[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

[[Page 51455]]

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

[[Page 51456]]

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.......................................................
------------------------------------------------------------------------

BILLING CODE 8320-01-P

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[FR Doc. 03-21839 Filed 8-26-03; 8:45 am]
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