[Federal Register Volume 68, Number 93 (Wednesday, May 14, 2003)]
[Rules and Regulations]
[Pages 25822-25823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12038]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AK86


Schedule for Rating Disabilities: Evaluation of Tinnitus

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
Schedule for Rating Disabilities to state more explicitly the method of 
evaluation of tinnitus under diagnostic code 6260 in the portion of the 
rating schedule that addresses evaluation of disabilities of the ear. 
The intended effect of this action is to codify current standard VA 
practice by stating that recurrent tinnitus will be assigned only a 
single 10-percent evaluation whether it is perceived in one ear, both 
ears, or somewhere in the head.

EFFECTIVE DATE: This amendment is effective June 13, 2003.

FOR FURTHER INFORMATION CONTACT: Audrey Tomlinson, Medical Officer, 
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: On September 19, 2002, VA published in the 
Federal Register (67 FR 59033) a proposal to amend diagnostic code 6260 
in 38 CFR 4.87, in order to codify current standard VA practice 
concerning the evaluation of tinnitus. It states that recurrent 
tinnitus will be assigned only a single ten-percent evaluation, whether 
it is perceived in one ear, both ears, or somewhere in the head. 
Interested persons were invited to submit written comments on or before 
November 18, 2002. We received two comments, one from the American 
Legion and one from a concerned individual.
    One commenter felt that limiting tinnitus to a single ten-percent 
evaluation is arbitrary and inconsistent with other provisions of VA's 
Schedule for Rating Disabilities that deal with bilateral disabilities, 
such as those providing separate evaluations for each ear with hearing 
impairment. The same commenter felt that the proposed rule document 
offered no substantive rationale for maintaining the current assignment 
of a single evaluation for tinnitus, regardless of whether it is 
perceived in one or both ears.
    We disagree. VA's Audiology and Speech Pathology Service recently 
wrote a booklet titled Hearing Impairment, an Independent Study Course 
for health care providers. The section on tinnitus states that the fact 
that most tinnitus appears to be coming from the ear led to a belief 
that tinnitus was generated in the inner ear, but this is not the case. 
It further states that damage in the inner ear may be a precursor for 
subjective tinnitus, but that subjective tinnitus is generated within 
the central auditory pathways. Comparing tinnitus, a central nervous 
condition, to hearing loss, a disability from damage to an organ of 
special sense (the ear) is not a valid comparison. We have made no 
change in response to this comment. Because over 200,000 veterans are 
currently rated for tinnitus under diagnostic code 6260 under Diseases 
of the Ear, for

[[Page 25823]]

administrative efficiency, and because many are accustomed to looking 
in that section of the rating schedule, the current placement of 
tinnitus within the rating schedule will remain unchanged.
    The SUPPLEMENTARY INFORMATION section of the proposed regulatory 
amendment explained that tinnitus is a single disability arising in the 
brain and that it consists of the perception of sound in the absence of 
an external stimulus. This definition applies whether the tinnitus is 
perceived in one ear, both ears, or somewhere undefined in the head. 
The commenter provided no information that would refute this medical 
explanation. The degree of disability, that is, the degree to which 
tinnitus impairs the veteran's earning capacity, is the same regardless 
of how the tinnitus is perceived. To rate each ear separately for this 
single disability would violate the prohibition on pyramiding, 38 CFR 
4.14. Similarly, to rate each ear separately would be a violation of 
the principle of 38 CFR 4.25(b) that a ``single disease entity'' is to 
be given a single rating. A single evaluation for a single disability 
is appropriate. We have made no change based on this comment.
    A second commenter suggested that we adopt measurable time and 
duration standards for the term ``recurrent.'' Because a substantive 
change to define the term ``recurrent'' is beyond the scope of this 
rulemaking, we have made no change based on this comment.
    VA appreciates the comments submitted in response to the proposed 
rule. Based on the rationale stated in the proposed rule and in this 
document, the proposed rule is adopted without change.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

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.

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.

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.

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, Individuals with disabilities, Pensions, 
Veterans.

    Approved: April 14, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, 38 CFR part 4, subpart B, is 
amended as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

Subpart B--Disability Ratings

0
1. The authority citation for part 4 continues to read as follows:

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


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2. In Sec.  4.87, diagnostic code 6260 is revised to read as follows:


Sec.  4.87  Schedule of ratings--ear.

                           Diseases of the Ear
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
 
                                * * * * *
6260 Tinnitus, recurrent......................................        10
------------------------------------------------------------------------


    Note (1): 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.


    Note (2): Assign only a single evaluation for recurrent 
tinnitus, whether the sound is perceived in one ear, both ears, or 
in the head.


    Note (3): Do not evaluate objective tinnitus (in which the sound 
is audible to other people and has a definable cause that may or may 
not be pathologic) under this diagnostic code, but evaluate it as 
part of any underlying condition causing it.

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

[FR Doc. 03-12038 Filed 5-13-03; 8:45 am]
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