[Federal Register Volume 67, Number 171 (Wednesday, September 4, 2002)]
[Proposed Rules]
[Pages 56509-56516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22440]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AJ60


Schedule for Rating Disabilities; The Spine

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 that portion 
of the Musculoskeletal System that addresses disabilities of the spine. 
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: Comments must be received on or before November 4, 2002.

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; or fax comments to 
(202) 273-9289; or e-mail comments to [email protected]. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AJ60.'' All comments received will be available for public 
inspection in the Office of Regulations Management, Room 1158, between 
the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except 
holidays).

FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant, 
Policy and Regulations Staff (211A), Compensation and Pension Service, 
Veterans Benefits Administration, Department of Veterans Affairs, 810 
Vermont Ave., NW., Washington, DC 20420, (202) 273-7215.

SUPPLEMENTARY INFORMATION: VA proposes to amend its Schedule for Rating 
Disabilities by revising that portion of the Musculoskeletal System 
that addresses disabilities of the spine. VA published an advance 
notice of proposed rulemaking in the Federal

[[Page 56510]]

Register on December 28, 1990 (55 FR 53315), advising the public that 
it was preparing to revise and update the schedule for rating 
disabilities of the orthopedic system. What is referred to as ``The 
Orthopedic System'' in the title of the advance notice of proposed 
rulemaking is part of the Musculoskeletal System portion of the rating 
schedule. The rest of the Musculoskeletal System portion addresses 
muscle injuries. The revision of the Muscle Injuries portion of the 
Musculoskeletal System was published as a final rule in the Federal 
Register of June 3, 1997 (62 FR 30235).
    In addition to publishing an advance notice, VA also contracted 
with an outside consultant to recommend changes to the evaluation 
criteria to ensure that the schedule uses current medical terminology 
and unambiguous criteria, and that it reflects medical advances that 
have occurred since the last review. The consultant convened a panel of 
non-VA specialists to review that portion of the rating schedule 
dealing with the musculoskeletal system in order to formulate 
recommendations. The comments of the consultants regarding disabilities 
of the spine are incorporated into the discussions below.
    In response to the advance notice of proposed rulemaking, VA 
received one comment focusing on the spine. The commenter suggested VA 
adopt an evaluation system with eight progressive grades of spine 
disability that would be based on a variety of findings, including 
muscle guarding, radiculopathy, muscle atrophy and other impairments of 
the lower extremities, instability of the spine, cauda equina syndrome, 
paraplegia, and bowel and bladder involvement. The commenter's proposed 
system would assign one evaluation based on presence or absence of 
these factors. While such a grading system may be useful for clinical 
purposes, it is not feasible for rating purposes because it assigns one 
grade or level of disability that is based not only on orthopedic 
disabilities of the spine, but also on gastrointestinal, genitourinary, 
and neurologic disabilities, all of which have specific separate 
evaluation criteria in the Digestive, Genitourinary, and Neurologic 
System sections of the rating schedule. For this reason, we do not 
propose to adopt the eight-grade method of categorizing spine 
disabilities. However, we do propose to revise the evaluation criteria 
for rating disabilities of the spine by establishing a general rating 
formula that will apply to all diseases and injuries of the spine. 
Intervertebral disc syndrome was addressed in a separate rulemaking, 
RIN 2900-AI22. The final revision of intervertebral disc syndrome was 
published in the Federal Register on August 22, 2002 at 67 FR 54345. 
This proposed regulatory amendment would make editorial changes to the 
evaluation criteria for intervertebral disc syndrome to make them 
compatible with the new general rating formula. This does not, however, 
represent any substantive change to the recently adopted evaluation 
criteria for intervertebral disc syndrome.
    We propose to add a note following the general rating formula that 
would direct the rating agency to separately evaluate any associated 
objective neurologic abnormalities, including, but not limited to, 
bowel or bladder impairment, and sensory or motor loss of the 
extremities. Such evaluations would be based on criteria in the 
Digestive, Genitourinary, and Neurologic System portions of the rating 
schedule, depending on the specific findings. Bowel and bladder 
impairment and sensory or motor loss in extremities are among the 
neurologic impairments that most commonly result from disease or injury 
of the spine. However, a great variety of neurologic disabilities might 
stem from diseases and injuries of the spine. In view of this fact, and 
the many different sets of evaluation criteria that might be needed, it 
would be impractical to repeat them all in the orthopedic part of the 
schedule.
    The current rating schedule provides diagnostic codes for eleven 
spine conditions. Four codes represent diagnoses of spine disabilities: 
Vertebral fracture (diagnostic code 5285); intervertebral disc syndrome 
(diagnostic code 5293); sacroiliac injury and weakness (diagnostic code 
5294); lumbosacral strain (diagnostic code 5295). The seven remaining 
codes concern findings of ankylosis (bony fixation) or limitation of 
motion of the spine rather than diagnoses. The codes representing 
ankylosis or limitation of motion of the spine include current 
diagnostic codes 5286 (ankylosis of entire spine), 5287 (ankylosis of 
cervical spine), 5288 (ankylosis of dorsal spine), 5289 (ankylosis of 
lumbar spine), 5290 (limitation of motion of cervical spine), 5291 
(limitation of motion of dorsal spine), and 5292 (limitation of motion 
of lumbar spine). Evaluations involving ankylosis are assigned based on 
whether the ankylosis is favorable or unfavorable, without defining 
those terms, and with separate evaluations provided for lumbar, dorsal 
and cervical spine. Evaluations involving limitation of motion of the 
lumbar, dorsal and cervical spine are based on such indefinite criteria 
as ``slight,'' ``moderate,'' or ``severe'' limitation of motion. We 
propose to delete the seven diagnostic codes (5286 through 5292) that 
involve findings of ankylosis or limitation of motion of the spine 
because, rather than representing conditions or diagnoses, they are 
findings that are common to a variety of spinal conditions. The general 
rating formula we are proposing will include objective criteria for 
evaluating limitation of motion and ankylosis and will eliminate 
indefinite criteria and terminology. We also propose to define 
favorable ankylosis and unfavorable ankylosis in a note which will be 
explained in a separate paragraph of this summary.
    Our contract consultants recommended that we add spinal stenosis 
(narrowing of the spinal canal, with associated symptoms) and 
spondylolisthesis or segmental instability to the updated schedule. 
Consistent with our consultants' recommendations, we propose to add 
these and several other spine disabilities that are distinct from those 
currently listed in the rating schedule and that occur frequently 
enough to warrant inclusion.
    In order to add these spine disabilities and still group evaluation 
criteria for all injuries and disabilities of the spine together in one 
section of the rating schedule, we propose to move all diagnostic codes 
for spinal disabilities and assign them new diagnostic codes ranging 
from diagnostic code 5235 through diagnostic code 5243. We propose to 
provide new diagnostic codes for the following conditions that are 
already in the Schedule: 5235 for vertebral fracture, 5236 for 
sacroiliac injury and weakness, 5237 for lumbosacral strain, and 5243 
for intervertebral disc syndrome. The disabilities we propose to add 
are: spinal stenosis (a narrowing of the central spinal canal that 
causes pressure on the spinal cord and/or nerve roots, most commonly 
due to degenerative arthritis or degenerative disc disease) (diagnostic 
code 5238), spondylolisthesis or segmental instability (slipping of all 
or part of one vertebra forward on another vertebra that may compress 
spinal nerves) (diagnostic code 5239), ankylosing spondylitis (a 
rheumatic disease that affects the spine and sacroiliac joints and that 
may have extra-articular (outside the joints) findings) (diagnostic 
code 5240), and spinal fusion (diagnostic code 5241). We also propose 
to add degenerative arthritis of the spine (diagnostic code 5242), a 
common condition that will ordinarily be evaluated under the general 
rating

[[Page 56511]]

formula for diseases and injuries of the spine. There is currently a 
single diagnostic code (5003) for degenerative arthritis of any joint, 
with evaluation criteria based on X-ray findings, or X-ray findings 
plus limitation of motion. The general rating formula we are proposing 
will provide criteria for evaluating degenerative arthritis of the 
spine except when X-ray findings, as discussed under diagnostic code 
5003, are the sole basis of its evaluation.
    Diagnostic code 5285 is currently titled ``Vertebra, fracture of, 
residuals.'' Our contract consultants recommended that we include 
dislocation of a vertebra under this diagnostic code because it may 
result in the same type of disability as a fracture, and we accordingly 
propose to move this disability to diagnostic code 5235, as previously 
explained, and rename it ``Vertebral fracture or dislocation.'' There 
are currently two defined evaluation levels for vertebral fractures 
under this code: 100 percent, based on the criteria ``With cord 
involvement, bedridden, or requiring long leg braces'; and 60 percent, 
based on the criteria ``Without cord involvement; abnormal mobility 
requiring neck brace (jury mast).'' There is also a direction to rate 
other cases based on limitation of motion or muscle spasm, with 10 
percent to be added to the rating if there is demonstrable deformity of 
the vertebral body.
    Our contract consultants suggested we assign a 100-percent rating 
for vertebral fracture or dislocation if an individual is ``non-
ambulatory,'' rather than if he or she requires long leg braces, 
because devices other than leg braces are commonly used. But because a 
veteran who is non-ambulatory may warrant any of several different 
evaluations, depending on the specific findings, we do not propose to 
adopt the consultants' suggestion. Instead, to ensure that all 
disabilities resulting from fracture or dislocation of the spine are 
taken into account in the evaluation, we propose to evaluate all 
disabilities of the spine, including fractures and dislocations of the 
spine, using a general formula that will be based on the orthopedic 
findings such as limitation of motion, ankylosis, muscle spasm, 
guarding, and tenderness, present in the individual case. The 
neurologic disabilities such as bowel or bladder impairment that result 
from spinal fracture or dislocation will be separately evaluated, as 
discussed above.
    Vertebral fracture with abnormal mobility requiring a neck brace, 
which is one of the criteria in the current schedule for a 60-percent 
evaluation for vertebral fracture, is a condition that ordinarily 
occurs only during the acute or convalescent phase of an injury. This 
temporary condition can therefore be evaluated under the provisions of 
38 CFR 4.28 (``Prestabilization rating from date of discharge from 
service''), 4.29 (``Ratings for service-connected disabilities 
requiring hospital treatment or observation''), or 4.30 (``Convalescent 
ratings''), and we propose to remove it from the evaluation criteria.
    Our contract consultants also recommended deleting the 60 percent 
level of evaluation for vertebral fracture without cord involvement 
because such a condition is not itself disabling. Under the proposed 
general rating formula, fractures without cord involvement would be 
rated on the basis of findings of limitation of motion, ankylosis, 
muscle spasm, guarding, and tenderness, at an evaluation level of zero, 
10, 20, 30, 50 or 100 percent, depending on the extent and severity of 
findings.
    The consultants stated that fracture or dislocation of the 
vertebrae is disabling only when there are residuals, and pointed out 
that completely asymptomatic fractures of vertebrae are not rare. A 
recent medical textbook on disability evaluation stated that vertebral 
fractures with loss of height of the vertebral body of 50-percent or 
less ordinarily do not require surgery, heal uneventfully, and are 
compatible with the resumption of normal activities after healing 
(``Disability Evaluation,'' 292-3 (Stephen L. Demeter, M.D., Gunnar 
B.J. Anderson, M.D., Ph.D., and George M. Smith, M.D., 1996)). We 
therefore propose to remove the current direction to add 10-percent to 
an evaluation for vertebral fracture based on demonstrable deformity of 
the vertebral body. Instead, we propose to make ``vertebral body 
fracture with loss of 50-percent or more of the height'' one of the 
criteria for a 10-percent evaluation. This will apply to vertebral 
fractures of that extent only when there are symptoms such as pain, 
stiffness, or aching in the area of the fracture. Otherwise, disability 
due to a vertebral body compression fracture would be evaluated at any 
appropriate level of evaluation, depending on the findings. This will 
ensure that evaluations are based on the actual signs and symptoms 
present, rather than solely on the presence of X-ray abnormalities, a 
finding not always indicative of actual disability.
    Our contract consultants recommended adding the words ``surgical or 
non-surgical'' to the current criteria for ankylosis of the spine. 
However, because the evaluation would be based on the same criteria 
whatever the cause of the ankylosis, we do not propose to adopt this 
suggestion. Instead, we propose to incorporate the current evaluation 
criteria for ankylosis of the spine into the proposed general rating 
formula without substantive change. We also propose to add a note 
following the formula defining unfavorable ankylosis as a condition in 
which the entire cervical spine, the entire thoracolumbar spine, or the 
entire spine is fixed in flexion (i.e., bent forward) or extension 
(i.e., bent backward), and the ankylosis results in one or more of the 
following: difficulty walking because of a limited line of vision; 
restricted opening of the mouth and chewing; breathing limited to 
diaphragmatic respiration; gastrointestinal symptoms due to pressure of 
the costal margin (ribs) on the abdomen; dyspnea (shortness of breath) 
or dysphagia (difficulty swallowing); atlantoaxial (the atlas and axis 
otherwise known as the first and second cervical vertebrae) or cervical 
subluxation or dislocation; or neurologic symptoms due to nerve root 
stretching. These signs and symptoms, which may be indications for 
spinal surgery, represent disability greater than limitation of motion 
of the spine alone. A spinal segment fixed in neutral position (for 
purposes of spinal range of motion, generally at zero degrees) is in 
favorable ankylosis (American Medical Association Guides to the 
Evaluation of Permanent Impairment, 2nd ed., (1984)).
    Our contract consultants recommended deleting zero percent and ten 
percent evaluations for ``slight'' limitation of motion under current 
diagnostic codes 5290, 5291, and 5292 because such minor conditions are 
difficult to distinguish from normal and do not result in significant 
impairment. The current evaluation criteria for limitation of motion of 
segments of the spine--``slight,'' ``moderate,'' and ``severe''--are 
subjective. We propose to remove those terms and specify in the general 
rating formula the exact extent of limitation of motion of either 
forward flexion or of the combined range of motion (the sum of the 
range of flexion, extension, left and right rotation, and left and 
right lateral flexion) that warrants each level of evaluation. This 
will ensure consistent evaluations.
    We further propose to add a note following the general rating 
formula that would specify the normal ranges of motion for the cervical 
and thoracolumbar spine and a new plate (Plate V) with diagrams 
demonstrating the ranges of motion. We propose to define the normal 
range of motion for the cervical spine as: forward flexion, zero to 45 
degrees; extension, zero to 45

[[Page 56512]]

degrees; left and right lateral flexion, zero to 45 degrees; and left 
and right rotation, zero to 80 degrees. We propose to define the normal 
range of motion for the thoracolumbar spine as: flexion, zero to 90 
degrees; extension, zero to 30 degrees; left and right lateral flexion, 
zero to 30 degrees; and left and right rotation, zero to 30 degrees. 
These ranges of motion are based on the American Medical Association 
Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984), 
which is the last edition of the Guides that measured range of motion 
of the spine using a goniometer. Subsequent editions of the Guides use 
an inclinometer for spine measurements, in part, they state, because it 
is difficult to measure movements of the small joints of the spine 
using a goniometer. The Veterans Health Administration (VHA) has 
advised us that obtaining consistent and accurate measurements of the 
range of motion of the spine using an inclinometer is technically 
difficult and that measurement by means of a goniometer is the current 
and preferred method of measurement in VHA because of ease of use and 
accuracy. Since measurement of the movement of the small or individual 
joints of the spine is not required by the evaluation criteria, and 
uniformity and consistency of measurements of range of motion are 
important for VA compensation purposes, we propose to require the use 
of a goniometer to determine the range of motion of the spine and to 
establish the normal range of motion based on measurements using a 
goniometer. Since goniometer measurements are shown in five degree 
increments, we propose to add a note to specify that each range of 
motion measurement be rounded to the nearest five degrees.
    We propose that the general rating formula provide criteria for the 
cervical and thoracolumbar spinal segments only, excluding a separate 
set of criteria for the thoracic (or dorsal) segment of the spine. The 
thoracic segment of the spine consists of the twelve thoracic 
vertebrae. Because the thoracic and lumbar segments ordinarily move as 
a unit, it is clinically difficult to separate the range of movement of 
one from that of the other. This combination of segments is also used 
in the 1984 AMA Guides. We also propose to replace the term ``dorsal'' 
with the term ``thoracic'' throughout this section, in keeping with 
current medical terminology.
    The current rating schedule states that ratings for ankylosis or 
limitation of motion shall not be assigned for more than one spinal 
segment by reason of involvement of only the first or last vertebrae of 
an adjacent segment. Because we propose to eliminate a separate 
evaluation for the thoracic spine, the vertebrae involved are the last 
cervical vertebra (C-7), and the first thoracic vertebra (T-1). 
Disability in both segments could exist, even if only C-7 or T-1 is 
involved. Separate evaluations for the cervical spine and the 
thoracolumbar spine should not be precluded in this situation if 
disability in both segments exists. Therefore, we propose to eliminate 
this provision.
    Current diagnostic code 5295 (lumbosacral strain) supports 
evaluations from zero to forty percent, based on pain, muscle spasm, 
limitation of motion, listing of the spine, loss of lateral motion with 
osteoarthritic changes, etc. We propose to move this disability to 
diagnostic code 5237 and evaluate lumbosacral strain under the general 
rating formula, which would include criteria adequate for its 
evaluation.
    The proposed general rating formula for diseases and injuries of 
the spine would apply to spinal stenosis, spondylolisthesis, 
lumbosacral strain, spinal fracture or dislocation, spinal fusion of 
single or multiple levels, ankylosing spondylitis, sacroiliac injury 
and weakness, degenerative arthritis (see also diagnostic code 5003) 
and, in part, intervertebral disc syndrome, which was revised in a 
separate rulemaking. The rating formula would be used when any of these 
conditions results in symptoms such as pain (with or without 
radiation), stiffness, or aching of the spine due to residuals of 
injury or disease. It would provide evaluation levels of zero, ten, 
twenty, thirty, forty, fifty, and one hundred percent, based on 
limitation of motion of the spine, either limitation of forward flexion 
alone, or limitation of the combined range of motion; the severity of 
ankylosis; and on the extent of muscle spasm, guarding, or localized 
tenderness. We propose no change from the current schedule in the 
overall possible range of evaluations for limitation of motion or 
ankylosis, but propose more objective criteria in order to ensure more 
consistent evaluations.
    Because of the new general rating formula we are proposing, we also 
propose to revise the introductory language used under intervertebral 
disc syndrome. It currently states, ``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.'' We propose to change it to ``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 evaluations under the General Rating Formula 
for Diseases and Injuries of the Spine along with evaluations for all 
other disabilities, whichever method results in the higher 
evaluation.''
    We propose to provide additional rating guidance through the use of 
several notes following the rating formula. The first note would direct 
that any associated objective neurologic abnormalities, including, but 
not limited to, bowel or bladder impairment, be separately evaluated. 
The second note would define, for VA compensation purposes, the normal 
ranges of motion for the cervical and thoracolumbar spinal segments and 
state that the normal combined range of motion for the cervical spine 
is 340 degrees and for the lumbar spine is 240 degrees and would state 
that the normal ranges of motion for each component of spinal motion 
provided are the maximum that can be used for calculation of the 
combined range of motion. The third note would state that in 
exceptional cases, an examiner may state that because of age, body 
habitus (physique, posture, and position), neurologic disease, or other 
factors not the result of disease or injury of the spine, the range of 
motion of the spine in a particular individual should be considered 
normal for that individual even though it does not conform to the 
normal range of motion stated in Note 2. Provided that the examiner 
furnishes an explanation, the examiner's assessment that the range of 
motion is normal for that individual will be accepted. The fourth note 
would state that for evaluation purposes, measurement of range of 
motion would be rounded to the nearest 5 degrees. The fifth note would 
define favorable and unfavorable ankylosis, for VA compensation 
purposes, as described above. The sixth note would direct that 
disability of the thoracolumbar and cervical spine segments be 
evaluated separately, except when there is unfavorable ankylosis of 
both segments, which will be rated as a single disability. This 
exception is proposed because unfavorable ankylosis of a single segment 
can be compensated for to some extent by the other spinal segment, even 
if it is favorably ankylosed. However, if both segments are ankylosed 
in an unfavorable position, no compensation is possible,

[[Page 56513]]

and the overall disability is total. Separately combining unfavorable 
ankylosis of each segment would result in an evaluation of only 70 
percent, a level which is not commensurate with the extent of 
disability.

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 document has been reviewed by the Office of Management and 
Budget under 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. 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.

Catalog of Federal Domestic Assistance Numbers

    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: July 18, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.
    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR part 4 (subpart B) as follows:

PART 4--SCHEDULE FOR RATING DISABILITIES

Subpart B--Disability Ratings

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

    Authority: 38 U.S.C. 1155, unless otherwise noted.

    2. In Sec. 4.71a, the table ``The Spine'' is revised and is 
transferred so that it precedes the table ``The Hip and Thigh'; and 
Plate V is added immediately following the table ``The Spine'', to read 
as follows:


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

* * * * *

                                The Spine
------------------------------------------------------------------------
                                                              Rating
------------------------------------------------------------------------
5235 Vertebral fracture or dislocation.
5236 Sacroiliac injury and weakness.
5237 Lumbosacral strain.
5238 Spinal stenosis.
5239 Spondylolisthesis or segmental instability.
5240 Ankylosing spondylitis.
5241 Spinal fusion.
5242 Degenerative arthritis of the spine (see also
 diagnostic code 5003).
5243 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
     evaluations under the General Rating Formula for
     Diseases and Injuries of the Spine along with
     evaluations for all other disabilities, whichever
     method results in the higher evaluation
    With incapacitating episodes having a total duration              60
     of at least six weeks during the past 12 months....
    With incapacitating episodes having a total duration              40
     of at least four weeks but less than six weeks
     during the past 12 months..........................
    With incapacitating episodes having a total duration              20
     of at least two weeks but less than four weeks
     during the past 12 months..........................
    With incapacitating episodes having a total duration              10
     of at least one week but less than two weeks during
     the past 12 months.................................
    Note (1): For purposes of evaluations under
     diagnostic code 5243, 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.
    Note (2): 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
     incapacitating episodes or under the General Rating
     Formula for Diseases and Injuries of the Spine,
     whichever method results in a higher evaluation for
     that segment.
    General Rating Formula for Diseases and Injuries of
     the Spine (including spinal stenosis,
     spondylolisthesis, lumbosacral strain, fracture or
     dislocation, spinal fusion, ankylosing spondylitis,
     sacroiliac injury and weakness, degenerative
     arthritis (see also diagnostic code 5003), and disc
     disease (if not evaluated based on incapacitating
     episodes):
    With symptoms such as pain (whether or not it
     radiates), stiffness, or aching in the area of the
     spine affected by residuals of injury or disease
     and:
    Unfavorable ankylosis of the entire spine...........             100
    Unfavorable ankylosis of the entire thoracolumbar                 50
     spine..............................................
    Unfavorable ankylosis of the entire cervical spine;               40
     or, forward flexion of the thoracolumbar spine 30
     degrees or less; or, favorable ankylosis of the
     entire thoracolumbar spine.........................
    Forward flexion of the cervical spine 15 degrees or               30
     less; or, favorable ankylosis of the entire
     cervical spine.....................................
    Forward flexion of the thoracolumbar spine greater                20
     than 30 degrees but not greater than 60 degrees;
     or, forward flexion of the cervical spine greater
     than 15 degrees but not greater than 30 degrees;
     or, the combined range of motion of the
     thoracolumbar spine not greater than 120 degrees;
     or, the combined range of motion of the cervical
     spine not greater than 170 degrees; or, muscle
     spasm or guarding severe enough to result in an
     abnormal gait or abnormal spinal contour such as
     scoliosis, reversed lordosis, or abnormal kyphosis.

[[Page 56514]]

 
    Forward flexion of the thoracolumbar spine greater                10
     than 60 degrees but not greater than 85 degrees;
     or, forward flexion of the cervical spine greater
     than 30 degrees but not greater than 40 degrees;
     or, combined range of motion of the thoracolumbar
     spine greater than 120 degrees but not greater than
     235 degrees; or, combined range of motion of the
     cervical spine greater than 170 degrees but not
     greater than 335 degrees; or, muscle spasm,
     guarding, or localized tenderness not resulting in
     abnormal gait or abnormal spinal contour; or,
     vertebral body fracture with loss of 50 percent or
     more of the height.................................
    No muscle spasm, guarding, or localized tenderness,                0
     and any limitation of motion less severe than the
     criteria for a 10-percent evaluation...............
    Note (1): Evaluate any associated objective
     neurologic abnormalities, including, but not
     limited to, bowel or bladder impairment,
     separately, under an appropriate diagnostic code.
    Note (2): (See also Plate V.) For VA compensation
     purposes, normal forward flexion of the cervical
     spine is zero to 45 degrees, extension is zero to
     45 degrees, left and right lateral flexion are zero
     to 45 degrees, and left and right lateral rotation
     are zero to 80 degrees. Normal forward flexion of
     the thoracolumbar spine is zero to 90 degrees,
     extension is zero to 30 degrees, left and right
     lateral flexion are zero to 30 degrees, and left
     and right lateral rotation are zero to 30 degrees.
     The combined range of motion refers to the sum of
     the range of forward flexion, extension, left and
     right lateral flexion, and left and right rotation.
     The normal combined range of motion of the cervical
     spine is 340 degrees and of the thoracolumbar spine
     is 240 degrees. The normal ranges of motion for
     each component of spinal motion provided in this
     note are the maximum that can be used for
     calculation of the combined range of motion.
    Note (3): In exceptional cases, an examiner may
     state that because of age, body habitus, neurologic
     disease, or other factors not the result of disease
     or injury of the spine, the range of motion of the
     spine in a particular individual should be
     considered normal for that individual, even though
     it does not conform to the normal range of motion
     stated in Note (2). Provided that the examiner
     supplies an explanation, the examiner's assessment
     that the range of motion is normal for that
     individual will be accepted.
    Note (4): Round each range of motion measurement to
     the nearest five degrees.
    Note (5): For VA compensation purposes, unfavorable
     ankylosis is a condition in which the entire
     cervical spine, the entire thoracolumbar spine, or
     the entire spine is fixed in flexion or extension,
     and the ankylosis results in one or more of the
     following: difficulty walking because of a limited
     line of vision; restricted opening of the mouth and
     chewing; breathing limited to diaphragmatic
     respiration; gastrointestinal symptoms due to
     pressure of the costal margin on the abdomen;
     dyspnea or dysphagia; atlantoaxial or cervical
     subluxation or dislocation; or neurologic symptoms
     due to nerve root stretching. Fixation of a spinal
     segment in neutral position (zero degrees) always
     represents favorable ankylosis.
    Note (6): Separately evaluate disability of the
     thoracolumbar and cervical spine segments, except
     when there is unfavorable ankylosis of both
     segments, which will be rated as a single
     disability.
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[FR Doc. 02-22440 Filed 9-3-02; 8:45 am]
BILLING CODE 8320-01-C