[Federal Register Volume 62, Number 36 (Monday, February 24, 1997)]
[Proposed Rules]
[Pages 8204-8205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4415]


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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4

RIN 2900-AI22


Intervertebral Disc Syndrome

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the Department of Veterans 
Affairs (VA) Schedule for Rating Disabilities by revising the 
evaluation criteria for diagnostic code 5293, intervertebral disc 
syndrome. The intended effect of this amendment is to clarify the 
criteria to ensure that veterans diagnosed with this condition meet 
uniform criteria and receive consistent evaluations.

DATES: Comments must be received by VA on or before April 25, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW, Room 1154, Washington DC 20420. Comments should 
indicate that they are in response to ``RIN 2900-AI22.'' All written 
comments will be available for public inspection at the above address 
in the Office of Regulations Management, Room 1158, between the hours 
of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays).

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 
Ave., NW, Washington, DC 20420, (202) 273-7230.

SUPPLEMENTARY INFORMATION: The central portion of one or more 
intervertebral discs, cartilages that separate the spinal vertebrae, 
may protrude or rupture through the outer fibrous part of the disc and 
compress or irritate the adjacent nerve root. Intervertebral disc 
syndrome is a group of signs and symptoms due to nerve root irritation 
that commonly includes back pain and sciatica (pain along the course of 
the sciatic nerve) in the case of lumbar disc disease, and neck and arm 
or hand pain in the case of cervical disc disease. It may also include 
scoliosis, paravertebral muscle spasm, limitation of motion of the 
spine, tenderness over the spine, limitation of straight leg raising, 
and neurologic findings corresponding to the level of the disc. If the 
disc compresses the cauda equina (the collection of nerve roots 
extending from the lower end of the spinal cord), bowel or bladder 
sphincter functions or sexual function may also be affected.
    Intervertebral disc syndrome has a variable course and variable 
manifestations. Many people have a series of relapses and remissions of 
back pain and sciatica over a long period of time with no symptoms 
during remission; other patients experience chronic signs and symptoms.
    The current evaluation criteria for intervertebral disc syndrome 
(DC 5293) include: a 60-percent evaluation for persistent sciatic 
neuropathy or other neurologic findings, with little intermittent 
relief; a 40-percent evaluation for severe recurring attacks; a 20-
percent evaluation for moderate recurring attacks; a 10-percent 
evaluation if the condition is mild; and a zero-percent evaluation if 
the condition is postoperative, cured. These criteria require rating 
agencies to make a subjective determination as to whether the condition 
is ``mild,'' ``moderate,'' or ``severe.'' In addition, they raise 
questions as to whether any neurologic manifestation, regardless of 
severity, warrants a 60-percent evaluation, or whether intervertebral 
disc syndrome with neurologic manifestations may be evaluated higher or 
lower than 60 percent.
    In order to clarify the evaluation criteria, and thereby assure 
more consistent evaluations, we propose to eliminate subjective terms 
such as mild, moderate, and severe in favor of more objective criteria, 
and to provide specific instructions for evaluating both the orthopedic 
and neurologic manifestations of intervertebral disc syndrome. We also 
propose that these criteria apply both pre-operatively and post-
operatively.
    We propose to evaluate intervertebral disc syndromes that are 
primarily disabling because of periods of acute symptoms that require 
bed rest according to the cumulative amount of time over the course of 
a year that the patient is incapacitated, i.e., requires bed rest and 
treatment by a physician. Incapacitating episodes of at least six weeks 
total duration per year would be evaluated at 60 percent; 
incapacitating episodes of at least four but less than six weeks total 
duration per year at 40 percent; incapacitating episodes of at least 
two but less than four weeks total duration per year at 20 percent; and 
incapacitating episodes of at least one but less than two weeks total 
duration per year at 10 percent. Evaluating the condition in this 
manner will assure more consistent evaluations when the disc disease is 
episodic because percentage evaluations will be assigned based on an 
objective standard--yearly cumulative duration of incapacitating 
episodes--rather than a subjective assessment of whether the condition 
is mild, moderate, or severe.
    We propose to evaluate intervertebral disc syndromes that are 
disabling primarily because of chronic orthopedic manifestations (e.g., 
painful muscle spasm or limitation of motion), chronic neurologic 
manifestations (e.g., footdrop, muscle atrophy, or sensory loss), or a 
combination of both, by assigning separate evaluations for the 
orthopedic and neurologic manifestations, using DC 5293 hyphenated with 
the appropriate orthopedic or neurologic code. Assigning separate 
evaluations for the orthopedic and neurologic manifestations will 
assure that evaluations accurately reflect the actual disabling effects 
of the condition, and that neurologic manifestations in particular will 
not be over-or under-evaluated by being considered categorically rather 
than individually.
    When an intervertebral disc syndrome is disabling both because of 
incapacitating episodes and persistent orthopedic or neurologic 
manifestations, we propose that the rating agency use whichever 
alternative method of evaluation results in a higher evaluation.
    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),

[[Page 8205]]

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: November 5, 1996.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 4, subpart B, 
is proposed to be amended as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

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

    Authority: 38 U.S.C. 1155.

    2. Section 4.71a is amended by revising diagnostic code 5293 and 
adding an authority citation at the end of the section to read as 
follows:


Sec. 4.71a  Schedule of ratings--musculoskeletal system.

The Spine

* * * * *
    5293 Intervertebral disc syndrome:
    Evaluate intervertebral disc syndrome (preoperatively or 
postoperatively) based on either its chronic manifestations or on the 
annual duration of incapacitating episodes, whichever results in a 
higher evaluation.

With incapacitating episodes having a total duration of at least 
six weeks per year...................................................60
With incapacitating episodes having a total duration of at least 
four weeks but less than six weeks per year..........................40
With incapacitating episodes having a total duration of at least 
two weeks but less than four weeks per year..........................20
With incapacitating episodes having a total duration of at least 
one week but less than two weeks per year............................10

    Note (1): An incapacitating episode of intervertebral disc syndrome 
means a period of acute symptoms (orthopedic, neurologic, or both), 
requiring bed rest and treatment by a physician.
    Note (2): When evaluating on the basis of chronic manifestations, 
evaluate orthopedic manifestations, such as limitation of motion of 
lumbar or cervical spine, paravertebral muscle spasm, or scoliosis of 
the spine, under DC 5293, using evaluation criteria for an appropriate 
diagnostic code; evaluate neurologic manifestations, such as footdrop, 
muscle atrophy, sensory loss, or neurogenic bladder separately under DC 
5293, using evaluation criteria for an appropriate diagnostic code.
* * * * *
    (Authority: 38 U.S.C. 1155.)

[FR Doc. 97-4415 Filed 2-21-97; 8:45 am]
BILLING CODE 8320-01-P