[Federal Register Volume 59, Number 70 (Tuesday, April 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8555]


[[Page Unknown]]

[Federal Register: April 12, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AF22

 

Schedule for Rating Disabilities; Diseases of the Ear and Other 
Sense Organs

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its rating schedule regarding evaluation of diseases of the ear and 
other sense organs. This amendment is necessary in order to comply with 
a General Accounting Office (GAO) study, which recommended that medical 
criteria in the rating schedule be reviewed and updated. The intended 
effect is to update the portion of the Schedule for Rating Disabilities 
pertaining to diseases of the ear and other sense organs to ensure that 
it uses current medical terminology and unambiguous criteria for 
evaluating these disabilities and reflects recent medical advances.

DATES: Comments must be received on or before June 13, 1994. Comments 
will be available for public inspection until June 21, 1994. This 
change is proposed to be effective 30 days after the date of 
publication of the final rule.

ADDRESSES: Interested persons are invited to submit written comments, 
suggestions, or objections regarding this change to the Secretary of 
Veterans Affairs (271A), Department of Veterans Affairs, 810 Vermont 
Avenue NW., Washington, DC 20420. All written comments received will be 
available for public inspection only in the Veterans Services Unit, 
room 170, at the above address between the hours of 8 a.m. and 4:30 
p.m., Monday through Friday (except holidays), until June 21, 1994.

FOR FURTHER INFORMATION CONTACT: John L. Roberts, Consultant, 
Regulations Staff, Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420, (202) 233-3005.

SUPPLEMENTARY INFORMATION: In response to the advance notice of 
proposed rulemaking published in the Federal Register on May 2, 1991, 
we received comments and suggestions from VA medical doctors and VA 
Rating Specialists.
    The comments included suggestions that we delete several diagnostic 
codes, include diagnostic codes for additional conditions, and change 
evaluation criteria for a number of conditions. We have considered all 
of these suggestions and implemented several as explained in the 
following proposal.
    If medical terminology in the rating schedule is outdated, it is 
difficult for a rating specialist to accurately associate medical 
evidence with the proper evaluation criteria. For that reason, we 
propose to update the medical terms which identify diseases of the ear 
so that the schedule uses the most common terms.
    In addition to publishing an advance notice of proposed rulemaking, 
we also contracted with an outside consultant to recommend changes to 
the evaluation criteria to ensure that the schedule uses current 
medical terminology and unambiguous criteria, and that it reflects 
medical advances which have occurred since the last review. The 
consultant convened a panel of non-VA specialists to review that 
portion of the rating schedule dealing with hearing and ear conditions 
in order to formulate recommendations.
    We are proposing to adopt many of the recommendations the 
contractor submitted. Some recommendations, however, addressed areas 
other than evaluation criteria, such as percentage evaluations and 
frequency of examinations. Since these suggestions are clearly beyond 
the scope of the contract and deal with issues which would affect the 
internal consistency of the entire rating schedule rather than one 
section, we have generally not adopted them.
    We propose to change the terminology describing several of the 
conditions in this section for clarity and to reflect current medical 
terminology. Under diagnostic code 6201, the term ``otitis media, 
catarrhal, chronic'' is outdated and we propose to replace it with 
``chronic otitis media, with effusion (serous otitis media).'' 
Similarly, ``chronic otitis externa'' is the medically preferred term 
for ``auditory canal, disease of'' and we propose to use it as the 
heading for diagnostic code 6210. Meniere's syndrome (diagnostic code 
6205) is often referred to as ``endolymphatic hydrops'' and we propose 
to add this designation in parenthesis to the heading of this 
diagnostic code. When first included in the rating schedule, the term 
``chronic labyrinthitis'' under diagnostic code 6204 was used to 
indicate pathology affecting organs of equilibrium. That term, however, 
is not used in current medical practice; these conditions are currently 
described as vestibular disorders. For this reason, we propose to 
change the heading of code 6204 to ``peripheral vestibular disorders.'' 
Since the word ``neoplasm'' connotes a pathological abnormality better 
than the term ``new growth,'' we propose to substitute that word under 
diagnostic codes 6208 and 6209, which pertain to malignant and benign 
conditions, respectively.
    A number of grammatical elements are useful in eliminating 
ambiguity and ensuring that the schedule presents rating criteria as 
precisely as possible. We are proposing editorial changes, primarily of 
syntax and punctuation, throughout this portion of the schedule. These 
changes are intended to clarify the rating criteria and represent no 
substantive amendment.
    Section 4.85 describes the use of tables VI and VIa in the 
evaluation of hearing impairment. Table VI is a chart of average 
puretone decibel losses and speech discrimination percentages, with 
conversion to Roman numeral designations where the values intersect. 
Table VIa assigns Roman numeral designations to ranges of average 
puretone decibel loss without regard to speech discrimination. The 
Roman numeral designations derived from tables VI or VIa for each ear 
are then transferred to Table VII and combined to yield diagnostic 
codes and disability percentages from 0 to 100. Higher numeric 
designations equate to a higher disability percentage. Currently table 
VIa is reserved for cases of language impairment or inconsistent test 
results, and table VI is used in all other hearing loss ratings.
    Based on research and statistical studies conducted by the Veterans 
Health Administration, we propose the addition of two new provisions to 
Sec. 4.85. The first new provision, designated as Sec. 4.85(d), directs 
that the rating specialist choose the higher Roman numeral designation 
derived from table VI or VIa whenever puretone thresholds in four of 
five specified testing frequencies (500, 1000, 2000, 3000, and 4000 
Hertz (Hz)) are 55 decibels hearing level (dBHL) or more. While results 
of speech discrimination tests with this type of hearing loss in a 
controlled setting are often near normal, they do not reflect the true 
extent of difficulty understanding speech in the everyday work 
environment, even with the use of hearing aids. Table VIa, which 
measures pure tone loss only, will be used as an alternative to the 
combination of speech discrimination and pure tone scores for this 
particular configuration of hearing loss, but only if it results in a 
higher evaluation.
    The second new provision (Sec. 4.85(e)) directs that the rating 
specialist choose the higher Roman numeral designation derived from 
table VI or VIa when puretone thresholds are 30 dBHL or less at 
frequencies of 1000 Hz and below, and are 70 dBHL or more at 2000 Hz. 
The rating specialist will then elevate the Roman numeral designation 
to the next higher number. This type of hearing loss is an extreme 
handicap in the presence of any environmental noise, and often cannot 
be overcome by the use of hearing aids. It is therefore appropriate to 
assign the next higher numeric designation in order to compensate for 
this outcome. The intended effect of these two new provisions is to 
fairly and accurately assess the hearing disabilities of veterans as 
reflected in a real life industrial setting and is thus a 
liberalization of the current version of this section of the Schedule.
    Table VII currently includes a footnote indicating entitlement to 
special monthly compensation when the criteria for a 100 percent 
evaluation are met. Entitlement to special monthly compensation under 
38 CFR 3.350(a) (38 U.S.C. 1114(k)) for total deafness is only one of 
many instances in which hearing loss is a factor in establishing 
special monthly compensation. Because the criteria for entitlement to 
special monthly compensation contained in 38 CFR 3.350 are extremely 
complex, we propose to delete the footnote in favor of a note following 
Sec. 4.85 directing rating specialists to refer to Sec. 3.350 when 
evaluating any claim for impaired hearing to determine whether the 
veteran is entitled to special monthly compensation. We believe that 
this will be more effective than the footnote in ensuring complete 
review for special monthly compensation.
    Sections 4.86, 4.86a, and 4.87 currently deal with tests to 
evaluate hearing loss, evidence of hearing loss other than puretone and 
controlled speech audiometry, and the definition of impaired auditory 
acuity. All three of these provisions are closely related to the 
evaluation of hearing loss and should be included in one section. We 
propose to state that the evaluations are designed to measure best 
uncorrected hearing, reflecting the accepted testing method of 
measuring hearing without hearing aids in place. We therefore propose 
to reorganize this material so that it is contained in a single 
section, Sec. 4.86, and to delete Sec. 4.86a. Section 4.87a has been 
redesignated as Sec. 4.87.
    Suppurative otitis media is currently classified under diagnostic 
code 6200, and mastoiditis under diagnostic code 6206. Since 
mastoiditis is often a complication of suppurative otitis media, we 
propose to include mastoiditis under diagnostic code 6200 and delete 
diagnostic code 6206. Cholesteatoma is another condition associated 
with suppurative otitis media, and we propose to include it under 
diagnostic code 6200 as well.
    The diagnosis of ``otitis interna,'' (diagnostic code 6203), is 
archaic and the medical advice we received indicates it is no longer a 
recognized category of disability. For this reason, we propose to 
delete diagnostic code 6203 from the schedule and to rate the symptoms 
attributed to this condition under peripheral vestibular disorders, 
code 6204.
    We propose to amend the NOTE which currently follows diagnostic 
code 6204 to state that objective findings supporting the diagnosis of 
disequilibrium are required prior to the assignment of any compensable 
evaluation. This requirement will preclude the use of purely subjective 
symptoms as the exclusive basis for payment of compensation. The words 
``severe,'' ``moderate'' or ``mild'' now precede the evaluation 
criteria for compensable evaluations under diagnostic codes 6204 and 
6205. These descriptions do not materially help to explain or clarify 
the specific evaluation criteria they precede. For that reason, we 
propose to delete these labels.
    The evaluation criteria under the diagnostic code for Meniere's 
disease (6205) currently require ``frequent episodes'' for an 
evaluation of 100 percent. We propose to clarify this ambiguous 
requirement by specifying that such attacks must occur more than once 
weekly for this level of disability since, in our judgment, such 
frequency would most reasonably constitute total disablement. We also 
propose to include the criteria of deafness to the 60 percent 
evaluation, since this is a common symptom of the disease.
    The current evaluation criteria for loss of auricle, code 6207, are 
unclear because they do not specify the extent of loss required to 
qualify for the various evaluation levels. We propose to revise the 
criteria to indicate that the 30 percent evaluation requires complete 
loss of one auricle and that the 50 percent evaluation requires 
complete loss of both. This is consistent with the current instructions 
for the 10 percent evaluation which require a quantifiable loss of one-
third or more of one auricle.
    Because of the likelihood of serious disablement and the severe 
side effects which chemotherapy and radiation treatment produce in the 
average person, we propose to assign a 100 percent evaluation under the 
diagnostic code for malignancies (6208), with the total evaluation 
continuing after the cessation of surgical, X-ray, antineoplastic or 
other theraputic procedure. We propose to continue the total evaluation 
under this code indefinitely after treatment is discontinued, and to 
examine the veteran six months thereafter. If the results of this or 
any subsequent examination warrant a reduction in evaluation, the 
reduction would be implemented under the provisions of 38 CFR 3.105(e). 
This method has the advantage of offering the veteran timely notice of 
any proposed action and, under the provisions of 38 CFR 3.105(e), the 
opportunity to present evidence showing that the action should not be 
taken. This is consistent with evaluation of malignancies which we have 
proposed in other parts of the Schedule.
    The evaluation for benign neoplasms of the ear (diagnostic code 
6209) currently instructs the rater to evaluate the condition based on 
impairment of function, with a minimum evaluation of 10 percent. 
Likewise, there is an instruction to add 10 percent to the evaluation 
for residuals of malignant new growths. We propose to delete these 
minimum evaluations. Advances in reconstructive surgery have reduced 
the disability associated with this condition and loss of function is 
the most accurate way of evaluating the residuals of this condition. 
Since any disability sufficient to warrant a compensable evaluation 
would be noted on VA examination, a minimum evaluation is no longer 
appropriate.
    The evaluation for tinnitus (diagnostic code 6260) currently 
requires that the condition be ``persistent'' in order to qualify for a 
10 percent evaluation. Tinnitus is a subjective sensation which, under 
certain circumstances, comes and goes. The word ``persistent'' suggests 
a meaning of constant, and we propose to replace it with ``recurrent,'' 
meaning that the tinnitus might not always be present, but that it does 
return at regular intervals. Requiring that tinnitus be ``recurrent'' 
will allow a realistic evaluation of the typical disablement from this 
condition.
    Tinnitus can be caused by a number of conditions, including 
injuries, acute diseases and drug reactions. Compensable evaluation for 
persistent tinnitus is currently restricted to conditions caused by 
head injury, concussion or acoustic trauma. Since the severity of 
disablement from tinnitus does not depend on its origin, we propose to 
eliminate the restriction that tinnitus result from trauma, and provide 
instead for a compensable evaluation whenever tinnitus is recurrent. We 
also propose to remove reference to diagnostic code 8046 (cerebral 
arteriosclerosis), and to remove reference to tinnitus under diagnostic 
code 6204 (peripheral vestibular disorder) in order to allow separate 
evaluations for tinnitus when caused by cerebral arteriosclerosis and 
peripheral vestibular disorder.
    No change is proposed in Sec. 4.87b, which provides evaluations for 
loss of smell (diagnostic code 6275) and taste (diagnostic code 6276) 
except wording changes in the NOTE following, for clarity, and 
redesignation of the section as Sec. 4.87a.
    The Secretary hereby certifies that this regulatory amendment will 
not have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. The reason for this certification is that this 
amendment would not directly affect any small entities. Only VA 
beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this amendment is exempt from the initial and final 
regulatory flexibility analysis requirements of Secs. 603 and 604.
    This regulation is subject to review under Executive Order 12866.
    The Catalog of Federal Domestic Assistance numbers are 64.104 and 
64.109.

List of Subjects in 38 CFR Part 4

    Handicapped, Pensions, Veterans.

    Approved: June 23, 1993.
Jesse Brown,
Secretary of Veterans Affairs.

    Editorial note: This document was received at The Office of the 
Federal Register April 6, 1994.
    For the reasons set out in the preamble, 38 CFR part 4, subpart B, 
is proposed to be amended as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

Subpart B--Disability Ratings

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

    Authority: 72 Stat. 1125; 38 U.S.C. 1155.

    2. Section 4.85 is revised to read as follows:


Sec. 4.85  Evaluation of hearing impairment.

    (a) Examinations will be conducted using a controlled speech 
discrimination test together with a puretone audiometry test. The 
horizontal rows in Table VI represent levels of speech discrimination 
determined from the controlled speech discrimination test. The vertical 
columns in Table VI represent levels of puretone decibel loss 
determined from the puretone audiometry test. The Roman numeral 
designation of impaired efficiency (I through XI) is determined at the 
point where the horizontal row (percentage of speech discrimination) 
and the vertical column (puretone decibel loss) intersect. For example, 
with 70 percent speech discrimination and average puretone decibel 
hearing loss of 64, the Roman numeral designation is V. Each ear will 
be evaluated separately.
    (b) The percentage evaluation will be determined from Table VII. 
The horizontal row of Roman numeral designations represents the ear 
having the better hearing and the vertical column the Roman numeral 
designations for the ear having the poorer hearing. The percentage of 
disability and the diagnostic code are located at the point where the 
row and column intersect. For example, if the better ear (horizontal 
row) has a Roman numeral designation of ``V'' and the poorer ear 
(vertical column) has a Roman numeral designation of ``VII,'' the row 
and column intersect where the percentage evaluation is 30 percent and 
the diagnostic code is 6103.
    (c) Table VIa provides Roman numeral designations based solely on 
puretone decibel hearing loss averages. It is for application when the 
Chief of the Audiology Clinic certifies that language difficulties or 
inconsistent speech discrimination scores make the combined use of 
puretone decibel hearing loss and speech discrimination inappropriate.
    (d) When puretone thresholds in any four of the frequencies 500, 
1000, 2000, 3000, and 4000 Hertz, are 55 decibels hearing loss or more, 
the rating specialist will select the Roman numeral designation from 
either Table VI or Table VIa, whichever permits the higher Roman 
numeral designation. Each ear will be evaluated separately.
    (e) When puretone thresholds are 30 decibels hearing loss or less 
at frequencies of 1000 Hertz and below, and are 70 decibels hearing 
loss or more at 2000 Hertz, the rating specialist will select the 
higher Roman numeral designation from either Table VI or Table VIa, and 
then elevate the Roman numeral designation selected to the next higher 
Roman numeral. Each ear will be evaluated separately.

    Note: When evaluating any claim for impaired hearing, refer to 
Sec. 3.350 of this chapter to determine whether the veteran may be 
entitled to special monthly compensation due either to deafness 
itself, or deafness or partial deafness in combination with other 
specified disabilities.

    3. Section 4.86 is revised to read as follows:


Sec. 4.86  Auditory acuity, hearing aids, and evidence other than 
puretone audiometry and controlled speech.

    (a) For Department of Veterans Affairs purposes, ``impairment of 
auditory acuity'' means the organic loss of the ability to hear speech.
    (b) The evaluations derived from this schedule are designed to 
measure the best residual uncorrected hearing. Examinations comparing 
hearing with and without hearing aids are unnecessary.
    (c) When the medical evidence necessary to establish service-
connection for hearing loss predates the use of puretone audiometry and 
controlled speech, service-connection will be determined under the 
provisions of Secs. 4.85 through 4.87 of this part as in effect on 
December 17, 1987.

BILLING CODE 8320-01-P

TP12AP94.000


TP12AP94.001


BILLING CODE 8320-01-C


Sec. 4.86a  [Removed]

    4. Section 4.86a is removed.
    5. Section 4.87 is revised to read as follows:


Sec. 4.87  Schedule of ratings--ear.

------------------------------------------------------------------------
                                                                 Rating 
------------------------------------------------------------------------
                                                                        
                      Diseases of the Ear                               
                                                                        
6200Chronic suppurative otitis media including cholesteatoma            
 or mastoiditis                                                         
During suppuration............................................        10
Note: Loss of hearing shall be separately rated and combined.           
6201Chronic otitis media with effusion (serous otitis media)            
Rate loss of hearing.                                                   
6202Otosclerosis                                                        
Rate loss of hearing.                                                   
6204Peripheral vestibular disorders                                     
Dizziness and occasional staggering...........................        30
Occasional dizziness..........................................        10
Note: Objective findings supporting the diagnosis of                    
 vestibular disequilibrium are required before a compensable            
 evaluation can be assigned under this code. Loss of hearing            
 or suppuration shall be separately rated and combined.                 
6205Meniere's syndrome (endolymphatic hydrops) Deafness with            
 attacks of vertigo and cerebellar gait occurring more than             
 once weekly..................................................       100
Deafness with attacks of vertigo and cerebellar gait occurring          
 once a week or less..........................................        60
Deafness with occasional vertigo..............................        30
6207Loss of auricle:                                                    
Complete loss of both.........................................        50
Complete loss of one..........................................        30
Deformity of one, with loss of one-third or more of the                 
 substance....................................................        10
6208Malignant neoplasm of the ear, (other than skin only).....       100
Note: Following the cessation of surgical, X-ray,                       
 antineoplastic or other therapeutic procedure, the rating of           
 100 percent shall continue with a mandatory VA examination at          
 the expiration of six months. Any change in evaluation based           
 upon that examination shall be subject to the provisions of            
 Sec. 3.105(e) of this chapter. If there has been no local              
 recurrence or metastasis, rate on residual impairment of               
 function.                                                              
6209Benign neoplasms of the ear, (other than skin only)                 
Rate on impairment of function                                          
6210Chronic otitis externa swelling, dry and scaly or serous            
 discharge and itching requiring frequent and prolonged                 
 treatment....................................................        10
6211Tympanic membrane, perforation of.........................         0
6260Tinnitus, recurrent.......................................        10
------------------------------------------------------------------------

    6. Section 4.87a is revised to read as follows:


Sec. 4.87a  Schedule of ratings--other sense organs.

                                                                        
6275Sense of smell, complete loss.............................        10
6276Sense of taste, complete loss.............................        10
                                                                        

    Note: These ratings will be assigned only if there is an 
anatomical or pathological basis for the condition.


Sec. 4.87b  [Removed]

    7. Section 4.87b is removed.

[FR Doc. 94-8555 Filed 4-11-94; 8:45 am]
BILLING CODE 8320-01-P