[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 ratingsrespiratory 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