[Federal Register Volume 68, Number 166 (Wednesday, August 27, 2003)]
[Rules and Regulations]
[Pages 51454-51458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21839]
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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: Final rule.
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SUMMARY: This document amends 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: Effective Date: This amendment is effective September 26, 2003.
FOR FURTHER INFORMATION CONTACT: Audrey Tomlinson, Medical Officer,
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 has amended its Schedule for Rating
Disabilities, 38 CFR part 4, 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. VA published a notice of proposed
rulemaking in the Federal Register on September 4, 2002 (67 FR 56509).
Interested persons were invited to submit written comments on or before
November 4, 2002. We received comments from two commenters, one from
the Disabled American Veterans, and one from a VA employee.
We proposed to evaluate spine disabilities under a General Rating
Formula for Diseases and Injuries of the Spine that included the
following introductory language: ``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''. One commenter felt that
including this language does not allow raters to take into account the
impairment that may result from asymptomatic residuals or sequelae of
diseases or injury of the spine and also that the proposed rating
formula would not recognize pain as disabling unless it is present in
conjunction with ankylosis or limitation of motion, etc. The commenter
went on to say that symptoms such as pain, stiffness, and aching should
alone or in combination with each other warrant compensable ratings
when severe enough to cause disability.
In response to this comment, we have changed the introductory
language quoted above to ``With or without 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''. Doing so removes
the requirement that there be pain, stiffness, or aching in order to
assign any evaluation under the General Rating Formula for Diseases and
Injuries of the Spine. Pain alone cannot be evaluated without being
associated with an underlying pathologic abnormality. In
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the case of spine disabilities, it would be rare for pain not to be
present. Pain is often the primary factor limiting motion, for example,
and is almost always present when there is muscle spasm. Therefore, the
evaluation criteria provided are meant to encompass and take into
account the presence of pain, stiffness, or aching, which are generally
present when there is a disability of the spine.
The prior schedule directed that a vertebral fracture that did not
meet the criteria for a 60-percent or higher evaluation would be
evaluated on the basis of limited motion or muscle spasm, with 10
percent added for demonstrable vertebral body deformity. Since the term
``demonstrable deformity'' was not defined, however, this provision was
applied inconsistently. We proposed that a 10-percent evaluation be
assigned for a vertebral body fracture with loss of 50 percent or more
of the height. One commenter felt that this requirement was too
stringent.
As we reported in the preamble to the proposed regulation, a recent
medical textbook on disability evaluation states 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)).
Furthermore, should a vertebral body fracture with less than 50 percent
loss of height prove to be disabling, it may be evaluated based on any
specific disabling residuals that are present, such as pain or
limitation of motion. In our judgment, the requirement that there be a
loss of 50 percent or more of the height of a fractured vertebral body
in order to assign a 10-percent evaluation based on deformity alone has
a sound medical basis and will promote consistency, and we have made no
change based on this comment.
One commenter felt that it is confusing and illogical to list the
evaluation criteria for diagnostic codes 5235 to 5242 after diagnostic
code 5243. In response, we have moved the General Rating Formula for
Diseases and Injuries of the Spine to the beginning of the Spine
subsection. For further clarity, we have added the title ``Formula for
Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes''
to the set of evaluation criteria under diagnostic code 5243 and
explained that intervertebral disc syndrome may be evaluated under
either rating formula, depending on which is more beneficial to the
veteran. All other spine diseases and injuries will be evaluated under
the General Rating Formula for Diseases and Injuries of the Spine.
We proposed that the language under diagnostic code 5243 be:
``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.'' A commenter felt
that the proposed language was confusing and suggested that we revise
it.
We agree that the language could be clearer and have revised it to
read: ``Evaluate intervertebral disc syndrome (preoperatively or
postoperatively) either under the General Rating Formula for Diseases
and Injuries of the Spine or under the Formula for Rating
Intervertebral Disc Syndrome Based on Incapacitating Episodes,
whichever method results in the higher evaluation when all disabilities
are combined under Sec. 4.25.''
One commenter felt that painful motion, even if the range of motion
is normal, should be one of the criteria for a 10-percent evaluation
because usually any limitation of motion is due to pain, and we usually
give 10 percent for pain on motion, under Sec. Sec. 4.45 (The joints)
and 4.59 (Painful motion).
As discussed above, we developed evaluation criteria that are meant
to take pain and other symptoms into account. Therefore, an evaluation
based on pain alone would not be appropriate, unless there is specific
nerve root pain, for example, that could be evaluated under the
neurologic sections of the rating schedule.
The same commenter said there is no need for criteria for a zero-
percent evaluation, since Sec. 4.31 (Zero percent evaluations) states
that a zero percent evaluation can be assigned in any case when the
requirements for a compensable evaluation are not met. On further
consideration, and in view of other changes we have made in the General
Rating Formula, we agree and have removed the zero-percent criteria.
The commenter also suggested that we add diagnostic codes for
pyriformis syndrome, mechanical back pain due to poor posture, and neck
strain to the rating schedule.
Pyriformis syndrome, often called pseudosciatica, is characterized
by sciatica-like pain. It is regarded as a pain syndrome or a
functional syndrome because there is no demonstrable pathology to
account for the symptoms. It is a controversial diagnosis because there
is no agreement on how to diagnose it, and there is no way to confirm
the diagnosis by testing. We have not added this to the rating schedule
because its diagnosis is controversial and uncertain.
Section 4.40 indicates that functional loss of the musculoskeletal
system may be due to pain when it is supported by adequate pathology.
The diagnosis of mechanical back pain is a broad general diagnosis that
does not identify an underlying pathologic process to account for the
pain. Most mechanical back pain (70%) is due to lumbar strain or
sprain, with 10% due to degenerative changes in discs and facets, 4%
due to herniated discs, 4% due to osteoporotic compression fractures,
and 3% due to spinal stenosis. (http://www.emedicine.com/pmr/topic73.htm). Examiners should be asked to identify the underlying
pathologic process causing back pain, and evaluations can then be made
under the appropriate diagnostic codes for spine disabilities that are
listed in the rating schedule.
We agree that neck strain is a common disability in veterans and
have therefore revised the title of diagnostic code 5237 to
``Lumbosacral or cervical strain''. We have also revised the heading of
the General Rating Formula for Diseases and Injuries of the Spine
accordingly.
One commenter suggested we add a note explaining when to use
diagnostic code 5320 (for muscle injury of Group XX muscles (spinal
muscles)) rather than 5237 (lumbosacral or cervical strain).
In our judgment, such a note is unnecessary. Diagnostic code 5320
is primarily used for evaluating muscle injuries due to wounds caused
by gunshots or other missiles, as Sec. 4.56 (Evaluation of muscle
disabilities) indicates. Lumbosacral and cervical strain do not stem
from wounds but mainly from work or recreational injuries that involve
sudden twisting, overuse, improper lifting, etc., sometimes
superimposed on mechanical problems such as obesity, postural defects,
or anatomical defects (http://users.rowan.edu, The Merck Manual (17th
edition 1999, page 504), http://www.bonetumour.org/book, http://www.emedicine.com/sports/topic69.htm). Muscle strains are, therefore,
most appropriately evaluated under diagnostic code 5237 (lumbosacral
and cervical strain).
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
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proposed rule is adopted with the changes noted.
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 amendment would have no
such effect on State, local, or tribal governments, or the private
sector.
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: June 12, 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.
0
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
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Rating
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General Rating Formula for Diseases and Injuries of the Spine
(For diagnostic codes 5235 to 5243 unless 5243 is evaluated
under the Formula for Rating Intervertebral Disc Syndrome
Based on Incapacitating Episodes):
With or without symptoms such as pain (whther or not it
radiates), stiffness, or aching in the area of the spine
affected by residuals of injury or disease
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....................................
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..................
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.
[[Page 51457]]
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.
5235 Vertebral fracture or dislocation
5236 Sacroiliac injury and weakness
5237 Lumbosacral or cervical 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 under the General Rating Formula for
Diseases and Injuries of the Spine or under the Formula for
Rating Intervertebral Disc Syndrome Based on Incapacitating
Episodes, whichever method results in the higher evaluation
when all disabilities are combined under Sec. 4.25.
Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes
With incapacitating episodes having a total duration of at 60
least 6 weeks during the past 12 months......................
With incapacitating episodes having a total duration of at 40
least 4 weeks but less than 6 weeks during the past 12 months
With incapacitating episodes having a total duration of at 20
least 2 weeks but less than 4 weeks during the past 12 months
With incapacitating episodes having a total duration of at 10
least one week but less than 2 weeks during the past 12
months.......................................................
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BILLING CODE 8320-01-P
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[FR Doc. 03-21839 Filed 8-26-03; 8:45 am]
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