[Federal Register Volume 71, Number 145 (Friday, July 28, 2006)]
[Rules and Regulations]
[Pages 42758-42760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12079]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AK21


Definition of Psychosis for Certain VA Purposes

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
adjudication regulations to define the term ``psychosis.'' The term is 
used but not defined in certain statutes that provide presumptive 
service connection for compensation. The intended effect of this 
amendment is consistent application of these statutory provisions.

[[Page 42759]]


DATES: Effective Date: This amendment is effective August 28, 2006.
    Applicability Date: The provisions of this regulation shall apply 
to all applications for benefits received by VA on or after August 28, 
2006.

FOR FURTHER INFORMATION CONTACT: Bill Russo, Chief, Regulations Staff 
(211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., 
Washington, DC, 20420, (202) 273-7211.

SUPPLEMENTARY INFORMATION: On October 11, 2002, VA published in the 
Federal Register (67 FR 63352) a proposal to amend VA regulations to 
define the term ``psychosis'' as used in statutory and regulatory 
provisions concerning presumptive service connection for compensation 
or health care purposes. Interested persons were invited to submit 
written comments on or before December 10, 2002. We received three 
comments: one from the American Psychiatric Association, one from the 
American Association for Geriatric Psychiatry, and one from a member of 
the general public.
    In response to the proposed rule, which referenced Diagnostic and 
Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) in the 
preamble, one commenter observed that the DSM-IV is essentially out-of-
print, having been replaced by Diagnostic and Statistical Manual of 
Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR).
    As a preliminary matter, we note that DSM-IV does not differ 
materially from DSM-IV-TR as to which disorders are classified as 
psychoses. (Compare page 19 of DSM-IV with pages 19-20 in DSM-IV-TR; 
pages 273-274 in DSM-IV with pages 297-298 in DSM-IV-TR; and pages 694-
695 of DSM-IV with pages 750-751 in DSM-IV-TR). Although our proposed 
rule relied on the DSM-IV to define ``psychosis,'' we will address the 
comments to the proposed rule based on DSM-IV-TR and refer to DSM-IV-TR 
in the final rule because it is the most updated and accessible version 
of the manual. Furthermore, VA will update the regulation being added 
by this rulemaking, 38 CFR 3.384, when a new edition of Diagnostic and 
Statistical Manual of Mental Disorders is published in the future.
    One commenter urged VA to replace the term ``Mood Disorder with 
Psychotic Features'' with ``Bipolar Disorder (types I and II) With 
Psychotic Features'' and ``Major Depressive Disorder With Psychotic 
Features'' because ``Mood Disorder with Psychotic Features'' does not 
appear as a listed disorder in DSM-IV, published by the American 
Psychiatric Association in 1994. The commenter noted that the 
definition of ``psychosis'' was much broader in the first edition of 
the Diagnostic and Statistical Manual of Mental Disorders (DSM-I), 
published by the American Psychiatric Association in 1952, compared to 
its current usage. The commenter further noted that what we now refer 
to as Bipolar Disorder (types I and II) and Major Depressive Disorder 
were considered psychotic disorders when psychosis was designated as a 
presumptive condition in 1958 by Public Law 85-857, 72 Stat. 1118.
    We have reconsidered whether Mood Disorder with Psychotic Features 
should be included in our definition of ``psychosis'' at all. We 
included it in our proposed definition because that disorder appeared 
in the decision tree for Differential Diagnosis of Psychotic Disorders 
in the DSM-IV. In the preamble to the proposed rule, at 67 FR 63352, we 
stated:

    According to DSM-IV, pages 19 and 694-695, the following mental 
disorders contain at least one of the above-mentioned DSM-IV, 
Appendix A, psychotic symptoms: psychotic disorder due to a general 
medical condition; substance-induced psychotic disorder; 
schizophrenia; schizophreniform disorder; schizoaffective disorder; 
mood disorder with psychotic features; delusional disorder; 
psychotic disorder not otherwise specified; brief psychotic 
disorder; and shared psychotic disorder.

    The proposed rule itself listed these ten disorders as psychoses. 
Neither the DSM-IV nor the DSM-IV-TR, however, lists Mood Disorder with 
Psychotic Features as a psychotic disorder. We consider the actual 
listing of psychotic disorders more significant than the appearance of 
a disorder in the decision tree. The actual listing of psychotic 
disorders in the DSM-IV-TR includes only disorders ``that include 
psychotic symptoms as a prominent aspect of their presentation,'' 
whereas disorders such as Mood Disorder with Psychotic Features ``may 
present with psychotic symptoms as associated features.'' DSM-IV-TR at 
297.
    Upon review of DSM-IV-TR and further consideration, we do not 
believe that Mood Disorder with Psychotic Features, or other disorders 
which may have psychotic features but are not listed in DSM-IV-TR as 
psychoses, should be considered psychoses for purposes of this 
regulation. Psychotic features may be temporary and not recur, but the 
disorders listed as psychoses by the DSM-IV-TR include psychotic 
symptoms as a prominent aspect of their presentation. Psychotic 
features do not necessarily show that the veteran has an actual 
psychosis. By analogy, it would be erroneous to consider a disease that 
has symptoms also found in a cancer, but which is not actually a type 
of cancer, to constitute a cancer for presumptive purposes.
    We recognize that the disorders now referred to as Bipolar Disorder 
(types I and II) and Major Depressive Disorder were once considered 
psychotic disorders. However, we note that DSM-IV-TR states that the 
definition of the term ``psychotic'' has evolved over time, and that at 
least one prior definition (contained in DSM-II, which we note was 
published in 1968) ``was probably far too inclusive.'' (DSM-IV-TR, 
Appendix C, at page 827). We believe that it is appropriate for VA to 
use current scientific knowledge in defining the term psychosis.
    For the reasons stated above, we have not included Mood Disorder 
with Psychotic Features, Bipolar Disorder (types I and II) With 
Psychotic Features, or Major Depressive Disorder With Psychotic 
Features in the definition of psychosis in the final rule.
    Citing page 297 of the DSM-IV-TR, published by the American 
Psychiatric Association in 2000, one commenter noted that catatonic 
behavior is also a psychotic symptom. This commenter suggested that we 
include the following disorders within the definition of psychosis: 
``Catatonic Disorder Due to a General Medical Condition,'' ``Major 
Depressive Disorder [W]ith Catatonic Features,'' ``Bipolar I Disorder 
[W]ith Catatonic Features'' and ``Bipolar II Disorder [W]ith Catatonic 
Features.''
    Our review of DSM-IV-TR confirms the commenter's assertion that 
catatonic behavior is also a psychotic symptom. However, as stated 
above, we do not believe that all disorders presenting with psychotic 
features should be considered psychoses. Only disorders listed by the 
DSM-IV-TR as psychotic disorders should be considered psychoses. We 
therefore decline to accept this suggestion.
    One commenter suggested we add ``dementia with delusions'' to the 
definition of psychosis because dementia is often accompanied by 
psychotic symptoms. That commenter stated that other government or 
private entities could adopt such a definition and use it in other 
contexts. Another commenter suggested we add ``Vascular Dementia with 
Delusions'' to the definition of psychosis because delusions are 
considered a psychotic symptom.
    We decline to adopt the first suggestion because ``dementia with 
delusions'' is not a specific DSM-IV-TR diagnosis. However, Vascular 
Dementia

[[Page 42760]]

With Delusions is a specific DSM-IV-TR diagnosis and its symptoms may 
be psychotic. However, as stated above, we do not believe that all 
disorders presenting with psychotic features should be considered 
psychoses. Only disorders listed by the DSM-IV-TR as psychotic 
disorders should be considered psychoses. We therefore decline to 
accept this suggestion.
    One commenter urged VA to adopt a policy of accepting a treating 
physician's diagnosis as absolute. This suggestion is outside the scope 
of this rulemaking, and we have made no change based on it.
    This commenter also stated that VA should eliminate its proposed 
definition of psychosis and accept evidence of any disorder listed in 
DSM-IV as sufficient for adjudication purposes. DSM-IV lists numerous 
mental disorders that are not classified as psychoses (e.g. anxiety 
disorders). Furthermore, certain presumptions of service connection 
apply to psychoses but not other mental disorders. We therefore make no 
change based on this comment.
    This commenter also stated that VA should not create any definition 
of psychosis because it would create more red tape and place an 
additional burden on veterans. For the reasons stated above and in the 
supplementary information for the proposed rule, we believe that 
adopting a clear definition of psychosis will actually make the claims 
process simpler for veterans seeking service connection for a 
psychosis. We therefore decline to make any change based on this 
comment.
    We have made one non-substantive formatting change to proposed 38 
CFR 3.384 by listing the different psychoses in alphabetical order. We 
believe this change will make it easier for the reader to quickly 
locate a particular psychotic disorder.
    In the preamble to the proposed rule, we noted that a statute 
authorizing health care, specifically 38 U.S.C. 1702, uses the term 
``psychosis'' and that new Sec.  3.384 was intended to affect the 
application of that statute. The references to health care, and to 
section 1702 in particular, were erroneously included in the preamble, 
and we wish to clarify that, as stated in the proposed regulation text, 
new Sec.  3.384 only concerns presumptions of service connection under 
38 CFR part 3, which governs adjudication with respect to compensation, 
pension, dependency and indemnity compensation, and burial benefits, 
but not health care.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 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 final 
rule is exempt from the initial and final regulatory flexibility 
analysis requirements of sections 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Order 
classifies a rule as a significant regulatory action requiring review 
by the Office of Management and Budget if it meets any one of a number 
of specified conditions, including: Having an annual effect on the 
economy of $100 million or more, creating a serious inconsistency or 
interfering with an action of another agency, materially altering the 
budgetary impact of entitlements or the rights of entitlement 
recipients, or raising novel legal or policy issues. VA has examined 
the economic, legal, and policy implications of this final rule and has 
concluded that it is a significant regulatory action because it may 
raise novel legal and policy issues under Executive Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any year. This final rule would have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are as follows: 64.101, Burial Expenses Allowance 
for Veterans; 64.109, Veterans Compensation for Service-Connected 
Disability; and 64.110, Veterans Dependency and Indemnity Compensation 
for Service-Connected Death.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Radioactive materials, Veterans, Vietnam.

    Approved: April 18, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
For the reasons set forth in the preamble, 38 CFR part 3 is amended as 
follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

0
2. Section 3.384 is added under the undesignated center heading
    ``Rating Considerations Relative to Specific Diseases'' to read as 
follows:


Sec.  3.384  Psychosis.

    For purposes of this part, the term ``psychosis'' means any of the 
following disorders listed in Diagnostic and Statistical Manual of 
Mental Disorders, Fourth Edition, Text Revision, of the American 
Psychiatric Association (DSM-IV-TR):
    (a) Brief Psychotic Disorder;
    (b) Delusional Disorder;
    (c) Psychotic Disorder Due to General Medical Condition;
    (d) Psychotic Disorder Not Otherwise Specified;
    (e) Schizoaffective Disorder;
    (f) Schizophrenia;
    (g) Schizophreniform Disorder;
    (h) Shared Psychotic Disorder; and
    (i) Substance-Induced Psychotic Disorder.

(Authority: 38 U.S.C. 501(a), 1101, 1112(a) and (b))
[FR Doc. E6-12079 Filed 7-27-06; 8:45 am]
BILLING CODE 8320-01-P