[Federal Register Volume 67, Number 163 (Thursday, August 22, 2002)]
[Rules and Regulations]
[Pages 54345-54349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21365]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AI22


Schedule for Rating Disabilities; Intervertebral Disc Syndrome

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 
intervertebral disc syndrome. The effect of this action is to clarify 
the criteria to ensure that veterans diagnosed with this condition meet 
uniform criteria and receive consistent evaluations.

DATES: Effective Date: This amendment is effective September 23, 2002.

FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Policy and 
Regulations Staff (211A), 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 a proposal to amend the 
evaluation criteria for diagnostic code 5293, intervertebral disc 
syndrome (IVDS), in the Federal Register of February 24, 1997 (62 FR 
8204). Interested persons were invited to submit written comments on or 
before April 25, 1997. We received comments from the Vietnam Veterans 
of America, Disabled American Veterans, Paralyzed Veterans of America, 
and two concerned individuals.
    We proposed to evaluate IVDS either on its chronic neurologic and 
orthopedic manifestations or on the total annual duration of 
incapacitating episodes, whichever would result in a higher evaluation. 
One commenter recommended that the final rule specify whether there 
could be separate evaluations of the chronic manifestations of each 
spinal segment with IVDS; whether there could be separate evaluations 
based on incapacitating episodes of each spinal segment; and whether 
one spinal segment could be evaluated based on incapacitating episodes 
and another on chronic manifestations.
    In response to this comment, we have added a third note specifying 
that IVDS in separate spinal segments will be separately evaluated as 
long as the effect on each segment is clearly distinct. Inherent in the 
rule is the concept that each affected spinal segment will be evaluated 
under the method that results in the highest overall evaluation. This 
means that affected segments may be separately evaluated based on: (1) 
Incapacitating episodes, (2) chronic manifestations; or (3) one 
affected segment may be evaluated based on incapacitating episodes and 
another segment may be evaluated based on chronic manifestations.
    One commenter stated that acute incapacitating symptoms are 
distinct from chronic symptoms involving

[[Page 54346]]

persistent orthopedic and neurological manifestations because each has 
a different effect on functionality. The commenter stated that IVDS 
should be rated on both acute and chronic symptoms, as long as the 
manifestations are different, and then the ratings should be combined. 
The commenter stated that, if for example a veteran has foot drop as a 
result of IVDS that interferes with earning capacity and also requires 
frequent bed rest due to IVDS that affects earning capacity, the 
veteran has separate disabilities that should be evaluated separately 
and then combined, rather than rating based on the higher of the two 
respective evaluations.
    Acute incapacitating symptoms and chronic symptoms do not 
necessarily represent different manifestations of IVDS. For example, 
IVDS may result in chronic back pain and limitation of motion (a 
chronic orthopedic manifestation); back pain and limitation of motion 
may also cause periods of acute incapacitation. Some individuals 
present predominantly or exclusively with acute symptoms, some with 
chronic symptoms, and some with both. We have provided alternative 
methods of evaluation that allow the use of either the chronic 
manifestations or the total duration of incapacitating episodes for 
evaluation, whichever results in a higher evaluation. But, in our view, 
assigning an evaluation under both methods for functional impairment 
due to IVDS would clearly result in duplicate evaluations of a single 
disability, and therefore would constitute pyramiding, which is 
prohibited by 38 CFR 4.14. We therefore make no change in response to 
this comment.
    Another commenter noted that, in some individuals both IVDS and 
residuals of a vertebral fracture in the same spinal segment are 
service-connected. Diagnostic code 5285, which applies to fractures of 
vertebral bodies, directs that ten percent be added to a spinal 
evaluation if it is less than 60 percent disabling and if there is 
demonstrable deformity of the vertebral body. The commenter suggested 
that the evaluation criteria indicate whether ten percent should be 
added to a rating for IVDS for either chronic residuals or 
incapacitating episodes.
    When vertebral fracture and IVDS are present in the same spinal 
segment, the signs and symptoms of each condition commonly overlap and 
may be inseparable. For example, both conditions may cause pain and 
limitation of motion of the spine and neurologic disability. In such 
cases, a single overall evaluation for the manifestations of both 
disabilities would be assigned, since evaluating the same disability 
under two diagnoses is prohibited (see 38 CFR 4.14). Ten percent would 
be added to the single overall evaluation, if it is less than 60 
percent disabling, when there is demonstrable vertebral deformity, 
because the x-ray finding that is the basis for the added ten percent 
does not duplicate or overlap any other evaluation criteria for either 
condition. This is true whether the evaluation is based on the criteria 
for residuals of vertebral fracture, on the total duration of 
incapacitating episodes of IVDS, or on the chronic orthopedic and 
neurologic manifestations of IVDS. There may be some cases where the 
effects of IVDS and vertebral fracture are clearly separable. When that 
happens, the fracture residuals would be evaluated under diagnostic 
code 5285, with ten percent added for deformity of the vertebral body 
when appropriate, and the IVDS would be evaluated under either 
alternative method, as directed. As with other complex rating issues, 
if the situation arises, raters may request an advisory review opinion 
from the Compensation and Pension Service, but we do not believe this 
situation arises frequently enough to warrant the addition of specific 
regulatory instructions. We therefore make no change based on this 
comment.
    The same commenter asked if bed rest because of spasm warrants the 
added 10 percent.
    The instruction under diagnostic code 5285 specifies that ten 
percent is to be added on the basis of demonstrable vertebral deformity 
due to fracture. Bed rest because of spasm therefore does not warrant 
an additional 10 percent.
    Another commenter recommended that the rule specify whether the 
evaluation for incapacitating episodes is to be compared with the 
neurologic and orthopedic evaluations, once combined pursuant to 38 CFR 
4.25, or with the higher of those evaluations if both are present.
    In response to this comment, we have revised the language under 
diagnostic code 5293 to direct that IVDS be evaluated based either on 
the total duration of incapacitating episodes or on the combination of 
separate evaluations of its chronic orthopedic and neurologic 
manifestations, whichever method results in the higher evaluation.
    One commenter suggested that VA increase the proposed percentage 
evaluations for incapacitating episodes having a total duration of at 
least four to six weeks during the past 12 months because, in the 
commenter's view, veterans who are incapacitated for four to six weeks 
or more over the course of a year are unemployable. Another commenter 
also suggested that the evaluation criteria for IVDS should include a 
100-percent level.
    IVDS is characterized by periods of exacerbation and remission, 
with a tendency toward recovery over time (``Practical Orthopedic 
Medicine'' (Brian Corrigan and G.D. Maitland) 312, 1983). When IVDS 
first appears, with few exceptions, the preferred treatment is 
conservative and includes bed rest of approximately two to four weeks. 
The majority of patients with IVDS recover from the acute symptoms and 
have minimal residual functional or work capacity impairments 
(``Disability Evaluation'' (Stephen L. Demeter, M.D., Gunnar B.J. 
Anderson, M.D., and George M, Smith, M.D.) 288, 1996). The minority in 
whom conservative treatment fails; or who have repeated, disabling 
attacks resulting in prolonged loss of time from work; or who have 
intractable pain or severe or progressive neurological signs, will 
undergo surgery (``Fundamentals of Orthopedics'' (John J. Gartland, 
M.D.) 334, 1987). Only an occasional patient has disabling back pain 
and radicular symptoms after surgery (``Campbell's Operative 
Orthopaedics'') 2114, 1980). Therefore, except for short periods of 
treatment, or periods of convalescence following surgery, IVDS is 
rarely totally disabling.
    The percentage ratings in the schedule ``represent as far as can 
practicably be determined the average impairment in earning capacity 
resulting from such diseases and injuries and their residual conditions 
in civil occupations,'' 38 CFR 4.1; 38 U.S.C. 1155, and, in our view, a 
100 percent evaluation level for IVDS is not warranted. If a veteran 
has permanent neurological or orthopedic residuals following back 
surgery, those residuals could alternatively be rated under other 
appropriate rating formula. Also, an individual who is shown by the 
evidence to be unemployable may be assigned a total evaluation (even 
though the schedule does not provide a 100-percent evaluation) under 
the provisions of 38 CFR 4.16, 4.17, and 4.18. In view of this fact, 
and the information regarding the course and outcome of IVDS after 
treatment, we make no change based on this comment.
    Another commenter suggested that the rule clarify the meaning of 
incapacitating episodes ``per year'' in order to assure that the 
calendar year is not used.
    In response to this comment, we have revised diagnostic code 5293, 
for the sake of clarity, to specify total duration

[[Page 54347]]

of incapacitating symptoms ``during the past 12 months'' rather than 
``per year.''
    We proposed to define the term ``incapacitating episode of 
intervertebral disc syndrome'' to mean a period of acute symptoms 
(orthopedic, neurologic, or both), requiring bed rest prescribed by a 
physician and treatment by a physician. Such treatment by a physician 
would not require a visit to a physician's office or hospital but would 
include telephone consultation with a physician. One commenter 
suggested that we revise the definition to require bed rest 
``prescribed by a physician,'' but eliminate the requirement for 
treatment.
    A physician prescribing bed rest will ordinarily prescribe 
treatment, e.g., analgesics, muscle relaxants, or traction, as well. In 
our view, the requirement for treatment by a physician makes the 
criteria clearer, more objective, and more likely to promote consistent 
evaluations. We therefore make no change in response to this comment. 
However, in order to clarify note (1), we have added ``prescribed by a 
physician'' following ``bed rest.''
    The same commenter suggested that we waive the requirement for 
medical verification of the veteran's previous episodes of 
incapacitating back pain in original claims for IVDS because in such 
cases there would otherwise be a one-year waiting period from the date 
of claim.
    Although in an original compensation claim, an award will be 
effective from the date of claim or the date entitlement arose, 
whichever is later (38 CFR 3.400(b)(2)(i)), nothing in the regulations 
precludes VA from considering medical evidence establishing the total 
duration of incapacitating episodes during the twelve-month period 
preceding the date of claim when evaluating the disability. Existing 
medical records documenting incapacitating episodes of IVDS, as defined 
in the regulation, during the twelve months before the veteran filed a 
claim, would be sufficient to establish the severity of the condition 
without a one-year waiting period. If there are no records of the need 
for bed rest and treatment, by regulation there were no incapacitating 
episodes. Chronic manifestations, on the other hand, could be evaluated 
based on an examination, regardless of whether there were any prior 
incapacitating episodes. We therefore make no change based on this 
comment.
    Another commenter objected to the proposal to evaluate IVDS based 
only on doctor-ordered periods of bed rest and suggested that objective 
findings of IVDS provide a basis for evaluation and should be 
incorporated into the schedular criteria.
    Objective findings, when present, may be used to evaluate IVDS 
based on chronic orthopedic and neurologic manifestations that are 
rating criteria under other diagnostic codes. However, some individuals 
with disabling IVDS exhibit few, if any, objective findings between 
incapacitating episodes. We have therefore provided alternative 
evaluation criteria based on periods of incapacitating episodes. Since 
we will evaluate IVDS under whichever method would result in the higher 
overall evaluation, we make no change based on this comment.
    One commenter assumed that VA will issue companion regulations on 
how to rate each neurologic and orthopedic manifestation of IVDS, since 
chronic symptoms are not assigned evaluations in the proposed 
regulation. The commenter urged that such criteria accurately reflect 
impairment of earning capacity.
    VA plans no separate regulation to address each neurologic and 
orthopedic manifestation of IVDS. There are existing criteria for 
evaluating neurologic and orthopedic disabilities, whether they result 
from IVDS, stroke, or other condition, in the neurologic and 
musculoskeletal portions of the rating schedule. Additional neurologic 
manifestations are addressed under diagnostic codes in the schedule for 
rating genitourinary or digestive systems. For further clarity, we have 
revised note (2) to indicate that the chronic orthopedic and neurologic 
manifestations of IVDS are to be evaluated under the most appropriate 
code or codes. Evaluating disabilities due to IVDS that are identical 
to disabilities of other etiology under the same criteria will assure 
consistency and fairness of evaluations.
    Proposed note (2) stated that, when evaluating IVDS on the basis of 
chronic manifestations, orthopedic manifestations, such as limitation 
of motion of lumbar or cervical spine, paravertebral muscle spasm, or 
scoliosis of the spine, are to be evaluated under diagnostic code 5293 
(IVDS), using evaluation criteria for an appropriate diagnostic code, 
and neurologic manifestations, such as footdrop, muscle atrophy, 
sensory loss, or neurogenic bladder, are to be evaluated separately 
under diagnostic code 5293, using evaluation criteria for an 
appropriate diagnostic code. One commenter said the note does not 
provide clear or objective guidance on the degree of disability to be 
assigned for these manifestations.
    There are so many potential neurologic and orthopedic 
manifestations of IVDS that it would be impractical to incorporate all 
of them into a single set of criteria. It is not only more practical, 
but also consistent with the manner in which VA evaluates other 
conditions that may affect more than one body system, to use evaluation 
criteria for existing orthopedic and neurologic diagnostic codes to 
evaluate the specific manifestations of IVDS. We therefore make no 
change based on this comment.
    The same commenter suggested additional chronic manifestations of 
IVDS that the commenter believes are more objective than the proposed 
criteria.
    The criteria suggested by the commenter would require subjective 
interpretations of terms such as ``light'' or ``heavy'' labor, 
``moderate'' activity, etc. In our view this language is less objective 
than that in the proposed criteria, and we make no change based on this 
comment.
    One commenter asserted that proposed note (2) conflicts with 
Esteban v. Brown, 6 Vet. App. 259 (1994), because it precludes an 
evaluation for the orthopedic manifestations of the spine in addition 
to an evaluation for IVDS under diagnostic code 5293.
    In Esteban, a case that concerned the evaluation of a facial 
injury, with residuals of painful scars, injury to the facial muscles, 
and disfigurement, the Court of Appeals for Veterans Claims (CAVC) 
pointed out that each of the three disabling effects of the injury 
could be separately evaluated unless they constitute the ``same 
disability'' or the ``same manifestation'' under 38 CFR 4.14 (see 
above), or unless any of the diagnostic codes in question state that a 
veteran may not be rated separately for the described conditions. None 
of the three diagnostic codes at issue precluded separate ratings for 
the described conditions and the CAVC stated that the critical element 
in the case was that none of the symptomatology for any one of the 
three conditions is duplicative of, or overlapping with, the 
symptomatology of the other two conditions.
    Diagnostic code 5293 allows for separate evaluations of chronic 
orthopedic and chronic neurologic manifestations of IVDS because these 
manifestations are separate and distinct, and do not constitute the 
``same disability'' or the ``same manifestation'' under 38 CFR 4.14. 
However, virtually all acute incapacitating episodes rated under 
diagnostic code 5293 for IVDS would be the result of chronic orthopedic 
and/or chronic neurologic

[[Page 54348]]

findings. We therefore believe that, if ratings for orthopedic and 
chronic manifestations were combined with a rating for incapacitating 
episodes under diagnostic code 5293, it would result in evaluation of 
the same disability under multiple diagnostic codes, a result which is 
to be avoided per 38 CFR 4.14. Also providing alternative methods for 
evaluating IVDS is consistent with the manner in which we evaluate 
other conditions. For example, lupus erythematosus, diagnostic code 
6350, may be evaluated based either on an overall evaluation under 6350 
or on an evaluation of its residuals under other diagnostic codes in an 
appropriate system or systems, whichever method results in a higher 
evaluation. As a result, there is no conflict with Esteban, and we make 
no change based on this comment.
    One commenter stated that the rule is inconsistent with the manner 
in which IVDS and orthopedic and/or neurologic manifestations were 
rated under the prior version of diagnostic code 5293. According to the 
commenter, prior diagnostic code 5293 allowed the maximum 60-percent 
rating for disability attributable to IVDS plus a separate rating for 
disability affecting other body parts or functions. In support of this 
comment, the commenter cited Bierman v. Brown, 6 Vet. App. 125, 129 
(1994).
    Evaluations of zero to 40 percent under the previous version of 
diagnostic code 5293 were based on recurring attacks and the extent of 
relief between attacks. The maximum evaluation of 60 percent required 
``persistent symptoms compatible with sciatic neuropathy with 
characteristic pain and demonstrable muscle spasm, absent ankle jerk, 
or other neurological findings appropriate to site of diseased disc, 
little intermittent relief.'' In Bierman, the Board of Veterans' 
Appeals (BVA) denied a separate rating for neurological deficits 
because the veteran's 60 percent for IVDS under diagnostic code 5293 
already compensated him for neurological deficits and their effects for 
which he was seeking a separate rating. The CAVC stated that, because 
the BVA failed to articulate a satisfactory statement of reasons or 
bases for its rating, the Court could not determine why this veteran's 
IVDS was not rated separately for foot drop under DC 8521, pertaining 
to paralysis of the popliteal nerve. The CAVC also stated that it was 
unclear from the rating schedule itself which functional disabilities 
were compensated as part of a 60-percent rating for IVDS.
    Notwithstanding the commenter's interpretation of the prior 
evaluation criteria, a memorandum issued by the BVA Chairman, 
Memorandum, No. 01-92-23, dated August 10, 1992, did not interpret 
prior diagnostic code 5293 to allow a full 60 percent in addition to a 
separate evaluation for other body parts. Rather, it stated that, 
except for exceptional cases, a single rating of 60 percent will 
ordinarily be assigned when a veteran's footdrop is the result of 
radiculopathy attributable to IVDS. By specifying in this rulemaking 
that a rating for IVDS may be based either on the combined severity of 
the chronic neurological and orthopedic findings, or on the extent of 
incapacitating episodes resulting from all manifestations of the 
disease under diagnostic code 5293, we clarify how functional 
manifestations of IVDS are to be evaluated, and we make no further 
changes based on this comment.
    The same commenter stated that the rating criteria in the proposed 
rule are not consistent with other ratings in the schedule because the 
design of the proposed rule does not provide a rating that corresponds 
to functional impairment.
    We disagree. On the contrary, the revised rule will assure 
consistency with other ratings in the schedule because the same rating 
criteria will be used to evaluate identical disabilities, regardless of 
etiology. The functional impairment due to footdrop or limitation of 
motion of the spine, for example, will be evaluated using the same 
criteria, whether due to IVDS or any other cause. If both footdrop and 
limitation of motion of the spine are present, the combined evaluation 
will be the same, whether due to IVDS or any other cause. These 
provisions are clearly consistent with the approach and manner in which 
we assess functional impairment in similar disabilities, and we make no 
change based on this comment.
    The same commenter stated that the rule must ``continue'' to 
recognize that secondary disabilities involving separate anatomical 
segments or body parts and separate functions are separately ratable 
and may be rated in combination with a 60-percent rating for disc 
syndrome itself.
    As discussed above, the commenter's interpretation of the previous 
evaluation criteria for IVDS is not consistent with VA's 
interpretation. Under the new criteria, all orthopedic and neurologic 
disabilities that are part of IVDS, whether affecting the spine, the 
extremities, the bladder, or other areas, will be evaluated under one 
or the other of the alternative methods of evaluation. However, the 
revised regulation is also clear that IVDS cannot be evaluated under 
both sets of criteria for a single spinal segment. If the evaluation is 
based on the chronic orthopedic and neurologic manifestations, there 
will be no evaluation for incapacitating episodes. We therefore make no 
change based on this comment.
    We have edited the definition of incapacitating episodes for 
clarity and have defined ``chronic manifestations'' to mean 
``orthopedic and neurologic signs and symptoms resulting from IVDS that 
are present constantly, or nearly so.'' These are not substantive 
changes.
    We have also simplified note (2) by editing for clarity and by 
removing specific examples of chronic manifestations, which we believe 
are unnecessary.
    VA appreciates the comments submitted in response to the proposed 
rule, which is now adopted with the amendments noted above.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector of 
$100 million or more in any given year. This rule would have no 
consequential effect on State, local or tribal governments.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Executive Order 12866

    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.

Regulatory Flexibility Act

    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.

[[Page 54349]]

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers are 
64.104 and 64.109.

List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

    Approved: June 24, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set forth 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, unless otherwise noted.

Subpart B--Disability Ratings

    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
------------------------------------------------------------------------
                                                                 Rating
------------------------------------------------------------------------
                  *        *        *        *        *
5293 Intervertebral disc syndrome:
  Evaluate intervertebral disc syndrome (preoperatively or
   postoperatively) either on the total duration of
   incapacitating episodes over the past 12 months or by
   combining under Sec.  4.25 separate evaluations of its
   chronic orthopedic and neurologic manifestations along with
   evaluations for all other disabilities, whichever method
   results in the higher evaluation.
  With incapacitating episodes having a total duration of at          60
   least six weeks during the past 12 months..................
  With incapacitating episodes having a total duration of at          40
   least four weeks but less than six weeks during the past 12
   months.....................................................
  With incapacitating episodes having a total duration of at          20
   least two weeks but less than four weeks during the past 12
   months.....................................................
  With incapacitating episodes having a total duration of at          10
   least one week but less than two weeks during the past 12
   months.....................................................
------------------------------------------------------------------------


    Note (1): For purposes of evaluations under 5293, an 
incapacitating episode is a period of acute signs and symptoms due 
to intervertebral disc syndrome that requires bed rest prescribed by 
a physician and treatment by a physician. ``Chronic orthopedic and 
neurologic manifestations'' means orthopedic and neurologic signs 
and symptoms resulting from intervertebral disc syndrome that are 
present constantly, or nearly so.


    Note (2): When evaluating on the basis of chronic 
manifestations, evaluate orthopedic disabilities using evaluation 
criteria for the most appropriate orthopedic diagnostic code or 
codes. Evaluate neurologic disabilities separately using evaluation 
criteria for the most appropriate neurologic diagnostic code or 
codes.


    Note (3): If intervertebral disc syndrome is present in more 
than one spinal segment, provided that the effects in each spinal 
segment are clearly distinct, evaluate each segment on the basis of 
chronic orthopedic and neurologic manifestations or incapacitating 
episodes, whichever method results in a higher evaluation for that 
segment.

* * * * *

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

[FR Doc. 02-21365 Filed 8-21-02; 8:45 am]
BILLING CODE 8320-01-P