[Federal Register Volume 61, Number 173 (Thursday, September 5, 1996)]
[Rules and Regulations]
[Pages 46720-46731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22593]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AE94
Schedule for Rating Disabilities; Respiratory System
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 that addresses
the Respiratory System. The intended effect of this action is to update
the respiratory portion of the rating schedule to ensure that it uses
current medical terminology and unambiguous criteria, and that it
reflects medical advances which have occurred since the last review.
DATES: This amendment is effective October 7, 1996.
FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,
Regulations Staff (213A), Compensation and Pension Service, Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Avenue, NW, Washington DC 20420, (202) 273-7210.
SUPPLEMENTARY INFORMATION: As part of its first comprehensive review of
the rating schedule since 1945, VA published a proposal to amend 38 CFR
4.96 and 4.97, which address the respiratory system. The proposal was
published in the Federal Register of January 19, 1993 (58 FR 4962-69).
Interested persons were invited to submit written comments on or before
March 22, 1993. We received comments from Paralyzed Veterans of
America, Disabled American Veterans, Veterans of Foreign Wars, the
American Legion, several VA employees, and one member of the general
public.
One commenter suggested a need for a zero percent level for all
conditions.
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
criteria for every condition. VA believes that it is useful to include
a zero percent evaluation only if it is necessary to give the rating
board clear and unambiguous instructions on rating where it might
otherwise be unclear whether commonly occurring minor findings warrant
a zero percent or higher evaluation.
One commenter suggested that the proposed revision would
discriminate against veterans whose initial evaluations would be
assigned under a new and deliberalized schedule.
Significant medical advances have occurred since the last
comprehensive review of the rating schedule, and it is appropriate to
take these advances into account in revising the rating schedule. Doing
so is, in fact, one of the primary reasons for conducting this review.
In our judgment, veterans will not be discriminated against by having
their disabilities evaluated under criteria which reflect the effects
of those medical advances. For veterans evaluated under the former
criteria, Congress amended 38 U.S.C. 1155 to prohibit a reduction in a
veteran's disability rating because of a readjustment of the rating
schedule
[[Page 46721]]
unless an improvement in the disability has been shown.
One commenter stated that rating schedule revisions appear to be
based on optimum success in overcoming the effects of disease rather
than average impairment.
VA disagrees. 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, quantity, rate, etc.'' (``Webster's New World
Dictionary,'' Third College Edition). To the extent possible, we have
based our changes on average or usual or normal courses of disease and
recovery.
The previous schedule provided a two-year period of total
evaluation following the cessation of treatment for malignant neoplasms
of the respiratory tract (DC 6819). As with malignant neoplasms in
other revised sections of the rating schedule, we proposed that a 100-
percent rating continue following the cessation of surgical, X-ray,
antineoplastic chemotherapy or other therapeutic procedure, with a
mandatory examination six months following cessation of treatment.
Before any change in evaluation based upon the examination can be made,
the provisions of Sec. 3.105(e) must be implemented, and evaluation is
made on residuals if there has been no metastasis or recurrence. We
received a number of comments about that proposed change. One commenter
said that six months is not a long enough convalescence.
We believe that an examination six months following the cessation
of treatment affords sufficient time for convalescence and
stabilization of residuals, particularly since the rule requires only
an examination, not a reduction, at that time. If the results of that
or any subsequent examination warrant a reduction in evaluation, the
reduction will be implemented under the provisions of 38 CFR 3.105(e),
which require a 60-day notice before VA reduces an evaluation and an
additional 60-day notice before the reduced evaluation takes effect.
The revised procedure, by requiring an examination, will not only
assure that all residuals are documented, but also that the veteran
receives timely notice of any proposed action and an expanded
opportunity to present evidence showing that the proposed action should
not be taken or should be mitigated. In our judgment, this method will
better ensure that actual residual disabilities and recuperation times
are taken into account because they will be documented on the required
examination, and the veteran will have better opportunities to present
evidence demonstrating the current level of disabilities.
We have revised the note under DC 6819 for the sake of clarity and
consistency. We have added to the note a direction to rate on
residuals, if there has been no local recurrence or metastasis, in
order to make these provisions consistent with the revised provisions
for malignancies of the genitourinary system. This is not a substantive
change.
One commenter felt that applying Sec. 3.105(e) will cause
administrative problems and will significantly lengthen the period of a
total evaluation when claims are received months or years after
surgery. He felt that a retroactive increase to 100 percent
simultaneously with the initiation of due process under Sec. 3.105(e)
to determine the extent of residual disability would be inconsistent.
Since Sec. 3.105(e) applies only to reductions in ``compensation
payments currently being made,'' it does not apply where a total
evaluation is assigned and reduced retroactively.
When the proposed rule was published, we cited improvements in the
administration of chemotherapy and radiation therapy as one reason for
eliminating a fixed convalescent period. One commenter requested that
we justify our statement that chemotherapy has improved.
While the first effective drugs for treating cancer were introduced
in the mid and late 1940's, the results were disappointing because
responses were incomplete and of short duration, and doses were limited
by toxicity (``Cecil Textbook of Medicine'' 1118 (James B. Wyngaarden,
M.D. et al. eds., 19th ed. 1992)). In 1945 there was only one drug
known to be effective--nitrogen mustard. Today there are nearly 50
chemotherapeutic agents in use. The dose and frequency of
administration of the newer agents often differ from those of earlier
agents, and the actions of some of the newer agents are more targeted
in their actions, so that side effects may be fewer and treatment
shorter than before. In use since the 1960's, combination chemotherapy
has also marked a turning point in the effective treatment of
neoplastic disease (``Harrison's Principles of Internal Medicine'' 1587
(Jean D. Wilson, M.D. et al. eds., 12th ed. 1991)).
Another commenter stated that the proposed changes in convalescence
should be justified by medical experts or text citations and that our
medical consultants should be named.
As part of the process of reviewing the rating schedule, we
contracted with an outside consultant, Abt Associates Incorporated, to
submit recommendations for revisions to those portions of the rating
schedule dealing with the respiratory system. We also received advice
and suggestions from physicians in the Veterans Health Administration,
and we consulted standard medical and surgical textbooks, including
``Harrison's Principles of Internal Medicine'' (Jean D. Wilson, M.D. et
al. eds., 12th ed. 1991), ``Cecil Textbook of Medicine'' (James B.
Wyngaarden, M.D. et al. eds., 19th ed. 1992), and ``The Merck Manual,''
(16th ed. 1992). The convalescent periods adopted in this change
represent, in our judgment, based on sound medical advice, neither the
longest nor the 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. For the
unusual case where a longer convalescence is needed, the provisions of
Secs. 4.29 and 4.30 allow an extension of convalescence.
One commenter said that the reductions in the revision appear to be
on a purely economic basis.
This review was carried out from a medical perspective. Its purpose
is to ensure that the rating schedule uses current medical terminology
and unambiguous criteria, and that it reflects medical advances which
have occurred since the last review. Cost cutting was not an issue.
One commenter suggested that we revise the title of DC 6522,
allergic rhinitis, to ``allergic or vasomotor rhinitis'' because both
conditions exhibit the same manifestations and are at times
indistinguishable.
We agree and have revised the title of DC 6522 accordingly.
Another commenter, without giving his reasons, suggested that we
combine DC's 6510 through 6514 (the codes for chronic pansinusitis,
ethmoid sinusitis, frontal sinusitis, maxillary sinusitis, and sphenoid
sinusitis) into a single code for sinusitis.
Retaining a separate code for each of the sinuses will allow
statistical tracking of disease of individual sinuses. Since the
commenter gave no reason for suggesting the change, and no substantial
advantage to either the veteran or the rating board is evident, we have
kept separate codes.
[[Page 46722]]
One commenter felt that subjective descriptors like ``marked''
under DC's 6522 (allergic rhinitis), 6523 (chronic rhinitis), and 6516
(laryngitis), and ``abundant'' in DC 6601 (bronchiectasis) in the
proposed revision should be eliminated for the sake of objectivity.
VA agrees, and we have revised the criteria accordingly. In some
cases we have simply removed subjective terms such as ``marked'' and
``mild'' when they did not substantively explain or clarify the
evaluation criteria. In other cases, we have supplied objective
definitions of terms. In still others, establishing more objective and
unambiguous criteria required greater modification of the proposed
criteria, and these changes will be discussed under the affected
diagnostic codes.
In the case of chronic laryngitis (DC 6516), removing ``marked''
and ``moderate'' required additional changes in the criteria to
distinguish the 10- and 30-percent levels. We proposed a ten-percent
evaluation for moderate hoarseness with inflammation of cords or mucous
membrane and a thirty-percent evaluation for marked hoarseness with
pathological changes such as inflammation of cords or mucous membrane,
thickening or nodules of cords, or submucous infiltration. We have
revised the requirements for a ten-percent evaluation to hoarseness
with inflammation of cords or mucous membrane and for a thirty-percent
evaluation to hoarseness with thickening or nodules of cords, polyps,
submucous infiltration, or pre-malignant changes on biopsy. This
clarifies the criteria for the given percentages.
For several conditions with nasal obstruction: septum, nasal,
deviation of (DC 6502), allergic or vasomotor rhinitis (DC 6522), and
bacterial rhinitis (DC 6523), we proposed a ten-percent evaluation if
there is ``marked'' interference with breathing space. We replaced that
subjective criterion with ``more than 50-percent obstruction of nasal
passage on both sides or complete obstruction on one side'' for a ten-
percent evaluation in all three conditions. This clarifies the criteria
for the given percentages.
In the general rating formula for sinusitis, the criteria included
such subjective terms as ``severe symptoms,'' ``frequently
incapacitating recurrences,'' and ``frequent severe headaches.'' We
proposed a 100-percent evaluation for ``following radical surgery with
chronic osteomyelitis, or; severe symptoms after repeated surgeries.''
We proposed a 30-percent evaluation for ``frequently incapacitating
recurrences, and frequent severe headaches, and purulent discharge or
crusting reflecting purulence.'' We proposed a ten-percent level for
``infrequent headaches with discharge or crusting or scabbing.'' We
have revised these criteria by specifying the frequency of
incapacitating or non-incapacitating episodes of sinusitis per year and
the specific symptoms for the various levels. For example, we changed
the criteria for a 30-percent evaluation to a requirement for three or
more incapacitating episodes per year of sinusitis requiring prolonged
(lasting four to six weeks) antibiotic treatment, or; more than six
non-incapacitating episodes per year of sinusitis characterized by
headaches, pain, and purulent discharge or crusting. The change is to
clarify the criteria.
One commenter, while agreeing with the removal of ambiguous words
such as ``severe,'' urged that the rules not be made too concrete.
We believe that providing clear and objective criteria is the best
way to assure that disabilities will be evaluated fairly and
consistently. At the same time we are aware that there must be some
flexibility in application of the criteria because patients do not
commonly present as textbook models of disease. Rating boards are
required to assess all the evidence of record before determining a
disability evaluation and must use their judgment in determining, for
example, which level of evaluation is more appropriate when there is
conflicting information. Therefore, no matter how objective the
criteria, an element of judgment in their application remains.
We proposed criteria for bronchiectasis (DC 6601) that included
``severe'' hemoptysis, ``chronic'' antibiotic usage, and ``chronic
recurrent'' pneumonia. One commenter said that the words ``severe,''
``chronic,'' and ``chronic recurrent'' are not objective and that in
fact they are unnecessary.
VA agrees. However, simply eliminating those adjectives would not
have left appropriate criteria, so we have revised the criteria to make
them more objective. We have specified the required duration of
incapacitating episodes of infection or frequency of antibiotic usage
for each level of severity of bronchiectasis. At the 60- and 30-percent
levels, we also provided alternative objective criteria based on such
symptoms as cough, purulent sputum, and weight loss. Our change is to
clarify the criteria for the evaluation of bronchiectasis.
The previous schedule used a variety of symptoms, signs, and X-ray
findings to evaluate pulmonary diseases. We proposed that many be
evaluated, at least in part, on criteria based on the results of
pulmonary function tests (PFT's). One commenter, concerned that a
single set of PFT's on a given day might not accurately represent the
veteran's usual condition, recommended that VA place greater emphasis
on interpreting examination reports in light of all evidence of record
and require that test results be reviewed by a pulmonary disease
specialist or by the medical specialist on the rating board.
Rating boards are required by Sec. 4.2 to evaluate all evidence of
record before assigning an evaluation. It is highly unlikely that the
results of a single set of PFT's would be the only available evidence
on which to evaluate the level of severity of a pulmonary condition.
Current clinical information, treatment records, previous examination
reports, and other laboratory results are generally available for
consideration. Rating boards seek medical consultation when they feel
it is necessary. The medical consultant to the rating board is readily
available for information and advice, and the rating board may request
an examination by a pulmonary disease specialist when it feels it is
needed. It would be both impractical and unnecessary to consult with a
pulmonary disease specialist on every case in which PFT's have been
conducted.
One commenter suggested that the criteria in the previous rating
schedule for evaluating respiratory diseases be retained as a backup
for cases where pulmonary function testing is not available.
The equipment for carrying out PFT's is widely available, but if an
examining facility is not equipped for the tests, the examination will
need to be conducted at another facility, as is the case with other
specialized testing, such as for vision or hearing. VA therefore does
not believe retention of the previous criteria as backup is necessary.
Another commenter stated that pulmonary function testing is
contraindicated in certain instances for medical reasons, such as a
history of spontaneous pneumothorax, a hole in the tympanic membrane,
or a recent history of active tuberculosis, and that provisions are
therefore needed for evaluating these conditions when PFT's cannot be
done.
The Veterans Health Administration has advised us that the medical
conditions listed by the commenter do not contraindicate pulmonary
function testing. The major limiting factor in carrying out such
testing is the inability of some patients to follow directions, as
[[Page 46723]]
might occur, for example, in individuals who are severely ill following
a stroke. Even in such individuals, the new criteria allow assignment
of a total evaluation for respiratory disease because there are a
number of criteria warranting a 100-percent evaluation, including cor
pulmonale, right ventricular hypertrophy, and respiratory failure, that
can be assessed without the need for patient cooperation. As under the
previous criteria, for a small number of patients with a less severe
respiratory disease, an evaluation may have to be deferred until
pulmonary function testing is feasible.
Machines that are used for disability testing purposes must meet
the calibration standards of The American Thoracic Society, which are
internationally accepted. This assures that the basis of evaluations
will be the most accurate and consistent measurements possible.
We proposed a 100-percent level of evaluation for larynx, stenosis
of, (DC 6520) if there is either a Forced Expiratory Volume in one
second (FEV-1) of less than 40-percent predicted, or a permanent
tracheostomy, and a 60-percent evaluation if there is an FEV-1 of 40-
to 55-percent predicted. We proposed a 100-percent evaluation for
chronic bronchitis (DC 6600), pulmonary emphysema (DC 6603), chronic
obstructive pulmonary disease (DC 6604) and restrictive lung diseases
if there is an FEV-1 of less than 40-percent predicted, a ratio of FEV-
1 to Forced Vital Capacity (FVC) less than 40-percent, a DLCO less than
40-percent predicted, maximum exercise capacity less than 15 ml/kg/min
oxygen consumption, cor pulmonale (right heart failure), right
ventricular hypertrophy, pulmonary hypertension, episode(s) of acute
respiratory failure, or a requirement for outpatient oxygen therapy. We
proposed a 60-percent evaluation for the same group of conditions if
there is an FEV-1 of 40- to 55-percent predicted, an FEV-1/FVC of 40-
to 55-percent, a DLCO of 40- to 55-percent predicted, or maximum oxygen
consumption of 15 to 20 ml/kg/min. We proposed a 100-percent evaluation
for bronchial asthma (DC 6602) if there is an FEV-1 less than 40-
percent predicted, an FEV-1/FVC less than 40-percent, more than one
attack per week with episodes of respiratory failure, or daily use of
systemic high dose corticosteroids or immuno-suppressive medication,
and a 60-percent evaluation if there is an FEV-1 of 40- to 55-percent
predicted, an FEV-1 of 40- to 55-percent, at least monthly visits to a
physician for exacerbations, or intermittent courses of systemic
corticosteroids.
One commenter said that the levels of reduction of pulmonary
function for the 60- and 100-percent evaluation levels of DC's 6520,
6600, 6602, 6603, 6604, and 6844 (one of the restrictive lung
conditions) that we proposed are extreme and do not represent average
impairments.
VA disagrees. The criteria we have provided for a 100-percent
evaluation for these conditions are consistent with the criteria used
by the American Thoracic Society for its ``severely impaired (unable to
meet the physical demands of most jobs)'' category. This is not more
stringent than the requirement for ``dyspnea at rest'' or ``dyspnea on
slight exertion,'' which were among the criteria for a 100-percent
level of evaluation for many pulmonary conditions in the previous
schedule. We also provided alternative requirements for a 100-percent
evaluation, such as heart failure, that are consistent with criteria
for this level in other sections of the rating schedule. The criteria
we have provided for 60 percent are proportionately lower than those
for the 100-percent level.
One commenter questioned what values will be assigned as normals in
PFT's.
Normal values of PFT's, for VA purposes, are those that exceed the
requirements for a 10-percent evaluation, and those levels are also
consistent with the American Thoracic Society standards for normal
values except in the case of the FEV-1/FVC ratio, where we include the
75- to 80-percent level in the criteria that warrant a ten-percent
evaluation. Although the American Thoracic Society uses an evaluation
of 75 percent as the normal level of the FEV-1/FVC ratio, two widely
used medical textbooks use other normals: Cecil (374) uses ``80
percent,'' and Harrison (1035) uses ``approximately 75 to 80 percent.''
Therefore, our designation of over 80 percent as normal is consistent
with current medical teaching.
The same commenter recommended that we specify that pulmonary
function be tested before bronchodilatation in order to reflect
ordinary conditions of life.
VA disagrees. The American Lung Association/American Thoracic
Society Component Committee on Disability Criteria recommends testing
for pulmonary function after optimum therapy. The results of such tests
reflect the best possible functioning of an individual and are the
figures used as the standard basis of comparison of pulmonary function.
Using this standard testing method assures consistent evaluations.
One commenter stated that, while pulmonary function testing
provides a very accurate picture of functional impairment of the
respiratory system, compensation should be based on the limitation of
earning capacity.
The determination of compensation based on limitation of earning
capacity is not inconsistent with the use of objective PFT's. A major
objective of the rating schedule revision is to provide criteria that
are accurate, consistent, and unambiguous. The widespread use and
acceptance of PFT's (American Thoracic Society, American Medical
Association, etc.) indicates their value in assessing the severity of
pulmonary diseases. Their usefulness lies in part in the fact that they
correlate with the functional impairment that an individual
experiences. The more severe the pulmonary disease, the more abnormal
one or more PFT's are likely to be, and the more interference there is
likely to be with occupational functioning. Using PFT's as a means of
evaluation fulfills to as great an extent as is possible, the desire
for evaluation criteria that allow accuracy and consistency and that
are not ambiguous. The commenter offered no alternative suggestions for
criteria to evaluate pulmonary disease.
One commenter felt that PFT's should be the exclusive basis for
evaluating lung disorders because they are strictly objective.
VA disagrees. While we have used the results of pulmonary function
tests as evaluation criteria when they are appropriate, they are not
suitable for the evaluation of all lung conditions. Asthma, for
example, is an episodic condition that may exhibit normal PFT's at most
times despite significantly disabling disease, and it therefore
requires other criteria for its evaluation, such as the need for a
certain type or frequency of treatment.
One commenter, noting that we had proposed to assign most lung
disorders (restrictive lung diseases, chronic bronchitis, asthma,
emphysema, chronic obstructive pulmonary disease, and bronchiectasis)
evaluation levels of 10, 30, 60, and 100 percent, but interstitial lung
diseases levels of 0, 10, 40, 70, and 100 percent, said that it would
be more logical and consistent to assign all lung conditions the same
evaluation levels. Another commenter stated that lung conditions with
similar impairments of lung functions should receive similar ratings.
He suggested listing FEV-1, FVC, FEV-1/FVC, and DLCO under all lung
diseases requiring PFT's, as recommended by the American
[[Page 46724]]
Thoracic Society and found in the AMA Guides.
Individual categories of pulmonary disorders often affect the
results of one PFT more than another. Our non-VA panel of specialist
consultants felt that FEV-1 and the ratio of FEV-1 to FVC are good
indicators of the level of severity of many pulmonary diseases, but
that the FVC and DLCO are more appropriate PFT's to evaluate
interstitial diseases. The American Medical Association's ``Guides to
the Evaluation of Permanent Impairment,'' Third Edition, Revised
(1990), says that ``for interstitial lung disease, the FVC has proved
to be a reliable and valid index of significant impairment,'' and it
goes on to say that the DLCO is especially useful in detecting
abnormalities that limit gas transference, such as emphysema or
interstitial fibrosis of the lung parenchyma. A standard medical
textbook (Cecil, 401), says that the ratio of FEV-1 to FVC may be
normal or increased in interstitial disease. It is therefore not useful
as a criterion to evaluate the severity of this type of disease. Our
use of the proposed criteria is thus consistent with the effects of the
various conditions on PFT's.
Regarding the comment about using the same evaluation levels for
all lung disorders, VA agrees that there is no compelling reason to use
evaluation levels for interstitial lung disease that differ from those
used for the majority of other lung diseases. We have, therefore, for
the sake of greater consistency, revised the criteria for interstitial
lung disease by substituting 30- and 60-percent levels for the 40- and
70-percent levels. This required adjustments in the FVC and DLCO levels
used as criteria, both because of the changed evaluation levels and to
make them correspond with the PFT criteria for other pulmonary
conditions. We also removed the zero-percent evaluation for
consistency.
One commenter said that while an FEV-1 above 80 percent is
considered normal in the proposed revision of the respiratory disease
section of the rating schedule, the Veterans Health Administration's
``Physician's Guide for Disability Evaluation Examinations'' (a manual
that gives guidance to examining physicians who do compensation and
pension examinations) states that 83 percent is normal, and these
figures are inconsistent.
The ``Physician's Guide'' is meant to insure that all necessary
tests are performed and that all findings are provided for diagnosis
and/or evaluation to meet the specific requirements of the Schedule for
Rating Disabilities and related programs. It is available to VA and fee
basis examiners conducting examinations for VA disability benefits. The
current version of the Guide (revised 1994), which is computerized and
no longer available in printed form, does not provide lists of normal
PFT results. The examining physician is required to obtain PFT's where
the criteria call for them but need not interpret the results since the
criteria themselves contain the actual figures that warrant various
evaluations. As with any examination, it is incumbent upon the rating
board to return to the examiner reports that lack information necessary
to apply the provisions of the rating schedule (see 38 CFR 4.2).
We proposed notes under DC's 6600 (chronic bronchitis), 6603
(pulmonary emphysema), 6604 (chronic obstructive pulmonary disease) and
under the general rating formula for restrictive lung diseases
outlining the requirements for home oxygen. One commenter said that the
requirements for home oxygen are too specific and should be flexible
enough to allow for a physician's assessment that the patient needs
oxygen. Another commenter said that the term ``home oxygen'' is
confusing because many use oxygen away from home and the requirement
for oxygen may be temporary, pending stabilization or during an acute
illness.
VA agrees that the decision to use home oxygen should be a medical,
not a rating, decision, and we have therefore deleted the note
explaining the technical requirements for home oxygen. We proposed that
``meets requirements for home oxygen'' be one of the criteria for the
100-percent level of the conditions listed above, but the preferred
current term for such treatment is ``outpatient oxygen therapy,'' and
we have revised the language accordingly.
A commenter asked how VA will deal with results of PFT's from non-
VA facilities that are at variance with VA test results.
This potential problem is not unique to the area of PFT's. Any
laboratory test may show different results when performed on the same
individual in the same facility at different times or when the same
test is performed on the same individual at more than one facility.
Rating boards are required to consider and reconcile all evidence of
record, and at times they may seek additional testing or a medical
opinion to help reconcile differences.
One commenter suggested we assign a minimum evaluation of 10
percent for any lung disorder if the patient must take daily
medication.
VA disagrees. Because of the broad range of pulmonary conditions
and medications used to treat them, a 10-percent evaluation would not
necessarily be warranted in all cases on the basis of daily medication
alone. For example, daily use of an expectorant or cough medicine would
not necessarily be indicative of a condition warranting a ten-percent
level of evaluation.
We proposed to add sarcoidosis (DC 6846) to the rating schedule
with evaluation levels of 0, 30, and 60 percent. We received two
comments about this change. One stated that while the criteria of
pulmonary involvement with fever, weight loss, and night sweats
requiring high dose systemic corticosteroids for control establish a
60-percent level of evaluation in the case of sarcoidosis, similar
criteria (active infection with systemic symptoms such as fever, night
sweats, weight loss, or hemoptysis) establish a 100-percent evaluation
for bacterial infections of the lung (DC's 6822, 6823, and 6824). He
felt that the criteria described should be considered totally disabling
for both conditions.
VA agrees that some of the criteria we had proposed for the 60-
percent level of sarcoidosis are more consistent with total disability.
We have therefore revised the criteria for the 60-percent evaluation
level and added a 100-percent evaluation level. We have made fever,
night sweats, and weight loss part of the criteria for the 100-percent
level and pulmonary disease requiring systemic high dose (therapeutic)
steroids for control of the criterion for the 60-percent level. We also
slightly revised the 30 percent criteria by adding ``maintenance'' in
parentheses as a description of the steroid therapy and removed
``mild'' modifying symptoms because it is a subjective term, and
whether maintenance or therapeutic doses of steroid are used makes a
clearer differentiation of the level of severity.
The other commenter stated that it will be difficult to establish
service connection for sarcoidosis on a presumptive basis if there is
no ten-percent level, because presumptive service connection requires
that a condition be manifest to a degree of ten percent or more within
one year of discharge.
The evaluation levels we provide for various conditions are meant
to reflect the ordinary levels of severity that may be seen in those
conditions, and we do not provide ten-percent evaluation levels in
order to aid presumptive service connection. The proposed evaluation
criteria for sarcoidosis included 30- and 60-percent evaluation levels,
and either of those levels would
[[Page 46725]]
establish presumptive service connection if present within one year of
discharge. Sarcoidosis may also be evaluated under other criteria,
however, as indicated in a note following the evaluation criteria.
Therefore, a 10-percent level, as well as other levels of evaluation,
may be assigned under DC 6600 (chronic bronchitis) based on the results
of pulmonary function tests, or under skin disease, eye disease, etc.,
when there is extra-pulmonary involvement.
One commenter suggested that we add a diagnostic code and
evaluation criteria for asbestosis. He suggested that we evaluate the
condition based on its restrictive aspects, X-ray changes, and pleural
changes.
VA agrees that asbestosis is a common enough disease in the veteran
population to warrant its own diagnostic code. We have therefore
removed asbestosis from the list of pneumoconioses in DC 6832 and have
added asbestosis as DC 6833. It will be evaluated under the general
rating formula for interstitial diseases, as recommended by our panel
of consultants. The X-ray changes unique to asbestosis are not
necessarily related to the degree of disability but are helpful in
establishing the fact of asbestos exposure. They therefore relate more
to the issue of service connection rather than to evaluation, and we
have not made them part of the evaluation criteria. We have adjusted
the numbering of the proposed diagnostic codes following asbestosis to
accommodate the added condition. We have changed the proposed DC's for
histoplasmosis of lung from 6833 to 6834, coccidioidomycosis from 6834
to 6835, blastomycosis from 6835 to 6836, cryptococcosis from 6836 to
6837, aspergillosis from 6837 to 6838, mucormycosis from 6838 to 6839,
diaphragm paralysis or paresis from 6839 to 6840, spinal cord injury
with respiratory insufficiency from 6840 to 6841, kyphoscoliosis,
pectus excavatum, pectus carinatum from 6841 to 6842, traumatic chest
wall defect, pneumothorax, hernia, etc., from 6842 to 6843, post-
surgical residual from 6843 to 6844, chronic pleural effusion or
fibrosis from 6844 to 6845, sarcoidosis from 6845 to 6846, and sleep
apnea from 6846 to 6847.
One commenter asked why we have not proposed to rate the
disfigurement and disability from radical neck surgery under
respiratory disorders.
Radical neck surgery is not appropriate for inclusion in the
respiratory system section of the rating schedule because it primarily
results in loss of muscle tissue (of the neck), subcutaneous tissue,
and lymph nodes. There is ordinarily no effect on the respiratory
system from such surgery. Disability from this loss of tissue can be
most appropriately evaluated under diagnostic codes in other sections,
such as DC 5322 (Muscle Group XXII, muscles of the front of the neck)
or DC 7800 (disfiguring scars of the head, face, or neck).
We proposed that injuries to the pharynx (DC 6521) have a single
evaluation level of 50 percent based on the presence of stricture or
obstruction of the pharynx or nasopharynx or on paralysis or absence of
the soft palate. A commenter said that the resulting symptoms are
severe enough to be considered 60-percent disabling, equivalent to
complete organic aphonia (DC 6519) or stenosis of larynx (DC 6520),
which have both 60- and 100-percent evaluation levels.
VA disagrees. The impairments from these three conditions differ
because they are in different locations. The major effect of pharyngeal
and palatal injuries is swallowing difficulty rather than respiratory
difficulty, and any resulting speech impairment is not likely to
approach the level of aphonia. (A 50-percent evaluation for these
injuries is comparable to the 50-percent evaluation criteria in the
digestive system for severe esophageal stricture, permitting passage of
liquids only.) Laryngeal stenosis, on the other hand, causes both
respiratory and speech impairment. However, if there is a case where
the impairment from pharyngeal injury more closely resembles aphonia or
the effects of laryngeal stenosis, an evaluation analogous to one of
those conditions may be used instead (Sec. 4.20). In our judgment, the
criteria and level of evaluation we have provided are appropriate for
most pharyngeal injuries, and there are adequate provisions for
evaluating those few that may be more severe.
Note (1) under the proposed general rating formula for inactive
pulmonary tuberculosis stated that when a veteran is placed on the 100-
percent rating for inactive tuberculosis, the medical authorities will
be appropriately notified of the fact, and of the necessity under 38
U.S.C. 356 to notify the Adjudication Division in the event of failure
to submit to examination or to follow prescribed treatment. A commenter
said that the citation of 38 U.S.C. 356, repealed by Public Law 90-493,
should be followed by a notation that it is to be found as footnote 1
to section 1156 of title 38, United States Code.
We agree and have revised the note accordingly.
One commenter felt that there is inequity in the evaluation
criteria for laryngectomy and partial aphonia because if partial
aphonia allows a person to whisper, the rating is 60 percent while if
laryngectomy allows a person to whisper, the rating is 100 percent.
VA disagrees. Disability resulting from a laryngectomy is not
comparable to partial aphonia with an intact larynx. In the case of
laryngectomy, a significant organ has been removed which has functions
beyond that of speech. The larynx acts as the sphincter guarding the
gateway to the trachea, and a laryngectomy produces a serious
compromise of the respiratory tract, requiring a permanent
tracheostomy. Partial aphonia may result from any of several causes,
including inflammatory and benign neoplastic conditions, but since they
affect speech without affecting respiration, we have retained the
evaluation criteria as proposed.
Another comment regarding total laryngectomy (DC 6518) and complete
organic aphonia (DC 6519) was that there should be a footnote at these
codes as a reminder to consider special monthly compensation (SMC),
which may be awarded for complete organic aphonia under the provisions
of 38 CFR 3.350.
In our judgment, the rating agency should refer directly to the
complex and extensive regulations regarding special monthly
compensation in Sec. 3.350 whenever the question of special monthly
compensation arises. However, in response to the comment, we have taken
two steps to remind the rating board to consider the possibility of
SMC. We added paragraph (c), ``Special monthly compensation,'' to
Sec. 4.96 requiring the rating board to refer to Sec. 3.350 any time it
evaluates a claim involving complete organic aphonia; and we placed
footnotes at DC's 6518 and 6519, conditions which may be associated
with complete organic aphonia, instructing rating boards to review for
entitlement to SMC. While those conditions clearly call for review for
entitlement to SMC, there are other conditions in this portion of the
rating schedule where there might also be entitlement to SMC. The lack
of a footnote does not relieve the rating board of the responsibility
of recognizing additional circumstances where SMC might be warranted.
We believe that the combination of the regulatory requirement contained
in the note and the footnotes is the best method of making sure that
potential entitlement to SMC is considered.
In view of the addition of paragraph (c) to Sec. 4.96, we have
changed the title
[[Page 46726]]
of this section to ``Special provisions regarding evaluation of
respiratory conditions,'' which is more descriptive of its current
contents.
The previous rating schedule had separate diagnostic codes and
evaluations for pneumonectomy (60 percent under DC 6815) and lobectomy
(50 percent if bilateral, and 30 percent if unilateral, under DC 6816).
We proposed that all pulmonary post-surgical residuals, including
lobectomy and pneumonectomy, be evaluated under DC 6843, post-surgical
residual, as restrictive lung disease, based on the objective findings
of PFT's. One commenter said this change is an arbitrary decrease
because no advancement in medical science can change the degree of
disability resulting from such surgery.
VA does not concur. Since there is an objective method to measure
residual breathing impairment, it is more equitable to use that method
so that evaluation of the residuals of any type of lung resection is
made on the actual residuals found. The previous schedule did not
provide evaluations for residuals more severe than the levels specified
under those codes. It required, for example, that lobectomy be
bilateral to qualify for a 50-percent level of impairment. Under the
revised criteria, a veteran will be assigned an evaluation according to
the level of disability reflected by the PFT's, whatever the extent of
the surgery. This will assure that veterans with comparable residual
pulmonary disabilities are consistently evaluated.
We proposed that chronic lung abscess (DC 6824) be evaluated under
a general rating formula for bacterial infections of the lung and
directed that post-surgical residuals and post-treatment fibrosis and
scars be rated as chronic bronchitis (DC 6600). One commenter pointed
out that there may be other types of residuals besides fibrosis and
scars, such as thoracoplasty, lobectomy, or purulent pleurisy, and
suggested that the residuals be rated as appropriate.
We agree, and have revised the statement under DC 6824 to read:
``Depending on the specific findings, rate residuals as interstitial
lung disease, restrictive lung disease, or, when obstructive lung
disease is the major residual, as chronic bronchitis (DC 6600).''
The previous schedule called for a 100-percent rating for one year
following the date of inactivity of active pulmonary tuberculosis (DC
6731). We proposed that once pulmonary tuberculosis becomes inactive,
it be evaluated on the residual scar or fibrosis as chronic bronchitis
(DC 6600). Three commenters objected to the change. One said that
eliminating a period of convalescence when there is a new worldwide
outbreak of tuberculosis is questionable, one said that the change is
not justifiable, and one said that we should provide a period of
readjustment because individuals have difficulty finding employment
after release from treatment for tuberculosis.
On further consideration, VA agrees that some provision for
readjustment is appropriate, and we have revised DC 6731 to require
that a mandatory examination be requested immediately after
notification that active tuberculosis has become 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
for at least several months, which will provide a period of
readjustment, and will also assure that the extent of any residual
impairment has been documented by examination.
The third commenter stated that the proposal to rate residual scar
or fibrosis of inactive tuberculosis (DC 6731) as chronic bronchitis
(DC 6600) is too restrictive because there may be other residuals.
We agree, and have revised the statement under DC 6731 to read:
``Depending on the specific findings, rate residuals as interstitial
lung disease, restrictive lung disease, or, when obstructive lung
disease is the major residual, as chronic bronchitis (DC 6600). Rate
thoracoplasty as removal of ribs under DC 5297.''
We proposed separate diagnostic codes for chronic bronchitis (DC
6600), pulmonary emphysema (DC 6603), and chronic obstructive pulmonary
disease (DC 6604), with evaluation under identical criteria. One
commenter suggested a single diagnostic code, ``chronic obstructive
pulmonary disease (bronchitis or emphysema),'' for all of these
conditions, since the proposed criteria are essentially identical.
VA disagrees. While pulmonary emphysema, chronic obstructive
pulmonary disease (COPD), and chronic bronchitis often coexist and are
sometimes hard to differentiate, they are not synonymous. COPD
ordinarily refers to a combination of chronic obstructive bronchitis
and emphysema (Cecil, 389), but the term is not always used precisely.
Emphysema may be localized or generalized, and is not always
categorized as COPD. Since an individual may receive a diagnosis of any
of the three conditions, it is useful to have a separate diagnostic
code for each entity for statistical purposes and to aid the rating
board in selecting appropriate evaluation criteria.
We proposed to add spinal cord injury with respiratory
insufficiency (DC 6840) as one of six restrictive lung diseases to be
evaluated under a general rating formula. One commenter, without
explaining how the conditions differ or offering an alternative for us
to consider, suggested that spinal cord injury with respiratory
insufficiency not be evaluated as a restrictive lung disease because
ventilator dependency secondary to spinal cord injury is distinct from
other lung diseases.
VA disagrees. The panel of non-VA specialists convened by a
contract consultant included spinal cord injury with respiratory
insufficiency among the restrictive pulmonary diseases. Cecil (377), in
discussing restrictive pulmonary disease, includes those conditions
that affect the chest wall or respiratory muscles. We have provided
alternative criteria for restrictive lung disease at each evaluation
level, and if any one of the criteria for a particular level is
present, that level of evaluation can be assigned. A wide range of
respiratory conditions with a predominantly restrictive effect can
therefore be evaluated under our criteria, even though one condition
might be reflected in an abnormality of one PFT more than another. As a
result, our criteria are broad enough to encompass any likely
functional impairment spinal cord injury with respiratory insufficiency
may produce.
The previous rating schedule provided a one hundred-percent
evaluation for six months following spontaneous pneumothorax (now DC
6843). We proposed to provide a convalescent period of three months
following total pneumothorax. We received two comments objecting to
this proposal. One commenter said that our statement in the preamble to
the proposed revision that pneumothorax resolves sooner than six months
is not supported by medical evidence, and the other said that
decreasing the convalescent period may impede full recovery.
VA disagrees. ``The Merck Manual,'' (731, 16th ed. 1992), states
that a small pneumothorax requires no special treatment and that the
air is reabsorbed in a few days. It also says that full absorption of a
larger airspace may take two to four weeks, a period which can be
shortened by the use of a tube for drainage. Cecil (450), states that a
small pneumothorax is reabsorbed in 7 to 14 days and that larger ones
may be treated with a tube for 2 to 4 days if very large, under
tension, or very symptomatic. A persistent or complicated pneumothorax
[[Page 46727]]
may require surgery, and in that case, the provisions of
Sec. 4.30(b)(2) allow the rating board to assign convalescence for up
to a total of six months. Therefore, it is our judgment that three
months of convalescence is adequate in the average case.
We received one comment on avoiding pyramiding, the prohibited
practice of evaluating the same disability under various diagnoses (see
38 CFR 4.14). The commenter suggested that we direct that DC 6520,
stenosis of larynx, not be combined with other codes in this section
because the criterion for airflow obstruction due to stenosis of the
larynx is similar to those for disease of bronchi or lungs.
Stenosis of the larynx may be evaluated on the basis of the results
of pulmonary function tests, if there is respiratory impairment, or as
aphonia, when interference with speech is the main impairment. Only in
cases of laryngeal stenosis where respiratory impairment is the basis
of evaluation would it be pyramiding to combine such an evaluation with
the evaluation of another pulmonary condition. Therefore, a strict
prohibition against combining evaluations for stenosis of the larynx
with evaluations for pulmonary conditions is not warranted. The
statement in Sec. 4.96, paragraph (a), stipulating that when there is
lung or pleural involvement, DC's 6819 and 6920 will not be combined
with each other or with DC's 6600 through 6817 or 6822 through 6847 is
sufficient to alert the rating board to possible problems of pyramiding
when evaluating pulmonary conditions.
The same commenter additionally said that, to prevent pyramiding,
VA should state that evaluations under DC's 6520 (stenosis of larynx),
6511, 6512, 6513, and 6514 (sinusitis in various locations) should not
be combined with one another and likewise that evaluations under DC's
6522, 6523, and 6524 (rhinitis of various types) should not be combined
with one another.
In VA's judgment, there is no need to specifically prohibit
pyramiding of the various codes for sinusitis or rhinitis as the
commenter suggests. The rating board is required in general by
Sec. 4.14 not to pyramid disabilities. The board must use its judgment
as to whether a single evaluation encompasses all disability present or
not. A specific prohibition might be useful if all conditions involved
always had the same manifestations, but this is not true of either
sinusitis or rhinitis.
The commenter went on to say that, alternatively, Sec. 4.96 could
be amended to state that it does not remove the prohibition against
pyramiding that may apply to other diagnostic codes.
VA disagrees. Such an amendment is not necessary because Sec. 4.14,
which prohibits the practice of ``pyramiding,'' applies to the entire
rating schedule, and all rating boards are required to follow it.
For further clarity, we have revised the criteria for pulmonary
vascular disease, DC 6817. We proposed that the criterion for 30
percent be ``acute pulmonary embolism with residual symptoms,'' and we
changed that language to ``symptomatic following resolution of acute
pulmonary embolism.'' We proposed that the criterion at the zero-
percent level be ``resolved pulmonary thromboembolism with no residual
symptoms,'' and we changed that language to ``asymptomatic, following
resolution of pulmonary thromboembolism.'' These do not represent
substantive changes. Because pulmonary vascular disease may result in
residuals other than those included in the proposed criteria, such as
chronic pleural thickening, for the sake of completeness, we added a
note under DC 6817 directing to evaluate other residuals under the most
appropriate diagnostic code.
In the proposed regulation for chronic bronchitis (DC 6600),
pulmonary emphysema (DC 6603), chronic obstructive pulmonary disease
(DC 6604), and restrictive lung diseases, we inadvertently omitted an
upper level of DLCO that would warrant a ten percent evaluation. We
have corrected this oversight in the final regulation by making the
DLCO requirement for the 10-percent evaluation ``66- to 80-percent
predicted.''
An additional change we made for the sake of completeness was the
addition of a note following DC 6504, nose, loss of part of, or scars,
stating that this disability may alternatively be evaluated as DC 7800,
disfiguring scars of the head, face, or neck.
We made minor editorial changes in language in several cases, such
as changing ``rate'' to ``evaluate'' and ``applicable'' to
``appropriate'', but these are not substantive changes.
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 (RFA), 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 amendment has been reviewed by the Office of
Management and Budget under the provisions of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993.
The Catalog of Federal Domestic Assistance program numbers are
64.104 and 64.109.
List of Subjects in 38 CFR Part 4
Disability benefits, Individuals with disabilities, Pensions,
Veterans.
Approved: May 13, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
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
1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155.
Subpart B--Disability Ratings
2. In Sec. 4.96, the section heading and paragraph (a) are revised,
and paragraph (c) is added to read as follows:
Sec. 4.96 Special provisions regarding evaluation of respiratory
conditions.
(a) Rating coexisting respiratory conditions. Ratings under
diagnostic codes 6600 through 6817 and 6822 through 6847 will not be
combined with each other. Where there is lung or pleural involvement,
ratings under diagnostic codes 6819 and 6820 will not be combined with
each other or with diagnostic codes 6600 through 6817 or 6822 through
6847. A single rating will be assigned under the diagnostic code which
reflects the predominant disability with elevation to the next higher
evaluation where the severity of the overall disability warrants such
elevation. However, in cases protected by the provisions of Pub. L. 90-
493, the graduated ratings of 50 and 30 percent for inactive
tuberculosis will not be elevated.
* * * * *
(c) Special monthly compensation. When evaluating any claim
involving complete organic aphonia, refer to Sec. 3.350 of this chapter
to determine whether the veteran may be entitled to special monthly
compensation. Footnotes in the schedule indicate
[[Page 46728]]
conditions which potentially establish entitlement to special monthly
compensation; however, there are other conditions in this section which
under certain circumstances also establish entitlement to special
monthly compensation.
(Authority: 38 U.S.C. 1155)
3. Section 4.97 is revised to read as follows:
Sec. 4.97 Schedule of ratingsrespiratory system.
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
DISEASES OF THE NOSE AND THROAT
------------------------------------------------------------------------
6502 Septum, nasal, deviation of:
Traumatic only,
With 50-percent obstruction of the nasal passage on
both sides or complete obstruction on one side........ 10
6504 Nose, loss of part of, or scars:
Exposing both nasal passages............................... 30
Loss of part of one ala, or other obvious disfigurement.... 10
Note: Or evaluate as DC 7800, scars, disfiguring, head, face,
or neck.
6510 Sinusitis, pansinusitis, chronic.
6511 Sinusitis, ethmoid, chronic.
6512 Sinusitis, frontal, chronic.
6513 Sinusitis, maxillary, chronic.
6514 Sinusitis, sphenoid, chronic.
General Rating Formula for Sinusitis (DC's 6510 through
6514):
Following radical surgery with chronic osteomyelitis,
or; near constant sinusitis characterized by
headaches, pain and tenderness of affected sinus, and
purulent discharge or crusting after repeated
surgeries............................................. 50
Three or more incapacitating episodes per year of
sinusitis requiring prolonged (lasting four to six
weeks) antibiotic treatment, or; more than six non-
incapacitating episodes per year of sinusitis
characterized by headaches, pain, and purulent
discharge or crusting................................. 30
One or two incapacitating episodes per year of
sinusitis requiring prolonged (lasting four to six
weeks) antibiotic treatment, or; three to six non-
incapacitating episodes per year of sinusitis
characterized by headaches, pain, and purulent
discharge or crusting................................. 10
Detected by X-ray only................................. 0
Note: An incapacitating episode of sinusitis means one that
requires bed rest and treatment by a physician.
6515 Laryngitis, tuberculous, active or inactive.
Rate under Secs. 4.88c or 4.89, whichever is appropriate.
6516 Laryngitis, chronic:
Hoarseness, with thickening or nodules of cords, polyps,
submucous infiltration, or pre-malignant changes on biopsy 30
Hoarseness, with inflammation of cords or mucous membrane.. 10
6518 Laryngectomy, total...................................... \1\ 100
Rate the residuals of partial laryngectomy as laryngitis
(DC 6516), aphonia (DC 6519), or stenosis of larynx (DC
6520).
6519 Aphonia, complete organic:
Constant inability to communicate by speech................ \1\ 100
Constant inability to speak above a whisper................ 60
Note: Evaluate incomplete aphonia as laryngitis, chronic
(DC 6516).
6520 Larynx, stenosis of, including residuals of laryngeal
trauma (unilateral or bilateral):
Forced expiratory volume in one second (FEV-1) less than 40
percent of predicted value, with Flow-Volume Loop
compatible with upper airway obstruction, or; permanent
tracheostomy.............................................. 100
FEV-1 of 40- to 55-percent predicted, with Flow-Volume Loop
compatible with upper airway obstruction.................. 60
FEV-1 of 56- to 70-percent predicted, with Flow-Volume Loop
compatible with upper airway obstruction.................. 30
FEV-1 of 71- to 80-percent predicted, with Flow-Volume Loop
compatible with upper airway obstruction.................. 10
Note: Or evaluate as aphonia (DC 6519).
6521 Pharynx, injuries to:
Stricture or obstruction of pharynx or nasopharynx, or;
absence of soft palate secondary to trauma, chemical burn,
or granulomatous disease, or; paralysis of soft palate
with swallowing difficulty (nasal regurgitation) and
speech impairment......................................... 50
6522 Allergic or vasomotor rhinitis:
With polyps................................................ 30
Without polyps, but with greater than 50-percent
obstruction of nasal passage on both sides or complete
obstruction on one side................................... 10
6523 Bacterial rhinitis:
Rhinoscleroma.............................................. 50
With permanent hypertrophy of turbinates and with greater
than 50-percent obstruction of nasal passage on both sides
or complete obstruction on one side....................... 10
6524 Granulomatous rhinitis:
Wegener's granulomatosis, lethal midline granuloma......... 100
Other types of granulomatous infection..................... 20
------------------------------------------------------------------------
DISEASES OF THE TRACHEA AND BRONCHI
------------------------------------------------------------------------
6600 Bronchitis, chronic:
FEV-1 less than 40 percent of predicted value, or; the
ratio of Forced Expiratory Volume in one second to Forced
Vital Capacity (FEV-1/FVC) less than 40 percent, or;
Diffusion Capacity of the Lung for Carbon Monoxide by the
Single Breath Method (DLCO (SB)) less than 40-percent
predicted, or; maximum exercise capacity less than 15 ml/
kg/min oxygen consumption (with cardiac or respiratory
limitation), or; cor pulmonale (right heart failure), or;
right ventricular hypertrophy, or; pulmonary hypertension
(shown by Echo or cardiac catheterization), or; episode(s)
of acute respiratory failure, or; requires outpatient
oxygen therapy............................................ 100
[[Page 46729]]
FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40
to 55 percent, or; DLCO (SB) of 40- to 55-percent
predicted, or; maximum oxygen consumption of 15 to 20 ml/
kg/min (with cardiorespiratory limit)..................... 60
FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56
to 70 percent, or; DLCO (SB) 56- to 65-percent predicted.. 30
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71
to 80 percent, or; DLCO (SB) 66- to 80-percent predicted.. 10
6601 Bronchiectasis:
With incapacitating episodes of infection of at least six
weeks total duration per year............................. 100
With incapacitating episodes of infection of four to six
weeks total duration per year, or; near constant findings
of cough with purulent sputum associated with anorexia,
weight loss, and frank hemoptysis and requiring antibiotic
usage almost continuously................................. 60
With incapacitating episodes of infection of two to four
weeks total duration per year, or; daily productive cough
with sputum that is at times purulent or blood-tinged and
that requires prolonged (lasting four to six weeks)
antibiotic usage more than twice a year................... 30
Intermittent productive cough with acute infection
requiring a course of antibiotics at least twice a year... 10
Or rate according to pulmonary impairment as for chronic
bronchitis (DC 6600).
Note: An incapacitating episode is one that requires
bedrest and treatment by a physician.
6602 Asthma, bronchial:
FEV-1 less than 40-percent predicted, or; FEV-1/FVC less
than 40 percent, or; more than one attack per week with
episodes of respiratory failure, or; requires daily use of
systemic (oral or parenteral) high dose corticosteroids or
immuno-suppressive medications............................ 100
FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40
to 55 percent, or; at least monthly visits to a physician
for required care of exacerbations, or; intermittent (at
least three per year) courses of systemic (oral or
parenteral) corticosteroids............................... 60
FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56
to 70 percent, or; daily inhalational or oral
bronchodilator therapy, or; inhalational anti-inflammatory
medication................................................ 30
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71
to 80 percent, or; intermittent inhalational or oral
bronchodilator therapy.................................... 10
Note: In the absence of clinical findings of asthma at time
of examination, a verified history of asthmatic attacks
must be of record.
6603 Emphysema, pulmonary:
FEV-1 less than 40 percent of predicted value, or; the
ratio of Forced Expiratory Volume in one second to Forced
Vital Capacity (FEV-1/FVC) less than 40 percent, or;
Diffusion Capacity of the Lung for Carbon Monoxide by the
Single Breath Method (DLCO (SB)) less than 40-percent
predicted, or; maximum exercise capacity less than 15 ml/
kg/min oxygen consumption (with cardiac or respiratory
limitation), or; cor pulmonale (right heart failure), or;
right ventricular hypertrophy, or; pulmonary hypertension
(shown by Echo or cardiac catheterization), or; episode(s)
of acute respiratory failure, or; requires outpatient
oxygen therapy............................................ 100
FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40
to 55 percent, or; DLCO (SB) of 40- to 55-percent
predicted, or; maximum oxygen consumption of 15 to 20 ml/
kg/min (with cardiorespiratory limit)..................... 60
FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56
to 70 percent, or; DLCO (SB) 56- to 65-percent predicted.. 30
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71
to 80 percent, or; DLCO (SB) 66- to 80-percent predicted.. 10
6604 Chronic obstructive pulmonary disease:
FEV-1 less than 40 percent of predicted value, or; the
ratio of Forced Expiratory Volume in one second to Forced
Vital Capacity (FEV-1/FVC) less than 40 percent, or;
Diffusion Capacity of the Lung for Carbon Monoxide by the
Single Breath Method (DLCO (SB)) less than 40-percent
predicted, or; maximum exercise capacity less than 15 ml/
kg/min oxygen consumption (with cardiac or respiratory
limitation), or; cor pulmonale (right heart failure), or;
right ventricular hypertrophy, or; pulmonary hypertension
(shown by Echo or cardiac catheterization), or; episode(s)
of acute respiratory failure, or; requires outpatient
oxygen therapy............................................ 100
FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40
to 55 percent, or; DLCO (SB) of 40- to 55-percent
predicted, or; maximum oxygen consumption of 15 to 20 ml/
kg/min (with cardiorespiratory limit)..................... 60
FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56
to 70 percent, or; DLCO (SB) 56- to 65-percent predicted.. 30
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71
to 80 percent, or; DLCO (SB) 66- to 80-percent predicted.. 10
------------------------------------------------------------------------
DISEASES OF THE LUNGS AND PLEURA--TUBERCULOSIS
Ratings for Pulmonary Tuberculosis Entitled on August 19, 1968
------------------------------------------------------------------------
6701 Tuberculosis, pulmonary, chronic, far advanced, active... 100
6702 Tuberculosis, pulmonary, chronic, moderately advanced,
active........................................................ 100
6703 Tuberculosis, pulmonary, chronic, minimal, active........ 100
6704 Tuberculosis, pulmonary, chronic, active, advancement
unspecified................................................... 100
6721 Tuberculosis, pulmonary, chronic, far advanced, inactive.
6722 Tuberculosis, pulmonary, chronic, moderately advanced,
inactive......................................................
6723 Tuberculosis, pulmonary, chronic, minimal, inactive......
6724 Tuberculosis, pulmonary, chronic, inactive, advancement
unspecified...................................................
General Rating Formula for Inactive Pulmonary Tuberculosis:
For two years after date of inactivity, following active
tuberculosis, which was clinically identified during
service or subsequently................................... 100
Thereafter for four years, or in any event, to six years
after date of inactivity.................................. 50
Thereafter, for five years, or to eleven years after date
of inactivity............................................. 30
Following far advanced lesions diagnosed at any time while
the disease process was active, minimum................... 30
Following moderately advanced lesions, provided there is
continued disability, emphysema, dyspnea on exertion,
impairment of health, etc................................. 20
Otherwise.................................................. 0
Note (1): The 100-percent rating under codes 6701 through 6724
is not subject to a requirement of precedent hospital
treatment. It will be reduced to 50 percent for failure to
submit to examination or to follow prescribed treatment upon
report to that effect from the medical authorities. When a
veteran is placed on the 100-percent rating for inactive
tuberculosis, the medical authorities will be appropriately
notified of the fact, and of the necessity, as given in
footnote 1 to 38 U.S.C. 1156 (and formerly in 38 U.S.C. 356,
which has been repealed by Public Law 90-493), to notify the
Adjudication Division in the event of failure to submit to
examination or to follow treatment.
[[Page 46730]]
Note (2): The graduated 50-percent and 30-percent ratings and
the permanent 30 percent and 20 percent ratings for inactive
pulmonary tuberculosis are not to be combined with ratings for
other respiratory disabilities. Following thoracoplasty the
rating will be for removal of ribs combined with the rating
for collapsed lung. Resection of the ribs incident to
thoracoplasty will be rated as removal.
------------------------------------------------------------------------
Ratings for Pulmonary Tuberculosis Initially Evaluated After August 19,
1968
------------------------------------------------------------------------
6730 Tuberculosis, pulmonary, chronic, active................ 100
Note: Active pulmonary tuberculosis will be considered
permanently and totally disabling for non-service-
connected pension purposes in the following circumstances:
(a) Associated with active tuberculosis involving other
than the respiratory system.
(b) With severe associated symptoms or with extensive
cavity formation.
(c) Reactivated cases, generally.
(d) With advancement of lesions on successive
examinations or while under treatment.
(e) Without retrogression of lesions or other evidence
of material improvement at the end of six months
hospitalization or without change of diagnosis from
``active'' at the end of 12 months hospitalization.
Material improvement means lessening or absence of
clinical symptoms, and X-ray findings of a stationary
or retrogressive lesion.
6731 Tuberculosis, pulmonary, chronic, inactive:
Depending on the specific findings, rate residuals as
interstitial lung disease, restrictive lung disease, or,
when obstructive lung disease is the major residual, as
chronic bronchitis (DC 6600). Rate thoracoplasty as
removal of ribs under DC 5297.
Note: A mandatory examination will be requested immediately
following notification that active tuberculosis evaluated
under DC 6730 has become inactive. Any change in
evaluation will be carried out under the provisions of
Sec. 3.105(e).
6732 Pleurisy, tuberculous, active or inactive:
Rate under Secs. 4.88c or 4.89, whichever is appropriate.
------------------------------------------------------------------------
NONTUBERCULOUS DISEASES
------------------------------------------------------------------------
6817 Pulmonary Vascular Disease:
Primary pulmonary hypertension, or; chronic pulmonary
thromboembolism with evidence of pulmonary hypertension,
right ventricular hypertrophy, or cor pulmonale, or;
pulmonary hypertension secondary to other obstructive
disease of pulmonary arteries or veins with evidence of
right ventricular hypertrophy or cor pulmonale............ 100
Chronic pulmonary thromboembolism requiring anticoagulant
therapy, or; following inferior vena cava surgery without
evidence of pulmonary hypertension or right ventricular
dysfunction............................................... 60
Symptomatic, following resolution of acute pulmonary
embolism.................................................. 30
Asymptomatic, following resolution of pulmonary
thromboembolism........................................... 0
Note: Evaluate other residuals following pulmonary embolism
under the most appropriate diagnostic code, such as
chronic bronchitis (DC 6600) or chronic pleural effusion
or fibrosis (DC 6844), but do not combine that evaluation
with any of the above evaluations.
6819 Neoplasms, malignant, any specified part of
respiratory system exclusive of skin growths.............. 100
Note: A rating of 100 percent shall continue beyond the
cessation of any surgical, X-ray, antineoplastic
chemotherapy or other therapeutic procedure. 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. If there has
been no local recurrence or metastasis, rate on residuals.
6820 Neoplasms, benign, any specified part of respiratory
system. Evaluate using an appropriate respiratory analogy.
------------------------------------------------------------------------
Bacterial Infections of the Lung
------------------------------------------------------------------------
6822 Actinomycosis.
6823 Nocardiosis.
6824 Chronic lung abscess.
General Rating Formula for Bacterial Infections of the Lung
(diagnostic codes 6822 through 6824):
Active infection with systemic symptoms such as fever,
night sweats, weight loss, or hemoptysis.............. 100
Depending on the specific findings, rate residuals as
interstitial lung disease, restrictive lung disease, or,
when obstructive lung disease is the major residual, as
chronic bronchitis (DC 6600).
------------------------------------------------------------------------
Interstitial Lung Disease
------------------------------------------------------------------------
6825 Diffuse interstitial fibrosis (interstitial pneumonitis,
fibrosing alveolitis).
6826 Desquamative interstitial pneumonitis.
6827 Pulmonary alveolar proteinosis.
6828 Eosinophilic granuloma of lung.
6829 Drug-induced pulmonary pneumonitis and fibrosis.
6830 Radiation-induced pulmonary pneumonitis and fibrosis.
6831 Hypersensitivity pneumonitis (extrinsic allergic
alveolitis).
6832 Pneumoconiosis (silicosis, anthracosis, etc.).
6833 Asbestosis.
General Rating Formula for Interstitial Lung Disease
(diagnostic codes 6825 through 6833):
Forced Vital Capacity (FVC) less than 50-percent
predicted, or; Diffusion Capacity of the Lung for
Carbon Monoxide by the Single Breath Method (DLCO
(SB)) less than 40-percent predicted, or; maximum
exercise capacity less than 15 ml/kg/min oxygen
consumption with cardiorespiratory limitation, or; cor
pulmonale or pulmonary hypertension, or; requires
outpatient oxygen therapy............................. 100
FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40-
to 55-percent predicted, or; maximum exercise
capacity of 15 to 20 ml/kg/min oxygen consumption with
cardiorespiratory limitation.......................... 60
FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56-
to 65-percent predicted.............................. 30
[[Page 46731]]
FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66-
to 80-percent predicted.............................. 10
------------------------------------------------------------------------
Mycotic Lung Disease
------------------------------------------------------------------------
6834 Histoplasmosis of lung.
6835 Coccidioidomycosis.
6836 Blastomycosis.
6837 Cryptococcosis.
6838 Aspergillosis.
6839 Mucormycosis.
General Rating Formula for Mycotic Lung Disease (diagnostic
codes 6834 through 6839):
Chronic pulmonary mycosis with persistent fever, weight
loss, night sweats, or massive hemoptysis............. 100
Chronic pulmonary mycosis requiring suppressive therapy
with no more than minimal symptoms such as occasional
minor hemoptysis or productive cough.................. 50
Chronic pulmonary mycosis with minimal symptoms such as
occasional minor hemoptysis or productive cough....... 30
Healed and inactive mycotic lesions, asymptomatic...... 0
Note: Coccidioidomycosis has an incubation period up to 21
days, and the disseminated phase is ordinarily manifest
within six months of the primary phase. However, there are
instances of dissemination delayed up to many years after
the initial infection which may have been unrecognized.
Accordingly, when service connection is under
consideration in the absence of record or other evidence
of the disease in service, service in southwestern United
States where the disease is endemic and absence of
prolonged residence in this locality before or after
service will be the deciding factor.
------------------------------------------------------------------------
Restrictive Lung Disease
------------------------------------------------------------------------
6840 Diaphragm paralysis or paresis.
6841 Spinal cord injury with respiratory insufficiency.
6842 Kyphoscoliosis, pectus excavatum, pectus carinatum.
6843 Traumatic chest wall defect, pneumothorax, hernia, etc.
6844 Post-surgical residual (lobectomy, pneumonectomy, etc.).
6845 Chronic pleural effusion or fibrosis.
General Rating Formula for Restrictive Lung Disease
(diagnostic codes 6840 through 6845):
FEV-1 less than 40 percent of predicted value, or; the
ratio of Forced Expiratory Volume in one second to
Forced Vital Capacity (FEV-1/FVC) less than 40
percent, or; Diffusion Capacity of the Lung for Carbon
Monoxide by the Single Breath Method (DLCO (SB)) less
than 40-percent predicted, or; maximum exercise
capacity less than 15 ml/kg/min oxygen consumption
(with cardiac or respiratory limitation), or; cor
pulmonale (right heart failure), or; right ventricular
hypertrophy, or; pulmonary hypertension (shown by Echo
or cardiac catheterization), or; episode(s) of acute
respiratory failure, or; requires outpatient oxygen
therapy............................................... 100
FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of
40 to 55 percent, or; DLCO (SB) of 40- to 55-percent
predicted, or; maximum oxygen consumption of 15 to 20
ml/kg/min (with cardiorespiratory limit).............. 60
FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of
56 to 70 percent, or; DLCO (SB) 56- to 65-percent
predicted............................................. 30
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of
71 to 80 percent, or; DLCO (SB) 66- to 80-percent
predicted............................................. 10
Or rate primary disorder.
Note (1): A 100-percent rating shall be assigned for
pleurisy with empyema, with or without pleurocutaneous
fistula, until resolved.
Note (2): Following episodes of total spontaneous
pneumothorax, a rating of 100 percent shall be assigned as
of the date of hospital admission and shall continue for
three months from the first day of the month after
hospital discharge.
Note (3): Gunshot wounds of the pleural cavity with bullet
or missile retained in lung, pain or discomfort on
exertion, or with scattered rales or some limitation of
excursion of diaphragm or of lower chest expansion shall
be rated at least 20-percent disabling. Disabling injuries
of shoulder girdle muscles (Groups I to IV) shall be
separately rated and combined with ratings for respiratory
involvement. Involvement of Muscle Group XXI (DC 5321),
however, will not be separately rated.
6846 Sarcoidosis:
Cor pulmonale, or; cardiac involvement with congestive
heart failure, or; progressive pulmonary disease with
fever, night sweats, and weight loss despite treatment.... 100
Pulmonary involvement requiring systemic high dose
(therapeutic) corticosteroids for control................. 60
Pulmonary involvement with persistent symptoms requiring
chronic low dose (maintenance) or intermittent
corticosteroids........................................... 30
Chronic hilar adenopathy or stable lung infiltrates without
symptoms or physiologic impairment........................ 0
Or rate active disease or residuals as chronic bronchitis
(DC 6600) and extra-pulmonary involvement under specific
body system involved......................................
6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed):
Chronic respiratory failure with carbon dioxide retention
or cor pulmonale, or; requires tracheostomy............... 100
Requires use of breathing assistance device such as
continuous airway pressure (CPAP) machine................. 50
Persistent day-time hypersomnolence........................ 30
Asymptomatic but with documented sleep disorder breathing.. 0
------------------------------------------------------------------------
\1\ Review for entitlement to special monthly compensation under Sec.
3.350 of this chapter.
[FR Doc. 96-22593 Filed 9-4-96; 8:45 am]
BILLING CODE 8320-01-P