surrounding capsule, or urethra, a minimum 
disability evaluation of 20 percent is not warranted. Often the only 
residual of this surgery is sterility, which is compensated not under 
the rating schedule but by means of special monthly compensation under 
38 U.S.C. 1114(k). Should any other disability result, it would be 
rated under the diagnostic code for injuries, infections, hypertrophy, 
and postoperative residuals of the prostate gland (7527), with 
evaluations based on the criteria for voiding dysfunction or urinary 
tract infections. In our judgment, this provision allows for a broad 
enough range of evaluations to rate residual disability as established 
by medical examination.
    Three commenters urged that the previous convalescent period of one 
year following cancer treatment (diagnostic code 7528) be retained, 
stating that the complexity of certain medical procedures, the wide 
variety of possible side-effects, and the time required to recover from 
treatment precludes any realistic reduction of these recuperative 
periods.
    The commenters appear to have misinterpreted the proposed rule to 
mean that a convalescent evaluation will terminate after six months. 
The rule actually requires an examination, not a reduction, six months 
after the assignment of total benefits. If the claimant remains totally 
disabled, the 100 percent evaluation will continue without 
interruption. If a reduction in evaluation is warranted, it will be 
implemented under the provisions of 38 CFR 3.105(e).
    This application of total convalescence evaluations will take into 
account the wide array of possible side-effects and complications of 
treatment by ensuring that any changes in evaluation are supported by 
the specific findings of a current medical examination. A total 
evaluation will extend indefinitely after treatment is discontinued, 
with a required VA examination six months thereafter. If the results of 
this or any subsequent examination warrant a reduction in evaluation, 
the reduction will be implemented under the provisions of 38 CFR 
3.105(e). There can be no reduction at the end of six months since any 
proposed reduction would be based on the examination and the 
notification process can begin only after the examination is reviewed. 
This method also has the advantage of offering the veteran more 
contemporary notice of any proposed action and, under the provisions of 
38 CFR 3.105(e), expanding the opportunity to present evidence showing 
that the proposed action should not be taken. We have revised the 
wording of the NOTE based upon the concerns of the commenters, however, 
to ensure that it cannot be misinterpreted as requiring a reduction six 
months after treatment is terminated.
    Several commenters objected to the elimination of a minimum 10 
percent evaluation following treatment of cancer under diagnostic code 
7528. One commenter stated that malignancies of this kind result in a 
``permanent mental fixation.'' Another commenter stated that there may 
be residual damage to the genitourinary system from radiation 
treatment.
    VA acknowledges that disability often follows cancer treatment, and 
residual impairment of the genitourinary system will accordingly be 
rated as either voiding or renal dysfunction. Although any residual 
warranting compensation would be ascertainable on VA examination, the 
existence of such residuals cannot be presumed in every case. 
Psychiatric or any other complications are subject to service 
connection under 38 CFR 3.310(a) of this chapter. The recurrence of 
cancer at any time would warrant restoration of the 100 percent 
evaluation. Rating the actual residuals will in our judgment allow 
assignment of an evaluation reflecting the true severity of the 
individual disability.
    One commenter stated that because the proposed amendments included 
reductions in certain percentage evaluations, VA was exceeding the GAO 
mandate to review the rating schedule for the purpose of updating 
medical terminology and evaluation criteria.
    VA does not concur. VA's mandate to review the rating schedule 
derives from the statutory authority which Congress has granted the 
Secretary of Veterans Affairs to adopt a schedule of ratings, including 
the authority to establish percentage evaluations (38 U.S.C. 1155). 
Although GAO may recommend that the Secretary review the schedule from 
a particular perspective, it has no authority to limit the scope of any 
review which the Secretary subsequently conducts under that statutory 
authority. The GAO recommendations resulted from a study finding that 
the rating schedule uses outdated medical terminology, contains 
ambiguous rating criteria, and does not reflect recent medical 
advances. If it is to conduct a good faith review, particularly when 
considering medical advances, VA cannot preclude the possibility that 
some evaluations may be changed. Congress, in fact, specifically 
foresaw such a possibility when it enacted legislation to amend 38 
U.S.C. 1155 in order to protect the level of evaluations assigned under 
superseded rating criteria. (See 137 Cong. Rec. H5928 (daily ed. July 
29, 1991) (statement of Rep. Montgomery).)
    One commenter implied that the proposed changes could not be made 
without statistical studies showing the economic impact of 
genitourinary impairments on disabled individuals. He cited a 
statistical study conducted in the 1960s which he contends does not 
support the proposed reductions.
    The statute authorizing establishment of the schedule directs that 
``[t]he Secretary shall from time to time readjust the schedule of 
ratings in accordance with experience'' (emphasis supplied). Rather 
than requiring statistical studies or any other specific type of data, 
the statute clearly leaves the nature of the experience which warrants 
an adjustment, and by extension the manner in which any review is 
conducted, to the discretion of the Secretary. Although during the 
1970s VA considered adjusting the rating schedule based on the same 
statistical studies cited by the commenter, that approach proved to be 
unsatisfactory and the proposed changes were not adopted.
    To allow as much public participation in the process as possible, 
we published an Advance Notice of Proposed Rulemaking (ANPRM) in the 
Federal Register on August 21, 1989 (54 FR 34531-2). We received 
responses from VA employees, the Naval Physical Evaluation Board, the 
Veterans of Foreign Wars, the Disabled American Veterans, the Director 
of Urology Programs at the National Institutes of Health, and the 
general public. We also contracted with an outside consultant to 
suggest revisions. In formulating recommendations, the consultant 
convened a five-member panel of physicians, each specializing in a 
different aspect of urology. We developed our proposed changes only 
after reviewing all of the material received in response to the ANPRM, 
from the consultant, and from specialists from the Veterans Health 
Administration in renal diseases.
    One commenter believed that the proposed changes did not reflect 
the average person's ability to cope with genitourinary disorders as 38 
U.S.C. 1155 requires, but were instead based upon optimum success in 
overcoming the effects of disease and the results of surgery. 
Presumably the commenter was referring to the convalescent periods 
specified under various diagnostic codes in this portion of the 
schedule.
    VA does not concur. 38 U.S.C. 1155 directs that ``ratings shall be 
based, as far as practicable, upon the average impairments of earning 
capacity resulting from such injuries in civil occupations.'' The word 
``average,'' as used in the statute, refers to the ``usual or normal 
kind, amount, quality, rate, etc.'' (``Webster's New World 
Dictionary,'' Third College Edition). We have outlined above the range 
of medical advice available to us when we conducted this review. 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. We also note that 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. (See comments regarding diagnostic code 7528.)
    Another commenter believed that certain changes were proposed 
``with an eye towards cost cutting.'' As discussed above, the revisions 
were proposed based on medical considerations; no cost studies or 
projections were conducted in conjunction with this review. Cost 
cutting therefore was not an issue, and we believe that these revisions 
will prove to have negligible budget impact.
    One commenter stated that VA should consider the effects of 
genitourinary conditions on life expectancy when revising this portion 
of the rating schedule.
    VA does not concur. To consider a factor so far removed from ``the 
average impairments of earning capacity'' as the effects of various 
conditions on life expectancy would clearly exceed the parameters 
established by Congress in 38 U.S.C. 1155.
    One commenter contended that it would be unfair for VA to reduce 
any of the evaluations in the current rating schedule because doing so 
could prevent some veterans from maintaining their current levels of 
evaluation and thereby deprive them of the protection which would 
otherwise attach to those evaluation levels after 20 years under the 
provisions of 38 U.S.C. 110.
    VA does not concur. In section 103(a) of the Veterans' Benefits 
Programs Improvement Act of 1991 (Pub. L. 102-86), Congress modified 38 
U.S.C. 1155 to provide that a readjustment to the rating schedule will 
not result in a reduction of any disability evaluation in effect on the 
date of the readjustment unless that disability has actually improved. 
The statute effectively protects against the situation which the 
commenter anticipates. Since no evaluation may be reduced solely due to 
a readjustment to the rating schedule, a readjustment cannot compromise 
the potential for any veteran to have an evaluation preserved under the 
provisions of 38 U.S.C. 110.
    One commenter suggested that VA allow special monthly compensation 
at the level for aid and attendance whenever a veteran requires 
hemodialysis three or more times a week. Another commenter suggested 
that we allow special monthly compensation under 38 U.S.C. 1114 (k) for 
loss of a single kidney.
    VA does not concur. The entitlement criteria for special monthly 
compensation are established by Congress and codified at 38 U.S.C. 1114 
(k) through (s). Regulations implementing these statutory grants of 
special monthly compensation are found in VA's Adjudication regulations 
(38 CFR part 3) rather than in the Schedule for Rating Disabilities (38 
CFR part 4). This issue is therefore beyond the scope of the current 
rulemaking.
    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, 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.
    In accordance with Executive Order 12291, Federal Regulation, the 
Secretary has determined that this regulatory amendment is non-major 
for the following reasons:
    (1) It will not have an annual impact on the economy of $100 
million or more.
    (2) It will not cause a major increase in costs or prices.
    (3) It will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic or export markets.
    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: March 5, 1993.
Jesse Brown,
Secretary of Veterans Affairs.
    Editorial note: This document was received at the Office of the 
Federal Register on January 11, 1994.
    For the reasons set out in the preamble, 38 CFR part 4, subpart B, 
is 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 4.115 is amended by adding two sentences at the end of 
the section to read as follows:


Sec. 4.115  Nephritis.

    * * * If, however, absence of a kidney is the sole renal 
disability, even if removal was required because of nephritis, the 
absent kidney and any hypertension or heart disease will be separately 
rated. Also, in the event that chronic renal disease has progressed to 
the point where regular dialysis is required, any coexisting 
hypertension or heart disease will be separately rated.
    3. Section 4.115a is redesignated and revised as Sec. 4.115b and a 
new Sec. 4.115a is added to read as follows:


Sec. 4.115a  Ratings of the genitourinary system--dysfunctions.

    Diseases of the genitourinary system generally result in 
disabilities related to renal or voiding dysfunctions, infections, or a 
combination of these. The following section provides descriptions of 
various levels of disability in each of these symptom areas. Where 
diagnostic codes refer the decisionmaker to these specific areas 
dysfunction, only the predominant area of dysfunction shall be 
considered for rating purposes. Since the areas of dysfunction 
described below do not cover all symptoms resulting from genitourinary 
diseases, specific diagnoses may include a description of symptoms 
assigned to that diagnosis.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
Renal dysfunction:                                                      
  Requiring regular dialysis, or precluding more than sedentary         
   activity from one of the following: persistent edema and             
   albuminuria; or, BUN more than 80mg%; or, creatinine more            
   than 8mg%; or, markedly decreased function of kidney or other        
   organ systems, estpecially cardiovascular....................     100
  Persistent edema and albuminuria with BUN 40 to 80mg%; or,            
   creatinine 4 to 8mg%; or, generalized poor health                    
   characterized by lethargy, weakness, anorexia, weight loss,          
   or limitation of exertion....................................      80
  Constant albuminuria with some edema; or, definite decrease in        
   kidney function; or, hypertension at least 40 percent                
   disabling under diagnostic code 7101.........................      60
  Albumin constant or recurring with hyaline and granular casts         
   or red blood cells; or, transient or slight edema or                 
   hypertension at least 10 percent disabling under diagnostic          
   code 7101....................................................      30
  Albumin and casts with history of acute nephritis; or,                
   hypertension non-compensable under diagnostic code 7101......       0
Voiding dysfunction:                                                    
  Rate particular condition as urine leakage, frequency, or             
   obstructed voiding                                                   
  Continual Urine Leakage, Post Surgical Urinary Diversion,             
   Urinary Incontinence, or Stress Incontinence:                        
  Requiring the use of an appliance or the wearing of absorbent         
   materials which must be changed more than 4 times per day....      60
  Requiring the wearing of absorbent materials which must be            
   changed 2 to 4 times per day.................................      40
  Requiring the wearing of absorbent materials which must be            
   changed less than 2 times per day............................      20
Urinary frequency:                                                      
  Daytime voiding interval less than one hour, or; awakening to         
   void five or more times per night............................      40
  Daytime voiding interval between one and two hours, or;               
   awakening to void three to four times per night..............      20
  Daytime voiding interval between two and three hours, or;             
   awakening to void two times per night........................      10
Obstructed voiding:                                                     
  Urinary retention requiring intermittent or continuous                
   characterization.............................................      30
  Marked obstructive symptomatology (hesitancy, slow or weak            
   stream, decreased force of stream) with any one or                   
   combination of the following:                                        
    1. Post void residuals greater than 150 cc.                         
    2. Uroflowmetry; markedly diminished peak flow rate (less           
     than 10 cc/sec).                                                   
    3. Recurrent urinary tract infections secondary to                  
     obstruction.                                                       
    4. Stricture disease requiring periodic dilatation every 2          
     to 3 months................................................      10
  Obstructive symptomatology with or without stricture disease          
   requiring dilatation 1 to 2 times per year...................       0
Urninary tract infection:                                               
  Poor renal function: Rate as renal dysfunction.                       
  Recurrent symptomatic infection requiring drainage/frequent           
   hospitalization (greater than two times/year), and/or                
   requiring continuous intensive management....................      30
  Long-term drug therapy, 1-2 hospitalizations per year and/or          
   requiring intermittent intensive management..................      10
------------------------------------------------------------------------


Sec. 4.115b  Ratings of the genitourinary system--diagnoses.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
7500Kidney, removal of one:                                             
      Minimum evaluation........................................      30
      Or rate as renal dysfunction if there is nephritis,               
       infection, or pathology of the other.                            
7501Kidney, abscess of:                                                 
      Rate as urinary tract infection...........................      30
7502Nephritis, chronic:                                                 
      Rate as renal dysfunction.                                        
7504Pyelonephritis, chronic:                                            
      Rate as renal dysfunction or urinary tract infection,             
       whichever is predominant.                                        
7505Kidney, tuberculosis of:                                            
      Rate in accordance with Secs. 4.88b or 4.89, whichever is         
       appropriate.                                                     
7507Nephrosclerosis, arteriolar:                                        
      Rate according to predominant symptoms as renal                   
       dysfunction, hypertension or heart disease. If rated             
       under the cardiovascular schedule, however, the                  
       percentage rating which would otherwise be assigned will         
       be elevated to the next higher evaluation.                       
7508Nephrolithiasis:                                                    
      Rate as hydronephrosis, except for recurrent stone                
       formation requiring one or more of the following:                
        1. diet therapy                                                 
        2. drug therapy                                                 
        3. invasive or non-invasive procedures more than two            
         times/year.............................................      30
7509Hydronephrosis:                                                     
      Severe; Rate as renal dysfunction.                                
    Frequent attacks of colic with infection (pyonephrosis),            
     kidney function impaired...................................      30
    Frequent attacks of colic, requiring catheter drainage......      20
    Only an occasional attack of colic, not infected and not            
     requiring catheter drainage................................      10
7510Ureterolithiasis:                                                   
      Rate as hydronephrosis, except for recurrent stone                
       formation requiring one or more of the following:                
        1. diet therapy                                                 
        2. drug therapy                                                 
        3. invasive or non-invasive procedures more than two            
         times/year.............................................      30
7511Ureter, stricture of:                                               
      Rate as hydronephrosis, except for recurrent stone                
       formation requiring one or more of the following:                
        1. diet therapy                                                 
        2. drug therapy                                                 
        3. invasive or non-invasive procedures more than two            
         times/year.............................................      30
7512Cystitis, chronic, includes interstitial and all etiologies,        
 infectious and non-infectious:                                         
      Rate as voiding dysfunction.                                      
7515Bladder, calculus in, with symptoms interfering with                
 function:                                                              
      Rate as voiding dysfunction                                       
7516Bladder, fistula of:                                                
      Rate as voiding dysfunction or urinary tract infection,           
       whichever is predominant.                                        
      Postoperative, superapubic cystotomy......................     100
7517Bladder, injury of:                                                 
      Rate as voiding dysfunction.                                      
7518Urethra, stricture of:                                              
      Rate as voiding dysfunction.                                      
7519Urethra, fistual of:                                                
      Rate as voiding dysfunction.                                      
      Multiple urethroperineal fistulae.........................     100
7520Penis, removal of half or more..............................      30
      Or rate as voiding dysfunction.                                   
7521Penis removal of glans......................................      20
      Or rate as voiding dysfunction.                                   
7522Penis, deformity, with loss of erectile power...............      20
7523Testis, atrophy complete:                                           
      Both......................................................      20
      One.......................................................       0
7524Testis, removal:                                                    
      Both......................................................      30
      One.......................................................       0
      Note--In cases of the removal of one testis as the result         
       of a service-incurred injury or disease, other than an           
       descended or congenitally undeveloped testis, with the           
       absence or nonfunctioning of the other testis unrelated          
       to service, an evaluation of 30 percent will be assigned         
       for the service-connected testicular loss. Testis,               
       undescended, or congenitally undeveloped is not a ratable        
       disability.                                                      
7525Epididymo-orchitis, chronic only:                                   
      Rate as urinary tract infection.                                  
      For tubercular infections: Rate in accordance with Secs.          
       4.88b or 4.89, whichever is appropriate.                         
7527Prostate gland injuries, infections, hypertrophy,                   
 postoperative residuals:                                               
      Rate as voiding dysfunction or urinary tract infection,           
       whichever is predominant.                                        
7528Malignant neoplasms of the genitourinary system.............     100
      Note--Following the cessation of surgical, X-ray,                 
       antineoplastic chemotherapy 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 or any          
       subsequent examination shall be subject to the provisions        
       of Sec. 3.105(e) of this chapter. If there has been no           
       local reoccurrence or metastasis, rate on residuals as           
       voiding dysfunction or renal dysfunction, whichever is           
       predominant.                                                     
7529Benign neoplasms of the genitourinary system:                       
      Rate as voiding dysfunction or renal dysfunction,                 
       whichever is predominant.                                        
7530Chronic renal disease requiring regular dialysis:                   
      Rate as renal dysfunction.                                        
7531Kidney transplant:                                                  
      Following transplant surgery..............................     100
      Thereafter: Rate on residuals as renal dysfunction,               
       minimum rating...........................................      30
      Note--The 100 percent evaluation shall be assigned as of          
       the date of hospital admission for transplant surgery and        
       shall continue with a mandatory VA examination one year          
       following hospital discharge. 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.                                                         
7532Renal tubular disorders (such as renal glycosurias,                 
 aminoacidurias, renal tubular acidosis, Fanconi's syndrome,            
 Bartter's syndrome, related disorders of Henle's loop and              
 proximal or distal nephron function, etc.):                            
      Minimum rating for symptomatic condition..................      20
      Or rate as renal dysfunction.                                     
7533Cystic diseases of the kidneys (polycystic disease, uremic          
 medullary cystic disease, Medullary sponge kidney, and similar         
 conditions):                                                           
      Rate as renal dysfunction.                                        
7534Atherosclerotic renal disease (renal artery stenosis or             
 atheroembolic renal disease):                                          
      Rate as renal dysfunction.                                        
7535Toxic nephropathy (antibotics, radiocontrast agents,                
 nonsteroidal anti-inflammatory agents, heavy metals, and               
 similar agents):                                                       
      Rate as renal dysfunction.                                        
7536Glomerulonephritis:                                                 
      Rate as renal dysfunction.                                        
7537Interstitial nephritis:                                             
      Rate as renal dysfunction.                                        
7538Papillary necrosis:                                                 
      Rate as renal dysfunction.                                        
7539Renal amyloid disease:                                              
      Rate as renal dysfunction.                                        
7540Disseminated intravascular coagulation with renal cortical          
 necrosis:                                                              
      Rate as renal dysfunction.                                        
7541Renal involvement in diabetes mellitus, sickle cell anemia,         
 systemic lupus erythematosus, vasculitis, or other systemic            
 disease processes.                                                     
      Rate as renal dysfunction.                                        
7542Neurogenic bladder:                                                 
      Rate as voiding dysfunction.                                      
------------------------------------------------------------------------


[FR Doc. 94-1045 Filed 1-14-94; 8:45 am]
BILLING CODE 8320-01-P