[Federal Register Volume 64, Number 90 (Tuesday, May 11, 1999)]
[Rules and Regulations]
[Pages 25202-25210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11768]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AF22
Schedule for Rating Disabilities; Diseases of the Ear and Other
Sense Organs
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends that portion of the Department of
Veterans Affairs (VA) Schedule for Rating Disabilities that addresses
the ear and other sense organs. The intended effect of this action is
to update this portion of the rating schedule to ensure that it uses
current medical terminology and unambiguous criteria, and that it
reflects medical advances that have occurred since the last review.
DATES: Effective Dates: This amendment is effective June 10, 1999.
FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,
Regulations Staff (211B), Compensation and Pension Service, Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Ave., NW, Washington DC 20420, (202) 273-7230.
SUPPLEMENTARY INFORMATION: As part of its review of the Schedule for
Rating Disabilities, VA published a proposal to amend that portion of
the Schedule pertaining to the ear and other sense organs in the
Federal Register of April 12, 1994 (59 FR 17295-17301). Interested
persons were invited to submit written comments on or before June 13,
1994. We received comments from the Veterans of Foreign Wars, Disabled
American Veterans, and three individuals.
The evaluation of hearing impairment in the previous rating
schedule was based on two criteria: the results of a puretone
audiometry test and the results of a controlled speech discrimination
test. Based on the results of these tests, one of two tables was used
to determine a Roman numeral designation for hearing impairment: Table
VI, where the number is determined by combining the percent of speech
discrimination with the average puretone decibel (dB) loss, and Table
VIa, which is based solely on average puretone dB loss, and was used
only if language difficulties or inconsistent speech audiometric scores
made use of Table VI inappropriate. The Roman numeral designations
determined for each ear using Table VI or VIa were then combined using
Table VII, in order to determine the percentage evaluation for hearing
impairment. We proposed no change in this method of evaluation and
included information about it in Sec. 4.85, ``Evaluation of hearing
impairment'' and Sec. 4.86, ``Auditory acuity, hearing aids, and
evidence other than puretone audiometry and controlled speech.'' In
response to several comments we received about the method of
evaluation, and requesting more specific details, we have reorganized
Secs. 4.85 and 4.86 for the sake of clarity, as explained in detail
below.
One commenter stated that nowhere is VA's authority to use the
specific hearing tests it uses spelled out in the regulations. We agree
that the tests required were not specified in the rating schedule and
have therefore stated in Sec. 4.85(a) that the Maryland CNC speech
discrimination test and the puretone audiometry test are to be used for
evaluating hearing impairment. The use of the Maryland CNC speech
discrimination test and the puretone threshold average determined by an
audiometry test was established by a regulation on the evaluation of
hearing loss published in the Federal Register on November 18, 1987 (52
FR 44117). That regulation changed the method of evaluating hearing
loss based on a VA study on hearing loss testing methods and assistive
hearing devices that had been requested by Congress in 1984. The
results of the study were published in a VA report titled ``Report on
Hearing Loss Study'' that was issued on January 6, 1986. Although the
regulation revised the rating schedule to incorporate rating tables
based on the new method of evaluation, it did not add to the schedule
specific details about the new testing methods.
One commenter stated that if only VA examinations or authorized
audiological clinic examinations are to be used, this should be stated
in the proposed regulation. Based on this comment, we have stated in
Sec. 4.85(a) that an examination for hearing impairment for VA purposes
must be conducted by a state-licensed audiologist. This will help to
assure that examinations of veterans will be accurate and consistent
because state licensing agencies require that audiologists meet
specific educational and training requirements and pass a national
competency examination.
Two commenters noted that the meaning of average puretone decibel
loss is not explained in the rating schedule. We agree that this
information should be included in the rating schedule and have added an
explanation in Sec. 4.85(d). For VA purposes, the average puretone
decibel loss means a four-frequency puretone threshold average obtained
by adding the puretone thresholds at four specified frequencies'1000,
2000, 3000, and 4000 Hertz and dividing by four. This method and the
reasons for its selection were explained in the 1987 regulation
referred to above. Current terminology is ``puretone threshold
average'' rather than ``average puretone decibel loss,'' and we have
used this language in Sec. 4.85 and have revised the labels in Tables
VI and VIa. For clarity, we have also titled Table VIa, untitled in the
proposed rule, ``Numeric Designation of Hearing Impairment Based Only
on Puretone Threshold Average'' and retitled Table VI, titled ``Numeric
Designation of Hearing Impairment'' in the proposed rule, ``Numeric
Designation of Hearing Impairment Based on Puretone Threshold Average
and Speech Discrimination.'' In the proposed rule we inadvertently
placed
[[Page 25203]]
the numeric tables in Sec. 4.86, we have moved them to Sec. 4.85(h) as
the more appropriate location. We removed the examples from Sec. 4.85
because the directions for using the tables are clear enough without
them.
We also proposed to add two new provisions for evaluating veterans
with certain patterns of hearing impairment that cannot always be
accurately assessed under Sec. 4.85, because the speech discrimination
test may not reflect the severity of communicative functioning these
veterans experience. These veterans were identified in review studies
carried out by the Veterans Health Administration's (VHA's) Audiology
and Speech Pathology Service in 1991. One of the new provisions,
proposed as Sec. 4.85(d), stated that if puretone thresholds in any
four of the five frequencies of 500, 1000, 2000, 3000, and 4000 Hertz
are 55 dB's or more, an evaluation could be based either on Table VI or
Table VIa, whichever results in a higher evaluation. (This provision
has been redesignated Sec. 4.86(a), as discussed below.)
One commenter, although offering no rationale for the comment,
suggested that the level of hearing loss for this provision should be
50 dB instead of 55.
To conduct a speech discrimination test in someone with hearing
impairment, the sounds must be amplified sufficiently for the
individual to hear the words. The greater the dB threshold level, the
higher the level of amplification that is needed. Up to a 50 dB
threshold level, amplification sufficient to conduct a speech
discrimination test is feasible. However, with a 55 dB threshold
level--the level at which speech becomes essentially inaudible--the
high level of amplification needed to attempt to conduct a speech
discrimination test would be painful to most people, and speech
discrimination tests may therefore not be possible or reliable. The new
provision will allow evaluation of hearing impairment in such
individuals on the basis of puretone threshold average only, if that
results in a higher evaluation than one based on a combination of
speech discrimination and puretone threshold average.
The same commenter suggested applying proposed Sec. 4.85(d) if
three of the five specified frequencies have a threshold of 55 dB or
more because the frequencies of 2000 and above are the most important
frequencies for speech discrimination, and precipitous hearing
impairment in the high frequencies is extremely handicapping in the
work environment.
The frequencies selected and the dB threshold were chosen because
VHA, through their clinical studies, found that speech discrimination
studies are quite variable in veterans with a 55 dB threshold in four
or more frequencies and may not accurately reflect the true extent of
disability. Also based on the results of their studies, they did not
extend the recommendation for an alternative method of evaluation to
those with that extent of hearing impairment at only three frequencies.
In view of VHA's recommendations, based on tests conducted on 1565
individuals, we make no change based on this comment.
The second provision we proposed to add (as Sec. 4.85(e)) was to
direct the rating agency to choose the Roman numeral designation
derived from either table VI or VIa, whichever is higher, when puretone
thresholds are 30 dB or less at frequencies of 1000 Hertz and below,
and are 70 dB or more at 2000 Hertz. It also directed the rating agency
to elevate that Roman numeral designation one level. This provision was
meant to compensate for a pattern of hearing impairment that is an
extreme handicap in the presence of any environmental noise. VHA found
that when this pattern of impairment is present, a speech
discrimination test conducted in a quiet room with amplification of the
sounds does not always reflect the extent of impairment experienced in
the ordinary environment. This provision allows evaluation of hearing
impairment in these individuals on puretone average only, if that
results in a higher evaluation. (This provision has been redesignated
Sec. 4.86(b), as discussed below.)
One commenter said it appears in proposed Sec. 4.85(d) and (e) that
500 Hertz is one of the frequencies to be used in the puretone average,
although when Sec. 4.85 was revised in 1987, the supplementary
information stated that puretone frequencies at 1000, 2000, 3000, and
4000 Hertz were to be used to determine the puretone threshold average.
The commenter also said that the use of four frequencies in some
circumstances and of five or more in others requires an explanation of
why such a methodology does not give rise to disparate treatment.
In the proposed rule, the four frequency puretone threshold average
was the basis of the evaluation for hearing impairment in all cases,
and the 500 Hertz frequency was to be used only to help select the
veterans to whom the special provisions would be applied. However, in
order to remove any suggestion of disparate treatment, and after
consultation with VHA, we removed the 500 Hertz stipulations from the
two proposed special provisions. VHA assured us that this change would
not affect the need for the special provisions and would not affect the
disability ratings of any group of veterans.
One commenter suggested that the language for evaluation parallel
the language of 38 CFR 3.385.
The purpose of Sec. 3.385, ``Disability due to impaired hearing,''
is to explain the basis for determining whether impaired hearing is a
disability, which is different from the purpose of Sec. 4.85, which is
to explain how to evaluate hearing impairment, once it has been
determined to be a disability, for purposes of disability compensation.
Since these regulations serve different purposes, and different
frequencies are involved, the use of parallel language is neither
necessary nor feasible.
When the puretone threshold average is 105 dB or more, tables VI
and VIa require a numeric designation of XI, the highest level of
evaluation. This is unchanged from the previous schedule. One commenter
stated that a loss of greater than 92 dB, rather than 105 dB, would
result in total impairment in everyone, according to the American
Academy of Otolaryngology and Otolaryngology Guide for the Evaluation
of Hearing Impairment.
Methods of measuring hearing impairment and assessing disability
based on the results vary from one organization to another, making
direct comparisons infeasible. Not all organizations use the same range
of frequencies, for example, to determine a puretone threshold average.
While VA uses 1000, 2000, 3000, and 4000 Hertz for evaluation, based on
the results of the VA study referred to above, the American Medical
Association (AMA), in its ``Guides to the Evaluation of Permanent
Impairment'' 4th ed., 1993, uses 500, 1000, 2000, and 3000 Hertz. The
National Institute for Occupational Safety and Health proposed using
puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, as has the
American Speech and Hearing Association Task Force, and their rationale
is that these frequencies are most sensitive to discrimination ability
in quiet and in noise. Not all organizations use a speech
discrimination test in evaluating hearing impairment; the AMA, for
example, does not. The guide referred to by the commenter is no longer
in existence, but the AMA Guides states that the criteria it uses are
adapted from the 1979 Academy of Otolaryngology-Head and Neck Surgery
Guide. The AMA Guides considers impairment of hearing to be total if
the average of the four puretone
[[Page 25204]]
frequencies they use is over 91.7 dB. However, total impairment of
hearing under their system does not mean that a 100-percent disability
evaluation is assigned. Under the AMA disability evaluation system,
each disability is considered in terms of its effect on the whole
person. The evaluation they would assign for a bilateral puretone
threshold of 91.7 dB (in workers' compensation claims, for example) is
35 percent, not 100 percent. With a unilateral puretone threshold of
91.7 dB (with the other ear normal), the AMA system would evaluate
monaural hearing impairment at 100 percent, and binaural hearing
impairment at approximately 17 percent, but the actual evaluation they
would assign is six percent. Thus, direct comparisons of different
systems of evaluating disability due to hearing loss are not possible,
and we make no change based on this comment.
One commenter pointed out that Sec. 4.86 in the previous schedule
stated that evaluations are intended to make proper allowance for
improvement by hearing aids and that examination to determine the
improvement is not necessary. The commenter further stated that because
Table VI appears to be unchanged in the proposed regulations, it would
appear that Table VI continues to be built on the assumption of
improvement with hearing aids and that performing audiology tests with
hearing aids or adjusting the rating values based on an assumption of
improvement with hearing aids violates the policy of determining
impairment of body function without the use of any prosthetic device.
We are unaware of any general policy which prohibits consideration
of the effect of a prosthetic device in determining the degree of
impairment. In fact, there is a standard method for measuring best
corrected vision, and the rating schedule requires that examinations
for visual impairment include corrected, as well as uncorrected, visual
acuity. However, there is no standard procedure for measuring best
corrected hearing, and the amended instruction (Sec. 4.85(a)) states
that examinations for hearing impairment will be conducted without the
use of hearing aids. Section 4.85(a) is clear enough that, in order to
avoid confusion, we have removed the language in proposed Sec. 4.86(b)
stating that the evaluations are designed to measure the best residual
uncorrected hearing and that examinations comparing hearing with and
without hearing aids are unnecessary. VHA consultants indicated that it
is well accepted in the audiological literature that the better the
speech discrimination score, the better the overall result with hearing
aids, but they also stated that the language in the former rating
schedule about anticipated improvement by a hearing aid did not in any
way affect the method of evaluation or disability ratings themselves,
and that removal of that language would also have no effect on the
method of evaluation or on disability ratings.
The previous Sec. 4.87 and proposed Sec. 4.86(a) defined
``impairment of auditory acuity,'' for VA purposes. However, that term
is not used elsewhere in the rating schedule, although the terms
``hearing impairment,'' ``hearing loss,'' and ``deafness'' are used. We
have therefore removed Sec. 4.86(a) as unnecessary and have, for the
sake of clarity, used ``hearing impairment'' in all other parts of the
rating schedule to designate a loss of hearing except where the
statutory terms ``deafness'' or ``hearing loss'' are required (by 38
U.S.C. 1114(k)).
Former section 4.86a, ``Evidence other than puretone audiometry and
controlled speech,'' explained that where claims contain evidence which
predates the use of puretone audiometry and controlled speech,
determination of service connection will be evaluated under the
regulations in effect on December 17, 1987. We proposed to retain this
instruction in Sec. 4.86(c). One commenter suggested that this is not a
rating regulation and that it properly belongs in Part 3 of 38 CFR.
We agree that regulations regarding service connection are not
appropriate in the rating schedule, which is used for the evaluation of
disabilities, and we have removed Sec. 4.86(c). This completes the
removal of the contents of proposed Sec. 4.86. We have, however,
retained Sec. 4.86, retitled it ``Exceptional patterns of hearing
impairment,'' and added paragraphs (a) and (b) for the two provisions
that were proposed as Sec. 4.85(d) and (e). This change better
highlights the unusual aspects of evaluating these uncommon patterns of
hearing impairment.
The previous schedule did not provide specific instructions on
evaluating bilateral hearing impairment when hearing impairment is
service-connected in only one ear. One commenter suggested that we add
a note indicating that a non-service-connected ear is to be treated as
having normal hearing.
We concur and have added Sec. 4.85(f) to specify that a non-
service-connected ear will be assigned a Roman numeral designation of
I, subject to the provisions of Sec. 3.383, ``Special consideration for
paired organs and extremities.'' This is consistent with the manner in
which we evaluate other paired organs, where only one of the pair is
service-connected (38 CFR 4.73 (muscle injuries) and 38 CFR 4.124a
(diseases of the cranial and peripheral nerves)).
One commenter stated that the regulation should include a specific
effective date and should state whether the regulatory change
constitutes a liberalizing law or issue.
The effective date of the regulation will be 30 days after
publication of this final rule in the Federal Register. The revisions
of the sections addressing ear and other sense organs are part of the
overall revision of the rating schedule based on medical advances,
etc., rather than representing liberalizing interpretations of
regulations. We have explained above the reasons for the provisions of
Sec. 4.86. The preamble erred in discussing these provisions as
liberalizations. Rather, they are an attempt to assure more equitable
evaluations in a small number of veterans with unusual patterns of
hearing impairment.
Special monthly compensation (SMC) is a benefit authorized by 38
U.S.C. 1114 that is payable in addition to the compensation payable for
specific disabilities, or combinations of disabilities, based upon the
extent of impairment under the Schedule for Rating Disabilities. We
proposed removing the footnote regarding SMC in Table VII in favor of a
single note at the end of Sec. 4.85 directing the rating agency to
refer to Sec. 3.350 (``Special monthly compensation ratings'') to
determine whether a claimant is entitled to SMC. One commenter
suggested that we retain this footnote.
In response to the comment, and for the sake of consistency with
references to SMC that we have made in other revised sections of the
rating schedule, we have added this information as Sec. 4.85(g) and
also restored a footnote to Table VII, Percentage Evaluations for
Hearing Impairment, indicating that the rating agency is to review for
entitlement to special monthly compensation under Sec. 3.350. (We
proposed to put the information now in Sec. 4.85(g) in a footnote
following Sec. 4.86, but moved it to Sec. 4.85 instead to remove
ambiguity about whether it referred only to the provisions of Sec. 4.86
or to all hearing evaluations.) A single footnote to Table VII is
adequate because we have deleted all but one diagnostic code (DC),
6100, for hearing impairment, since it is unnecessary for any practical
purpose to have multiple diagnostic codes to indicate various
evaluation
[[Page 25205]]
levels of the same disability. SMC may be warranted not only when
hearing impairment is evaluated at 100 percent, but also for various
levels of deafness (or hearing impairment) when they occur in
combination with blindness, and the single footnote will assure that
SMC is always considered when there is hearing impairment. We believe
that the combination of the footnote and Sec. 4.85(g) is the most
effective method for ensuring complete review for special monthly
compensation.
38 U.S.C. 1114(k) authorizes payment of SMC if there is absence of
air and bone conduction in both ears. The implementing regulation, 38
CFR 3.350(a)(5), states that deafness of both ears, having absence of
air and bone conduction, will be held to exist when bilateral hearing
loss is equal to or greater than the minimum bilateral hearing loss
required for a maximum rating (100 percent) under the schedule. One
commenter suggested that we add a footnote to the 80- and 90-percent
levels indicating entitlement to special monthly compensation, because
these evaluations constitute deafness, for all practical purposes.
We do not concur. Complete loss of air and bone conduction would
result in no response on audiometry, even at 105 dB, according to VHA
consultants, and would therefore warrant a 100-percent evaluation. If
there is a response on audiometry, which would necessarily be the case
to establish an 80- or 90-percent evaluation for hearing impairment,
there is not complete absence of air and bone conduction, and the
hearing impairment in those cases would not meet the requirements of 38
U.S.C. 1114(k). Such a footnote would therefore be contrary to
statutory requirements.
The previous schedule listed mastoiditis under its own diagnostic
code (6206), with evaluation based on suppuration and impairment of
hearing. We proposed to combine it with suppurative otitis media under
DC 6200. The previous schedule provided neither diagnostic code nor
evaluation criteria for cholesteatoma; raters have generally evaluated
it analogous to otitis media. We also proposed to include cholesteatoma
under DC 6200, because the three conditions are closely related, and
their manifestations may be essentially the same. One commenter
suggested that we assign separate diagnostic codes for cholesteatoma
and mastoiditis because the proposed rule is ambiguous as to whether
one of these conditions must accompany otitis media to assign a 10-
percent evaluation and because mastoiditis and cholesteatoma can exist
without forming pus (suppuration).
Chronic otitis media, mastoiditis, and cholesteatoma may exist with
or without suppuration. However, two or more of these conditions, all
of which are interrelated, commonly coexist, and their manifestations
may be very similar. For example, chronic mastoiditis may develop
simultaneously with otitis media or may occur as a later complication.
Therefore, a single diagnostic code and set of evaluation criteria for
all three conditions is appropriate, and we have revised the title of
DC 6200 to clarify that it can apply to any of these conditions. We
have also added aural polyps to the criteria for a 10-percent
evaluation because they are a possible consequence of chronic otitis
media. We have also expanded the note directing that hearing impairment
be evaluated separately to include a list of other possible
complications--labyrinthitis, tinnitus, facial nerve paralysis, and
bone loss of skull--that would also warrant separate evaluations. These
criteria better encompass the usual range of impairments that may
develop in this group of conditions. Placing these related conditions
under a single diagnostic code will help assure that the same
impairment is not evaluated twice when more than one of these
conditions is present in an individual.
The previous schedule addressed otitis interna under DC 6203 and
evaluated it based on the extent of hearing loss. We proposed to
eliminate this diagnostic code because otitis interna is an archaic
name for a general ear infection condition which is more accurately
classified as a peripheral vestibular disorder, DC 6204. One commenter
suggested that we provide instructions under peripheral vestibular
disorders explaining how to evaluate otitis interna. We do not concur.
Otitis interna is an obsolete term, and conditions which it formerly
encompassed are best evaluated under the criteria for peripheral
vestibular disorders.
The previous rating schedule provided three evaluation levels for
Meniere's syndrome, DC 6205, based on the severity and frequency of
attacks. Among other things, we proposed to provide objective measures
for the frequency of the attacks. One commenter stated that the
prodromal signs, the duration of the episode, and the recovery period
for an attack may last as long as ten days, and therefore suggested
that the frequency of attacks proposed for the 100-percent evaluation
(more than once weekly) and 60-percent evaluation (once a week or less)
was too stringent. The commenter also said that ``attacks occurring
once a week or less'' should be better defined.
Attacks of vertigo in Meniere's syndrome appear suddenly and last
from a few to 24 hours (Boies Fundamentals of Otolaryngology, Sixth
Edition, W.B. Saunders Company, 1989, p.139, and The Merck Manual of
Diagnosis and Therapy, Merck Research Laboratories, 1992, p. 2336).
Since the attacks of vertigo (often accompanied by nausea, vomiting,
hearing impairment, and tinnitus) generally subside within 24 hours,
requiring attacks more than once weekly for a 100-percent level, and
one to four times a month for a 60-percent level, are reasonable
requirements, in our judgment, that are equivalent to, but more
objective than, the requirements of ``frequent and typical,'' and
``less frequent'' in the previous schedule. In response to the comment,
however, we better defined the criteria by changing the requirements
for a 60-percent evaluation from ``deafness with attacks of vertigo and
cerebellar gait occurring once a week or less'' to ``hearing impairment
with attacks of vertigo and cerebellar gait occurring from one to four
times a month, with or without tinnitus,'' and by changing the
requirements for a 30-percent evaluation from ``deafness with
occasional vertigo'' to ``hearing impairment with vertigo less than
once a month, with or without tinnitus.'' Tinnitus is commonly, but not
universally, present in Meniere's syndrome. We included the phrase
``with or without tinnitus'' in these criteria to emphasize that the
overall evaluation of Meniere's syndrome is the same whether or not
tinnitus is present. This will avoid the assignment of a separate
evaluation for tinnitus when evaluating the syndrome under DC 6205, and
at the same time, indicate that the absence of tinnitus in certain
cases has no effect on the evaluation to be assigned under DC 6205.
We proposed to retain ``deafness'' as one of the criteria at the
100-percent evaluation level of Meniere's syndrome (DC 6205). One
commenter suggested that there be a footnote appended to the 100-
percent level, signaling that entitlement to Special Monthly
Compensation is payable.
We do not concur. A particular level of impaired hearing is not a
requirement for the 100-percent level for Meniere's syndrome. The term
``deafness'' was meant to indicate any level of hearing impairment, and
we have changed ``deafness'' to ``hearing impairment'' in the criteria
for Meniere's syndrome to make that clear. The requirements for a 100-
percent evaluation of Meniere's syndrome are met if there is any level
[[Page 25206]]
of hearing impairment, and vertigo and cerebellar gait occur more than
once weekly. 38 CFR 3.350(a)(5), on the other hand, requires an absence
of air and bone conduction and hearing loss equal to or greater than
the minimum bilateral hearing loss required for a 100-percent rating,
for entitlement to SMC on the basis of hearing impairment. For this
reason, a footnote referring to entitlement to SMC is not appropriate
here, and Sec. 4.85(g) and the footnote to Table VII will assure
consideration of SMC in any case of hearing impairment.
Another commenter suggested that we add a note under Meniere's
syndrome instructing the rating agency that hearing impairment will be
rated separately and combined. We did not adopt this suggestion because
the evaluation criteria and percentages are based on all of the
manifestations of Meniere's syndrome, with attacks often consisting of
hearing impairment, vertigo, tinnitus, and staggering gait. Any of the
symptoms may be intermittent. It would be contrary to 38 CFR 4.14
(Avoidance of pyramiding), which prohibits the evaluation of the same
manifestation under different diagnoses, to evaluate hearing impairment
separately, and also use it to support an evaluation under DC 6205.
However, we have added a note stating that Meniere's syndrome may be
evaluated either under DC 6205 or by separately evaluating vertigo (as
a peripheral vestibular disorder), hearing impairment, and tinnitus,
whichever method results in a higher overall evaluation. The note also
prohibits combining an evaluation for hearing impairment, tinnitus, or
vertigo with an evaluation under DC 6205.
The previous schedule provided a minimum 10-percent evaluation for
malignant neoplasms of the ear, DC 6208. We proposed to delete the
minimum evaluation. One commenter suggested that we reinstate the
minimum 10-percent evaluation because it was meant to compensate for
skull loss.
In our judgment, loss of function is the most accurate and
equitable basis for evaluating the residuals of this condition. If a
malignant neoplasm results in skull loss, the skull loss would be
separately evaluated under the skeletal system (DC 5296).
The previous rating schedule provided a 10-percent evaluation for
tinnitus, DC 6260, with the criteria being: ``persistent as a symptom
of head injury, concussion or acoustic trauma.'' We proposed to remove
the requirement that tinnitus be a symptom of head injury, concussion
or acoustic trauma and that it be persistent and instead provide a 10-
percent evaluation for recurrent tinnitus. One commenter suggested that
we add a note following tinnitus instructing that the evaluation for
tinnitus be combined with ratings for hearing impairment, suppurative
otitis media, and peripheral vestibular disorder.
We agree and have added a note under DC 6260 stating that a
separate evaluation for tinnitus under DC 6260 may be combined with an
evaluation under DC's 6100, 6200, 6204, or other diagnostic code except
when tinnitus supports an evaluation under one of those diagnostic
codes.
We added the word ``nonsuppurative'' to the proposed title of DC
6201, ``chronic nonsuppurative otitis media with effusion (serous
otitis media),'' to better distinguish it from DC 6200, ``chronic
suppurative otitis media, mastoiditis, or cholesteatoma.'' We also made
additional nonsubstantive changes throughout this final rule for the
sake of clarity and succinctness.
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, 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 action has been reviewed by the Office of
Management and Budget under Executive Order 12866.
The Catalog of Federal Domestic Assistance numbers are 64.104 and
64.109.
List of Subjects in 38 CFR Part 4
Disability benefits, Individuals with disabilities, Pensions,
Veterans.
Approved: January 8, 1999.
Togo D. West, Jr.,
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 B--Disability Ratings
2. Section 4.85 is revised to read as follows:
Sec. 4.85 Evaluation of hearing impairment.
(a) An examination for hearing impairment for VA purposes must be
conducted by a state-licensed audiologist and must include a controlled
speech discrimination test (Maryland CNC) and a puretone audiometry
test. Examinations will be conducted without the use of hearing aids.
(b) Table VI, ``Numeric Designation of Hearing Impairment Based on
Puretone Threshold Average and Speech Discrimination,'' is used to
determine a Roman numeral designation (I through XI) for hearing
impairment based on a combination of the percent of speech
discrimination (horizontal rows) and the puretone threshold average
(vertical columns). The Roman numeral designation is located at the
point where the percentage of speech discrimination and puretone
threshold average intersect.
(c) Table VIa, ``Numeric Designation of Hearing Impairment Based
Only on Puretone Threshold Average,'' is used to determine a Roman
numeral designation (I through XI) for hearing impairment based only on
the puretone threshold average. Table VIa will be used when the
examiner certifies that use of the speech discrimination test is not
appropriate because of language difficulties, inconsistent speech
discrimination scores, etc., or when indicated under the provisions of
Sec. 4.86.
(d) ``Puretone threshold average,'' as used in Tables VI and VIa,
is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000
Hertz, divided by four. This average is used in all cases (including
those in Sec. 4.86) to determine the Roman numeral designation for
hearing impairment from Table VI or VIa.
(e) Table VII, ``Percentage Evaluations for Hearing Impairment,''
is used to determine the percentage evaluation by combining the Roman
numeral designations for hearing impairment of each ear. The horizontal
rows represent the ear having the better hearing and the vertical
columns the ear having the poorer hearing. The percentage evaluation is
located at the point where the row and column intersect.
(f) If impaired hearing is service-connected in only one ear, in
order to determine the percentage evaluation from Table VII, the non-
service-connected ear will be assigned a Roman Numeral designation for
hearing
[[Page 25207]]
impairment of I, subject to the provisions of Sec. 3.383 of this
chapter.
(g) When evaluating any claim for impaired hearing, refer to
Sec. 3.350 of this chapter to determine whether the veteran may be
entitled to special monthly compensation due either to deafness, or to
deafness in combination with other specified disabilities.
(h) Numeric tables VI, VIA*, and VII.
BILLING CODE 8320-01-P
[[Page 25208]]
[GRAPHIC] [TIFF OMITTED] TR11MY99.005
[[Page 25209]]
[GRAPHIC] [TIFF OMITTED] TR11MY99.006
BILLING CODE 8320-01-C
3. Section 4.86 is revised to read as follows:
Sec. 4.86 Exceptional patterns of hearing impairment.
(a) When the puretone threshold at each of the four specified
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more,
the rating specialist will determine the Roman numeral designation for
hearing impairment from either Table VI or Table VIa, whichever results
in the higher numeral. Each ear will be evaluated separately.
(b) When the puretone threshold is 30 decibels or less at 1000
Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist
will determine the Roman numeral designation for hearing impairment
from either Table VI or Table VIa, whichever results in the higher
numeral. That numeral will then be elevated to the next higher Roman
numeral. Each ear will be evaluated separately.
(Authority: 38 U.S.C. 1155)
Sec. 4.86a [Removed]
4. Section 4.86a is removed.
5. Section 4.87 is revised to read as follows:
[[Page 25210]]
Sec. 4.87 Schedule of ratings--ear.
Rating
DISEASES OF THE EAR
6200 Chronic suppurative otitis media, mastoiditis, or
cholesteatoma (or any combination):
During suppuration, or with aural polyps................... 10
Note: Evaluate hearing impairment, and complications such as
labyrinthitis, tinnitus, facial nerve paralysis, or bone loss
of skull, separately.
6201 Chronic nonsuppurative otitis media with effusion (serous
otitis media):
Rate hearing impairment
6202 Otosclerosis:
Rate hearing impairment
6204 Peripheral vestibular disorders:
Dizziness and occasional staggering........................ 30
Occasional dizziness....................................... 10
Note: Objective findings supporting the diagnosis of vestibular
disequilibrium are required before a compensable evaluation can
be assigned under this code. Hearing impairment or suppuration
shall be separately rated and combined.
6205 Meniere's syndrome (endolymphatic hydrops):
Hearing impairment with attacks of vertigo and cerebellar 100
gait occurring more than once weekly, with or without
tinnitus..................................................
Hearing impairment with attacks of vertigo and cerebellar 60
gait occurring from one to four times a month, with or
without tinnitus..........................................
Hearing impairment with vertigo less than once a month, 30
with or without tinnitus..................................
Note: Evaluate Meniere's syndrome either under these criteria
or by separately evaluating vertigo (as a peripheral vestibular
disorder), hearing impairment, and tinnitus, whichever method
results in a higher overall evaluation. But do not combine an
evaluation for hearing impairment, tinnitus, or vertigo with an
evaluation under diagnostic code 6205.
6207 Loss of auricle:
Complete loss of both...................................... 50
Complete loss of one....................................... 30
Deformity of one, with loss of one-third or more of the 10
substance.................................................
6208 Malignant neoplasm of the ear (other than skin only)..... 100
Note: A rating of 100 percent shall continue beyond the
cessation of any surgical, radiation treatment, 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 on 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.
6209 Benign neoplasms of the ear (other than skin only):
Rate on impairment of function.
6210 Chronic otitis externa:
Swelling, dry and scaly or serous discharge, and itching 10
requiring frequent and prolonged treatment................
6211 Tympanic membrane, perforation of........................ 0
6260 Tinnitus, recurrent...................................... 10
Note: A separate evaluation for tinnitus may be combined with
an evaluation under diagnostic codes 6100, 6200, 6204, or other
diagnostic code, except when tinnitus supports an evaluation
under one of those diagnostic codes.
(Authority: 38 U.S.C. 1155)
6. Section 4.87a is revised to read as follows:
Sec. 4.87a Schedule of ratings--other sense organs.
Rating
6275 Sense of smell, complete loss............................ 10
6276 Sense of taste, complete loss............................ 10
Note: Evaluation will be assigned under diagnostic codes 6275
or 6276 only if there is an anatomical or pathological basis
for the condition.
(Authority: 38 U.S.C. 1155)
Sec. 4.87b [Removed]
7. Section 4.87b is removed.
[FR Doc. 99-11768 Filed 5-10-99; 8:45 am]
BILLING CODE 8320-01-P