[Federal Register Volume 61, Number 196 (Tuesday, October 8, 1996)]
[Rules and Regulations]
[Pages 52695-52702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25569]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AF01


Schedule for Rating Disabilities; Mental Disorders

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the sections of the Department of 
Veterans Affairs (VA) Schedule for Rating Disabilities pertaining to 
Mental Disorders. The intended effect of this action is to update the 
portion of the rating schedule that addresses mental disorders to 
ensure that it uses current medical terminology and unambiguous 
criteria, and that it reflects medical advances that have occurred 
since the last review.

EFFECTIVE DATE: This amendment is effective November 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) 273-7230.

SUPPLEMENTARY INFORMATION: VA published in the Federal Register of 
October 26, 1995 (60 FR 54825-31) a proposal to amend 38 CFR 4.16 and 
4.125 through 4.132, those sections of the rating schedule that address 
mental disorders. Interested persons were invited to submit written 
comments on or before December 26, 1995. We received comments from the 
American Legion, the Disabled American Veterans, the Veterans of 
Foreign Wars, the Vietnam Veterans of America, the American 
Psychological Association, the American Psychiatric Association, the 
Association of VA Chief Psychologists, and a concerned individual.
    Two commenters felt that sleep and sexual disorders should be 
included in the rating schedule because they may affect employability 
and functioning.
    Narcolepsy, a sleep disorder, is evaluated under diagnostic code 
(DC) 8108 in the neurological section of the schedule. We have 
published a proposed revision to the respiratory section of the 
schedule in the Federal Register of January 19, 1993 (58 FR 4962-69) 
that would add a diagnostic code (6846) and evaluation criteria for 
sleep apnea syndromes, another of the sleep disorders. However, in our 
judgment, other sleep disorders or sexual disorders would be service-
connected so infrequently that they do not warrant separate diagnostic 
codes and evaluation criteria in the schedule. Any that are determined 
to be service-connected can be evaluated under ``other and unspecified 
neurosis'' (DC 9410) or other appropriate analogous condition and be 
evaluated under the general rating formula for mental disorders. (See 
38 CFR 4.20.)
    Another commenter suggested that we establish zero-percent 
evaluations for sexual dysfunction and personality disorders so that, 
although VA would not compensate for the conditions, they could be 
service-connected for treatment purposes.
    A veteran is entitled to VA medical care for any mental disorder, 
including any sexual disorder, that is service-connected, i.e., is 
incurred in, or aggravated by, active military service. Whether a 
disability is service-connected, for treatment or compensation 
purposes, must be determined on a case by case basis. The determination 
is not based on whether the condition is included in the rating 
schedule; it is made under the VA regulations beginning at 38 CFR 
3.303. Therefore, adding sexual dysfunction and personality disorders 
to the rating schedule could not have the effect of conferring service 
connection for treatment purposes, as the commenter believes, and we 
make no change based on this comment.
    One commenter suggested that personality disorders should be 
included in the rating schedule.
    As 38 CFR 4.1 emphasizes, the rating schedule is primarily a guide 
in the evaluation of disability resulting from diseases or injuries 
encountered as a result of or incident to military service. Since 38 
CFR 3.303(c) specifically states that personality disorders are not 
diseases or injuries within the meaning of applicable legislation, they 
cannot be service-connected, and it would be inappropriate to include 
them in the rating schedule.

[[Page 52696]]

    One commenter stated that the notice of proposed rulemaking erred 
in stating that DSM-IV (Diagnostic and Statistical Manual of Mental 
Disorders, 4th edition) categorizes dementia associated with alcoholism 
and drugs as subtypes of dementia due to a general medical condition. 
The commenter points out that DSM-IV has separate categories for 
dementias associated with alcoholism and other drugs and suggested that 
VA establish a category for substance-induced dementia.
    We proposed that the title of DC 9326 be ``Dementia due to other 
neurologic or general medical conditions (endocrine disorders, 
metabolic disorders, drugs, alcohol, poisons, Pick's disease, brain 
tumors, etc.).'' In response to this comment, and for the sake of 
greater accuracy, we have revised the title to ``Dementia due to other 
neurologic or general medical conditions (endocrine disorders, 
metabolic disorders, Pick's disease, brain tumors, etc.) or that are 
substance-induced (drugs, alcohol, poisons).''
    Another commenter suggested that by addressing the 12 dementias 
described in DSM-IV under only six categories, VA ignores important 
differences between specific types of dementias, such as whether or not 
they are treatable.
    The six categories that we proposed, which are representative 
examples of the broad range of causes of dementias, are adequate for 
VA's purpose, which is to evaluate the severity of dementias when they 
occur. Since all dementias are evaluated under the General Rating 
Formula for Mental Disorders, increasing the number of categories would 
not affect evaluations.
    The same commenter recommended that we retain the previous title of 
DC 9310, ``dementia, primary, degenerative,'' because it is more 
accurate and appropriate than ``dementia of the Alzheimer's type,'' as 
DSM-IV lists the condition.
    DSM-IV is the basis for diagnosing and classifying mental disorders 
in the United States. Examination reports from both VA and non-VA 
practitioners will generally use the nomenclature adopted in DSM-IV, 
and it is important that the schedule use the same nomenclature 
whenever possible. Since the commenter offered no other reason for 
deviating from DSM-IV in this instance, we have retained the term 
``dementia of the Alzheimer's type'' as proposed.
    One commenter recommended that we retain the directions formerly 
found in Secs. 4.125 and 4.126, which stated that the psychiatric 
nomenclature employed is based upon the Diagnostic and Statistical 
Manual of Mental Disorders; that it is imperative that rating personnel 
familiarize themselves thoroughly with this manual; and, that a 
disorder will be diagnosed in accordance with the APA manual (DSM).
    The revised mental disorders sections contain similar directives 
about the use of DSM-IV as the former schedule had about DSM-III. If 
the diagnosis of a mental disorder does not conform to DSM-IV, or is 
not supported by the findings on the examination report, Sec. 4.125(a) 
requires the rating agency to return the report to the examiner to 
substantiate the diagnosis. Further, a note in Sec. 4.130 states that 
the nomenclature in the schedule is based on DSM-IV and that rating 
agencies must be thoroughly familiar with this manual to properly 
implement the directives in Sec. 4.125 through Sec. 4.129 and to apply 
the general rating formula for mental disorders in Sec. 4.130. This 
information is direct and unambiguous, and therefore there is no need 
to include the same material in Secs. 4.125 and 4.126.
    Three commenters suggested the rating schedule cite only ``the 
current edition of the DSM'' rather than ``DSM-IV,'' which they felt 
would eliminate the need for a regulatory change when a new edition is 
published.
    VA will need to study future revisions of the DSM to determine 
whether they warrant making changes in the schedule. However, such 
changes would require proper notice to the public through publication 
for review and comment in the Federal Register; having the rating 
schedule refer only to the ``current edition'' would not give 
sufficient notice under the Administrative Procedures Act. Also, VA 
does not avoid the need to revise the rating schedule by referring to 
the ``current edition'' of the DSM. This revision, for example, makes 
substantive revisions to the schedule itself based upon DSM-IV. If the 
regulations were to refer to the ``current edition'' of DSM, and 
another edition was published without the schedule being revised in 
accordance with that edition, the regulations would be internally 
inconsistent.
    Three commenters objected to the proposed language in Sec. 4.126(a) 
that would require the rating agency to assign an evaluation based on 
all the evidence of record ``rather than on the examiner's assessment 
of the level of disability at the moment of the examination.'' Two 
commenters suggested that revising the phrase to ``rather than solely 
on the examiner's assessment of the level of disability at the moment 
of the examination'' might be clearer.
    Since such a change might more clearly indicate that the examiner's 
assessment is a significant, but not the only, factor in determining 
the level of disability, we have revised the sentence as the commenters 
suggested.
    One commenter suggested two changes to the proposed Sec. 4.126(a). 
Because the commenter felt the proposed language does not clearly 
instruct the adjudicator to assess current findings in light of the 
history of the disability, the commenter recommended that the 
regulation direct the rating agency to assign an evaluation based on 
all evidence of record ``as it bears on current occupational and social 
impairment rather than solely on isolated examination findings which 
may only represent episodic changes.'' The commenter also suggested 
that in order to prevent rating agencies from overestimating the value 
of short periods of remission, we modify the language to require rating 
agencies to consider the veteran's capacity for adjustment during 
periods of sustained remission.
    The language proposed for Sec. 4.126(a) reinforces Sec. 4.2, which 
requires the rating agency to interpret reports of examination in light 
of the entire recorded history. Furthermore, Sec. 4.126(a) requires 
rating agencies to consider the length of remissions and the veteran's 
capacity for adjustment during periods of remission, and to assign an 
evaluation based on all evidence of record that bears on occupational 
and social impairment. ``Sustained'' is a subjective term that may not 
be applied consistently, and, in our judgment, the language as proposed 
is more likely to assure that the length of remissions is considered 
and given appropriate weight in the context of all evidence of record. 
We have, therefore, made no change based on these suggestions.
    One commenter opposed the proposed deletion of the statement in 
former Sec. 4.130 that ``the examiner's analysis of the 
symptomatology'' is one of the ``essentials'' and objected to the 
statement in the preamble that VA will no longer rely on a subjective 
determination as to the degree of impairment.
    The evaluation levels in the proposed general rating formula for 
mental disorders are based on the effects of the signs and symptoms of 
mental disorders. To be adequate for evaluation purposes under that 
formula, an examination report must describe an individual's signs and 
symptoms as well as their effects on occupational and social 
functioning. In essence, we have restructured the evaluation criteria 
so

[[Page 52697]]

that it is the severity of the effects of the symptoms as described by 
the examiner that determines the rating. As a result, the statement 
previously contained in Sec. 4.130 regarding the examiner's analysis of 
symptomatology would be redundant and is no longer necessary. We have 
therefore made no changes based on this comment.
    Another commenter suggested that the use of the word ``severe'' at 
the 70-percent level in the general rating formula for mental disorders 
violates the principle that vague, subjective terms should not be used 
in the rating schedule. The commenter also contends that the use of 
``severe'' by an examining doctor to characterize a mental disorder 
will often be used as the sole basis for granting a 70-percent 
evaluation because a 70-percent evaluation requires ``severe'' 
occupational and social impairment. The commenter therefore suggested 
that we delete the word ``severe'' in the general rating formula for 
mental disorders.
    Since it is VA's intent that the evaluation will be determined by 
the examiner's description of the signs and symptoms and their effects 
rather than by an overall characterization of the condition, we have 
deleted the word ``severe'' from the 70-percent criteria in the general 
rating formula for mental disorders, as the commenter suggested.
    One commenter suggested we require a social and industrial survey 
as an integral part of an overall rating evaluation.
    A social and industrial survey is not necessary to evaluate every 
mental disorder; the information provided by the examiner will 
generally be sufficient to determine the proper evaluation. Whether the 
additional information provided by a social and industrial survey is 
necessary to assure an accurate evaluation is best determined by either 
the examiner or rating agency on a case by case basis. Requiring a 
survey in every case would serve no purpose and would therefore cause 
unwarranted delays in the processing of claims.
    One commenter stated that a 10-percent evaluation when symptoms are 
controlled by continuous medication is too low to allow for the side 
effects of medication, which may themselves be incapacitating.
    In our judgment, 10 percent is an adequate evaluation in the 
average situation where symptoms of a mental disorder are controlled by 
continuous medication. 38 CFR 3.310(a) states that a disability that is 
proximately due to a service-connected disease or injury shall be 
service-connected and considered as part of the original condition. 
Therefore, disabling conditions that result from medication for a 
service-connected mental disorder and that warrant more than a ten 
percent evaluation can be service-connected and separately evaluated 
under an appropriate diagnostic code.
    One commenter suggested that we adopt separate rating formulae 
tailored to each psychiatric disorder rather than using a general 
rating formula for mental disorders as proposed.
    Many of the signs, symptoms, and effects of mental disorders are 
not unique to specific diagnostic entities, as evidenced by the fact 
that the Global Assessment of Functioning Scale in DSM-IV uses a single 
set of criteria for assessing psychological, social, and occupational 
functioning in all mental disorders. The symptoms in the general rating 
formula for mental disorders are representative examples of symptoms 
that often result in specific levels of disability. In our judgment, 
using a general rating formula for mental disorders is a better way to 
assure that mental disorders producing similar impairment will be 
evaluated consistently.
    One commenter suggested that we evaluate post-traumatic stress 
disorder (PTSD) not under a general rating formula for mental disorders 
but under a separate formula based on the frequency of symptoms 
particular to PTSD, i.e., nightmares, flashbacks, troubling intrusive 
memories, uncontrollable rage, and startle response.
    The distinctive PTSD symptoms listed by the commenter are used to 
diagnose PTSD rather than evaluate the degree of disability resulting 
from the condition. Although certain symptoms must be present in order 
to establish the diagnosis of PTSD, as with other conditions it is not 
the symptoms, but their effects, that determine the level of 
impairment. For example, it is not the presence of ``flashbacks,'' per 
se, but their effects, such as impaired impulse control, anxiety, or 
difficulty adapting to stressful situations, that determine the 
evaluation. We have, therefore, made no changes based on this 
suggestion.
    One commenter argued that the proposed criteria for a total 
evaluation include more symptoms of thought disorders than of mood 
disorders, and, as a result, mood disorders are less likely than 
thought disorders to be evaluated as totally disabling.
    As previously discussed, it is the severity of the effects of a 
mental disorder that determine the rating. To be assigned a 100 percent 
rating, a mental disorder must cause total occupational and social 
impairment. Mood disorders that are characterized by grossly 
inappropriate behavior, persistent danger of hurting self or others, or 
intermittent inability to perform activities of daily living, may cause 
total occupational and social impairment in some individuals. Since the 
evaluation criteria would clearly support a total evaluation for a mood 
disorder under those circumstances, we make no change based on this 
comment.
    Another commenter suggested that we determine evaluation levels on 
the basis of an individual's earnings. For example, if there were no 
gainful employment, or if earnings did not exceed $3600 per year over a 
two year period, a disability would be considered totally disabling.
    Ratings are based primarily upon the average impairment in earning 
capacity, that is, upon the economic or industrial handicap which must 
be overcome and not from individual success in overcoming it (see 38 
CFR 4.15). Defining levels of disability for mental disorders in terms 
of an individual's earnings would be inconsistent with that principle 
and, furthermore, would not take into account other variables that 
might affect earnings, such as the presence and severity of other 
service-connected or non-service-connected disabilities, differences in 
the prevailing wage in different localities, part time employment, etc. 
For these reasons, it is not feasible to evaluate mental disabilities 
based on the veteran's earnings.
    One commenter said that the evaluation criteria for the 50-percent 
and the 70-percent levels are too complicated and will therefore be 
difficult to apply; however, the commenter offered no alternative 
criteria for us to consider.
    The criteria in the general rating formula for mental disorders 
include examples and indicate specific effects of social and 
occupational impairment for various evaluation levels. The 50-percent 
level, for example, requires ``reduced reliability and productivity,'' 
while the 70-percent level requires ``deficiencies in most areas, such 
as work, school, family relations, judgment, thinking, or mood.'' 
Examples of signs and symptoms that are typically associated with that 
level of impairment are listed at each level. This formula offers 
sufficient guidance to the rating agency to assure consistent 
evaluations, but not so much detail that it is impractical or 
inflexible. Since the commenter offered no alternative method of 
evaluation for us to consider, we have adopted the general rating 
formula as proposed.

[[Page 52698]]

    One commenter suggested that Sec. 4.127 be revised to establish 
that mental retardation and personality disorders, while not 
disabilities for compensation purposes, can be considered in 
determining whether a veteran is permanently and totally disabled for 
non-service-connected pension purposes.
    As proposed, Sec. 4.127 would have stated that mental retardation 
and personality disorders would not be considered as ``disabilities 
under the terms of the schedule.'' For the sake of clarity, we have 
revised the proposed language of Sec. 4.127 to state that those 
conditions are not ``diseases or injuries for compensation purposes, 
and, except as provided in Sec. 3.310(a) of this chapter, disability 
resulting from them may not be service-connected.''
    One commenter said that Sec. 4.127 should explain that personality 
disorders may be service-connected secondary to epilepsy and other 
conditions.
    38 CFR 3.310(a) states that a disability that is proximately due to 
or the result of a service-connected disease or injury shall be service 
connected and considered part of the original condition. Therefore, 
organic personality disorders that develop secondary to service-
connected head trauma, epilepsy, etc., (called ``personality change due 
to a general medical condition'' in DSM-IV) will be service-connected 
as secondary to those conditions and evaluated under the general rating 
formula for mental disorders. To reinforce that principle, we have 
added the phrase, ``except as provided in Sec. 3.310(a) of this 
chapter,'' to Sec. 4.127, as discussed above. For the sake of clarity, 
we have also revised the title of DC 9327, organic mental disorder, 
other, to include ``personality change due to a general medical 
condition.''
    The former Sec. 4.127 addressed mental deficiency and personality 
disorders and stated that ``superimposed psychotic disorders developing 
after enlistment, i.e., mental deficiency with psychotic disorder, or 
personality disorder with psychotic disorder, are to be considered as 
disabilities analogous to, and ratable as, schizophrenia, unless 
otherwise diagnosed.'' We proposed to revise Sec. 4.127 to state that a 
mental disorder that is superimposed upon, but clearly separate from, 
mental retardation or a personality disorder may be a disability for VA 
compensation purposes.
    Two commenters contend that it is not feasible to attribute signs 
and symptoms to one of two or more coexisting conditions, and another 
commenter submitted a medical statement addressing the potential 
difficulty of such an undertaking.
    Our intent in proposing the revision was to clarify that any mental 
disorders, not only psychotic disorders, that are incurred or 
aggravated in service may be disabilities for VA compensation purposes, 
even if superimposed upon mental retardation or a personality disorder. 
In view of the commenters' concerns, however, and in order to prevent 
any misunderstanding, we have revised this section. We deleted ``a 
mental disorder that is superimposed upon, but clearly separate from, 
mental retardation or a personality disorder may be a disability for VA 
compensation purposes'' in Sec. 4.127 and substituted the sentence, 
``However, disability resulting from a mental disorder that is 
superimposed upon mental retardation or a personality disorder may be 
service-connected.'' The need to distinguish the effects of one 
condition from those of another is not unique to mental disorders, but 
occurs whenever two conditions, one service-connected and one not, 
affect similar functions or anatomic areas. When it is not possible to 
separate the effects of the conditions, VA regulations at 38 CFR 3.102, 
which require that reasonable doubt on any issue be resolved in the 
claimant's favor, clearly dictate that such signs and symptoms be 
attributed to the service-connected condition.
    One commenter stated that the proposed change to Sec. 4.127 
precludes personality disorders from being considered as part of a 
service-connected disability, which the commenter felt represented an 
arbitrary change.
    The previous schedule merely directed that psychotic disorders 
superimposed upon mental deficiency or personality disorder be 
considered analogous to, and ratable as, schizophrenia. It did not 
address how to carry out the evaluation, or specifically how to assess 
the signs and symptoms of the preexisting condition. The revised 
Sec. 4.127 represents no change in rating procedures, except for 
expanding this provision to include all mental disorders. As explained 
above, procedures for determining an evaluation in such cases are not 
unique to mental disorders and have not been changed.
    One commenter felt that the development of a mental disorder during 
service should establish aggravation of any preexisting personality 
disorder, for purposes of disability compensation; another felt that a 
personality disorder that worsens during service could affect 
employability and thus warrant disability compensation.
    Section 4.127 establishes that mental retardation and personality 
disorders are not diseases or injuries for VA compensation purposes and 
that disability resulting from them may not be service-connected. 
Service connection of personality disorders, whether on a direct basis 
or by aggravation, is therefore prohibited, and we have made no change 
based on these comments.
    The previous rating schedule stated that social inadaptability was 
to be evaluated only as it affected industrial inadaptability and was 
not to be used as the sole basis for assigning a percentage evaluation 
(Sec. 4.129). We proposed to retain this concept by stating in 
Sec. 4.126(b) that the rating agency will consider the extent of social 
impairment, but shall not assign an evaluation solely on the basis of 
social impairment. Three commenters addressed this issue.
    One commenter suggested that we revise Sec. 4.126(b) to place 
greater emphasis on social impairment as a good indicator of the level 
of industrial impairment.
    The evaluation criteria in the general rating formula for mental 
disorders include facets of both occupational and social impairment, 
and both may be taken into consideration in the evaluation of a mental 
disorder. Revision of Sec. 4.126(b) to place greater emphasis on social 
impairment is therefore unnecessary because the extent of social 
impairment is an inherent part of the evaluation criteria. We have 
therefore made no revision based on this comment.
    Two commenters suggested that we revise Sec. 4.126(b) to allow 
service connection at zero percent for conditions that produce social 
impairment, but no occupational impairment, so that veterans would be 
eligible for VA medical treatment.
    As previously discussed, service-connected conditions are entitled 
to VA medical care, but whether a condition is service-connected is 
determined under the VA regulations beginning at 38 CFR 3.303, not 
under the rating schedule. It would therefore be inappropriate to adopt 
this suggestion.
    Two commenters urged that VA include substance abuse disorders in 
the disability rating schedule because they frequently affect 
employability, and any mental disorder that affects employment should 
be covered by the rating system.
    The most common substance abuse disorders are abuse of alcohol and 
drugs. Since they are addressed

[[Page 52699]]

elsewhere in VA regulations (see 38 CFR 3.1 and 3.301(a)), they need 
not be included in the rating schedule.
    Two commenters felt that the term ``psychic trauma'' in the title 
of Sec. 4.129, Mental disorders due to psychic trauma, connotes 
extrasensory or paranormal influences on mental processes and suggested 
that we substitute the term ``traumatic stress disorders.''
    Based on this suggestion, we have retitled Sec. 4.129 as ``Mental 
disorders due to traumatic stress.''
    As proposed, Sec. 4.125 would require a rating agency to determine 
whether a change in diagnosis is a progression of a prior diagnosis, a 
correction of an error in a previous diagnosis, or the development of a 
new and separate condition. Two commenters suggested that a fourth 
reason for a change in diagnosis, the use of a new diagnostic term not 
previously available to rating agencies, be added to the list.
    A ``new diagnostic term not previously available to rating 
agencies'' necessarily implies a diagnostic term that has evolved since 
publication of DSM-IV. 38 CFR 4.125(a) requires that the diagnosis of a 
mental disorder must conform to DSM-IV. Therefore, the only diagnostic 
terms for mental disorders that are acceptable for rating purposes are 
those in DSM-IV. Appendices in DSM-III, DSM-III-R, and DSM-IV highlight 
changes in terminology from the previous DSM editions, and rating 
agencies may refer to them to reconcile differences from earlier 
terminology, if necessary. However, diagnostic terms that postdate DSM-
IV are not acceptable for rating purposes, and we make no change based 
on this comment.
    If a mental disorder has been assigned a total evaluation due to a 
continuous period of hospitalization lasting six months or more, we 
proposed to require in Sec. 4.128 that the rating agency continue the 
total evaluation indefinitely and schedule an examination six months 
after the veteran is discharged or released to nonbed care and that a 
change in evaluation based on that examination would be subject to the 
notice and effective date provisions of 38 CFR 3.105(e). One commenter 
suggested that we add references to 38 CFR 3.344, ``Stabilization of 
disability evaluations,'' and 3.340, ``Total and permanent total 
ratings and unemployability.''
    Sections 3.340 and 3.344 are not limited to mental disorders, but 
are generally applicable, and, as such, must always be considered by 
rating agencies when revising evaluations. The provisions of Sec. 4.128 
ensure a total evaluation during a period of adjustment after a lengthy 
hospitalization for a mental disorder. Since Secs. 3.340 and 3.344 
would not apply until that temporary total evaluation is revised 
following the examination required by Sec. 4.128, we make no change 
based on this comment.
    One commenter suggested that we retain in Sec. 4.129 historical 
information about stress-induced disorders formerly found in 
Sec. 4.131.
    The expository material that we proposed to remove from Sec. 4.131 
described the etiology and diagnosis of stress-induced disorders; it 
did not set forth VA policy or establish procedures that rating 
agencies must follow when evaluating those conditions. That material is 
therefore not appropriate in a regulation, and we have made no change 
based on this suggestion.
    One commenter objected to the proposed removal of language from 
Sec. 4.130 specifically stating that two of the most important 
determinants of disability are time lost from gainful work and decrease 
in work efficiency.
    Those principles are reflected in the evaluation criteria of the 
general rating formula for mental disorders, which evaluate the signs 
and symptoms of mental disorders according to their effects, i.e., 
reduced reliability and productivity, occasional decreases in work 
efficiency, intermittent periods of inability to perform occupational 
work tasks, etc. Comments about work attendance and efficiency would be 
redundant in Sec. 4.130, and we have made no change based on this 
comment.
    38 CFR 4.16 provides that any veteran unable to secure or follow a 
substantially gainful occupation because of service-connected 
disabilities will be awarded a total evaluation even though the 
schedular evaluation is less than total; it also establishes criteria 
for establishing entitlement to such extra-schedular total evaluations. 
We proposed to delete Sec. 4.16(c), which stated that mental disorders 
meeting certain criteria should be assigned a 100-percent evaluation 
under the schedule, rather than an extra-schedular total evaluation. 
One commenter did not object to the proposed deletion of Sec. 4.16(c), 
but noted that, for a veteran with a single disability, Sec. 4.16(a) 
requires that the disability be 60 percent or more disabling to 
establish entitlement to a total evaluation due to unemployability. The 
commenter stated that because there is no 60-percent evaluation level 
in the general rating formula for mental disorders, veterans with 
mental disorders would be disadvantaged. The commenter recommended that 
we revise Sec. 4.16(a) to require a 50-percent rating for a single 
disability rather than a 60-percent rating, and to state that total 
disability ratings shall (rather than may) be assigned when a veteran's 
disabilities satisfy specified criteria.
    Since revisions to Sec. 4.16(a) and (b), which establish general 
criteria for total disability evaluations for compensation because an 
individual is unemployable, are beyond the scope of this rulemaking, 
which is specific to mental disorders, we make no change. VA is 
addressing the issue of individual unemployability, including the 
provisions of 38 CFR 4.16(a) and (b), in a separate rulemaking (RIN 
2900-AH21). We note, however, that veterans with mental disorders are 
not disadvantaged under current Sec. 4.16. Well-established regulatory 
procedures in 38 CFR 4.16(b) authorize VA to assign a total evaluation 
for unemployability to a veteran with a single disability evaluated 
less than 60-percent disabling, if the disability renders the veteran 
unemployable.
    One commenter encouraged VA to recognize the value of objective 
assessment by psychological and neuropsychological tests and 
incorporate the use of these diagnostic tools within the disability 
rating system.
    The use of specific diagnostic tools, such as psychological and 
neuropsychological testing, may be requested at the discretion of an 
examiner. However, since such tests are primarily for diagnostic, 
rather than evaluation, purposes, it would serve no purpose to address 
them in the rating schedule, which is a guide to the evaluation of 
disabilities.
    One commenter suggested that we revise the cross references in 38 
CFR 4.13 to reflect changes adopted in this rulemaking.
    We have amended 38 CFR 4.13 accordingly.
    The same commenter suggested that we revise the note regarding 
mental disorders in epilepsies under diagnostic codes 8910-8914 in the 
schedule for rating neurological disorders to correct the diagnostic 
terms and cross-referenced diagnostic codes.
    The note in Sec. 4.124a is included in the schedule for rating 
neurological conditions and convulsive disorders and is therefore 
beyond the scope of this rulemaking. VA is revising the portion of the 
rating schedule that addresses neurological disorders in a separate 
rulemaking, and we will address those issues in that revision.
    One commenter recommended that VA consider incorporating the 
International Classification of Impairments, Disabilities, and 
Handicaps (ICIDH) into the VA schedule for rating mental disorders. The 
ICIDH, which focuses on functionality, was

[[Page 52700]]

developed and issued by the World Health Organization (WHO), in 1980. 
WHO is currently revising it. When the revised version is published, VA 
will review it to assess its usefulness for VA rating purposes.
    On further review, we have revised the proposed language of 
Sec. 4.129 for the sake of clarity and have also updated the term 
``rating board'' to ``rating agency'' throughout the mental disorders 
sections.
    VA appreciates the comments submitted in response to the proposed 
rule, which is now adopted as a final rule with the changes noted 
above.
    The Secretary hereby certifies that this regulatory amendment will 
not have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (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 rule has been reviewed under Executive Order 12866 by the 
Office of Management and Budget.
    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: September 9, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
    For the reasons set out in the preamble, 38 CFR part 4 is amended 
as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

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

    Authority: 38 U.S.C. 1155.

Subpart A--[Amended]

    2. In Sec. 4.13, the third sentence is revised to read as follows:


Sec. 4.13  Effect of change of diagnosis.

* * * * *
    The relevant principle enunciated in Sec. 4.125, entitled 
``Diagnosis of mental disorders,'' should have careful attention in 
this connection.
* * * * *


Sec. 4.16  [Amended]

    3. In Sec. 4.16, paragraph (c) is removed.

Subpart B--[Amended]

    4. Section 4.125 is revised to read as follows:


Sec. 4.125  Diagnosis of mental disorders.

    (a) If the diagnosis of a mental disorder does not conform to DSM-
IV or is not supported by the findings on the examination report, the 
rating agency shall return the report to the examiner to substantiate 
the diagnosis.
    (b) If the diagnosis of a mental disorder is changed, the rating 
agency shall determine whether the new diagnosis represents progression 
of the prior diagnosis, correction of an error in the prior diagnosis, 
or development of a new and separate condition. If it is not clear from 
the available records what the change of diagnosis represents, the 
rating agency shall return the report to the examiner for a 
determination.

(Authority: 38 U.S.C. 1155)

    5. Section 4.126 is revised to read as follows:


Sec. 4.126  Evaluation of disability from mental disorders.

    (a) When evaluating a mental disorder, the rating agency shall 
consider the frequency, severity, and duration of psychiatric symptoms, 
the length of remissions, and the veteran's capacity for adjustment 
during periods of remission. The rating agency shall assign an 
evaluation based on all the evidence of record that bears on 
occupational and social impairment rather than solely on the examiner's 
assessment of the level of disability at the moment of the examination.
    (b) When evaluating the level of disability from a mental disorder, 
the rating agency will consider the extent of social impairment, but 
shall not assign an evaluation solely on the basis of social 
impairment.
    (c) Delirium, dementia, and amnestic and other cognitive disorders 
shall be evaluated under the general rating formula for mental 
disorders; neurologic deficits or other impairments stemming from the 
same etiology (e.g., a head injury) shall be evaluated separately and 
combined with the evaluation for delirium, dementia, or amnestic or 
other cognitive disorder (see Sec. 4.25).
    (d) When a single disability has been diagnosed both as a physical 
condition and as a mental disorder, the rating agency shall evaluate it 
using a diagnostic code which represents the dominant (more disabling) 
aspect of the condition (see Sec. 4.14).

(Authority: 38 U.S.C. 1155)

    6. Section 4.127 is revised to read as follows:


Sec. 4.127  Mental retardation and personality disorders.

    Mental retardation and personality disorders are not diseases or 
injuries for compensation purposes, and, except as provided in 
Sec. 3.310(a) of this chapter, disability resulting from them may not 
be service-connected. However, disability resulting from a mental 
disorder that is superimposed upon mental retardation or a personality 
disorder may be service-connected.

(Authority: 38 U.S.C. 1155)

    7. Section 4.128 is revised to read as follows:


Sec. 4.128  Convalescence ratings following extended hospitalization.

    If a mental disorder has been assigned a total evaluation due to a 
continuous period of hospitalization lasting six months or more, the 
rating agency shall continue the total evaluation indefinitely and 
schedule a mandatory examination six months after the veteran is 
discharged or released to nonbed care. A change in evaluation based on 
that or any subsequent examination shall be subject to the provisions 
of Sec. 3.105(e) of this chapter.

(Authority: 38 U.S.C. 1155)

    8. Section 4.129 is revised to read as follows:


Sec. 4.129  Mental disorders due to traumatic stress.

    When a mental disorder that develops in service as a result of a 
highly stressful event is severe enough to bring about the veteran's 
release from active military service, the rating agency shall assign an 
evaluation of not less than 50 percent and schedule an examination 
within the six month period following the veteran's discharge to 
determine whether a change in evaluation is warranted.

(Authority: 38 U.S.C. 1155)


Secs. 4.130 and 4.131  [Removed]

    9. Sections 4.130 and 4.131 are removed.


Sec. 4.132  [Redesignated as Sec. 4.130]

    10. Section 4.132 is redesignated as Sec. 4.130 and newly 
redesignated Sec. 4.130 is revised to read as follows:


Sec. 4.130  Schedule of ratings--mental disorders.

    The nomenclature employed in this portion of the rating schedule is 
based upon the Diagnostic and Statistical Manual of Mental Disorders, 
Fourth Edition, of the American Psychiatric Association (DSM-IV). 
Rating agencies must be thoroughly familiar with this manual to 
properly implement the directives in Sec. 4.125 through Sec. 4.129 and

[[Page 52701]]

to apply the general rating formula for mental disorders in Sec. 4.130. 
The schedule for rating for mental disorders is set forth as follows:

------------------------------------------------------------------------
                                                                Rating  
------------------------------------------------------------------------
               Schizophrenia and Other Psychotic Disorders              
                                                                        
------------------------------------------------------------------------
9201  Schizophrenia, disorganized type                                  
9202  Schizophrenia, catatonic type                                     
9203  Schizophrenia, paranoid type                                      
9204  Schizophrenia, undifferentiated type                              
9205  Schizophrenia, residual type; other and unspecified               
 types                                                                  
9208  Delusional disorder                                               
9210  Psychotic disorder, not otherwise specified (atypical             
 psychosis)                                                             
9211  Schizoaffective disorder                                          
                                                                        
------------------------------------------------------------------------
     Delirium, Dementia, and Amnestic and Other Cognitive Disorders     
                                                                        
------------------------------------------------------------------------
9300  Delirium                                                          
9301  Dementia due to infection (HIV infection, syphilis,               
 or other systemic or intracranial infections)                          
9304  Dementia due to head trauma                                       
9305  Vascular dementia                                                 
9310  Dementia of unknown etiology                                      
9312  Dementia of the Alzheimer's type                                  
9326  Dementia due to other neurologic or general medical               
 conditions (endocrine disorders, metabolic disorders,                  
 Pick's disease, brain tumors, etc.) or that are substance-             
 induced (drugs, alcohol, poisons)                                      
9327  Organic mental disorder, other (including personality             
 change due to a general medical condition)                             
                                                                        
------------------------------------------------------------------------
                            Anxiety Disorders                           
                                                                        
------------------------------------------------------------------------
9400  Generalized anxiety disorder                                      
9403  Specific (simple) phobia; social phobia                           
9404  Obsessive compulsive disorder                                     
9410  Other and unspecified neurosis                                    
9411  Post-traumatic stress disorder                                    
9412  Panic disorder and/or agoraphobia                                 
9413  Anxiety disorder, not otherwise specified                         
                                                                        
------------------------------------------------------------------------
                         Dissociative Disorders                         
                                                                        
------------------------------------------------------------------------
9416  Dissociative amnesia; dissociative fugue;                         
 dissociative identity disorder (multiple personality                   
 disorder)                                                              
9417  Depersonalization disorder                                        
                                                                        
------------------------------------------------------------------------
                          Somatoform Disorders                          
                                                                        
------------------------------------------------------------------------
9421  Somatization disorder                                             
9422  Pain disorder                                                     
9423  Undifferentiated somatoform disorder                              
9424  Conversion disorder                                               
9425  Hypochondriasis                                                   
                                                                        
------------------------------------------------------------------------
                             Mood Disorders                             
                                                                        
------------------------------------------------------------------------
9431  Cyclothymic disorder                                              
9432  Bipolar disorder                                                  
9433  Dysthymic disorder                                                
9434  Major depressive disorder                                         
9435  Mood disorder, not otherwise specified                            
                                                                        
------------------------------------------------------------------------
                       Chronic Adjustment Disorder                      
                                                                        
------------------------------------------------------------------------
9440  Chronic adjustment disorder                                       
    General Rating Formula for Mental Disorders:                        
        Total occupational and social impairment, due to                
         such symptoms as: gross impairment in thought                  
         processes or communication; persistent delusions               
         or hallucinations; grossly inappropriate behavior;             
         persistent danger of hurting self or others;                   
         intermittent inability to perform activities of                
         daily living (including maintenance of minimal                 
         personal hygiene); disorientation to time or                   
         place; memory loss for names of close relatives,               
         own occupation, or own name.......................          100
        Occupational and social impairment, with                        
         deficiencies in most areas, such as work, school,              
         family relations, judgment, thinking, or mood, due             
         to such symptoms as: suicidal ideation;                        
         obsessional rituals which interfere with routine               
         activities; speech intermittently illogical,                   
         obscure, or irrelevant; near-continuous panic or               
         depression affecting the ability to function                   
         independently, appropriately and effectively;                  
         impaired impulse control (such as unprovoked                   
         irritability with periods of violence); spatial                
         disorientation; neglect of personal appearance and             
         hygiene; difficulty in adapting to stressful                   
         circumstances (including work or a worklike                    
         setting); inability to establish and maintain                  
         effective relationships...........................           70

[[Page 52702]]

                                                                        
        Occupational and social impairment with reduced                 
         reliability and productivity due to such symptoms              
         as: flattened affect; circumstantial,                          
         circumlocutory, or stereotyped speech; panic                   
         attacks more than once a week; difficulty in                   
         understanding complex commands; impairment of                  
         short- and long-term memory (e.g., retention of                
         only highly learned material, forgetting to                    
         complete tasks); impaired judgment; impaired                   
         abstract thinking; disturbances of motivation and              
         mood; difficulty in establishing and maintaining               
         effective work and social relationships...........           50
        Occupational and social impairment with occasional              
         decrease in work efficiency and intermittent                   
         periods of inability to perform occupational tasks             
         (although generally functioning satisfactorily,                
         with routine behavior, self-care, and conversation             
         normal), due to such symptoms as: depressed mood,              
         anxiety, suspiciousness, panic attacks (weekly or              
         less often), chronic sleep impairment, mild memory             
         loss (such as forgetting names, directions, recent             
         events)...........................................           30
        Occupational and social impairment due to mild or               
         transient symptoms which decrease work efficiency              
         and ability to perform occupational tasks only                 
         during periods of significant stress, or; symptoms             
         controlled by continuous medication...............           10
        A mental condition has been formally diagnosed, but             
         symptoms are not severe enough either to interfere             
         with occupational and social functioning or to                 
         require continuous medication.....................            0
                                                                        
------------------------------------------------------------------------
                            Eating Disorders                            
                                                                        
------------------------------------------------------------------------
9520  Anorexia nervosa                                                  
9521  Bulimia nervosa                                                   
    Rating Formula for Eating Disorders:                                
        Self-induced weight loss to less than 80 percent of             
         expected minimum weight, with incapacitating                   
         episodes of at least six weeks total duration per              
         year, and requiring hospitalization more than                  
         twice a year for parenteral nutrition or tube                  
         feeding...........................................          100
        Self-induced weight loss to less than 85 percent of             
         expected minimum weight with incapacitating                    
         episodes of six or more weeks total duration per               
         year..............................................           60
        Self-induced weight loss to less than 85 percent of             
         expected minimum weight with incapacitating                    
         episodes of more than two but less than six weeks              
         total duration per year...........................           30
        Binge eating followed by self-induced vomiting or               
         other measures to prevent weight gain, or                      
         resistance to weight gain even when below expected             
         minimum weight, with diagnosis of an eating                    
         disorder and incapacitating episodes of up to two              
         weeks total duration per year.....................           10
        Binge eating followed by self-induced vomiting or               
         other measures to prevent weight gain, or                      
         resistance to weight gain even when below expected             
         minimum weight, with diagnosis of an eating                    
         disorder but without incapacitating episodes......            0
------------------------------------------------------------------------

    Note: An incapacitating episode is a period during which bed 
rest and treatment by a physician are required.

(Authority: 38 U.S.C. 1155)

[FR Doc. 96-25569 Filed 10-7-96; 8:45 am]
BILLING CODE 8320-01-P