[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]


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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.

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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.

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                                                                Rating  
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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.                                      
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[FR Doc. 96-19386 Filed 7-30-96; 8:45 am]
BILLING CODE 8320-01-P