[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] ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 4 RIN 2900-AI22 Intervertebral Disc Syndrome AGENCY: Department of Veterans Affairs. ACTION: Proposed rule. ----------------------------------------------------------------------- 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