[Federal Register Volume 71, Number 172 (Wednesday, September 6, 2006)]
[Rules and Regulations]
[Pages 52457-52460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14732]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AL26


Schedule for Rating Disabilities; Guidelines for Application of 
Evaluation Criteria for Certain Respiratory and Cardiovascular 
Conditions; Evaluation of Hypertension With Heart Disease

AGENCY: Department of Veterans Affairs.

[[Page 52458]]


ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
Schedule for Rating Disabilities by adding guidelines for the 
evaluation of certain respiratory and cardiovascular conditions and by 
explaining that hypertension will be evaluated separately from 
hypertensive and other types of heart diseases.

DATES: Effective Date: This amendment is effective October 6, 2006.
    Applicability Date: The provisions of this final rule shall apply 
to all applications for benefits received by VA on or after the 
effective date of this final rule.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, 
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 August 22, 2002, VA published in the 
Federal Register (67 FR 54394) a proposal to amend those portions of 
the Schedule for Rating Disabilities that address cardiovascular and 
respiratory conditions by providing guidelines for the evaluation of 
these conditions and by explaining that hypertension will be evaluated 
separately from hypertensive and other types of heart diseases. 
Interested persons were invited to submit written comments on or before 
October 21, 2002. We received a combined comment from the American 
College of Chest Physicians, the American Thoracic Society, and the 
National Association for Medical Direction of Respiratory Care.
    VA currently uses the ratio of FEV-1 (Forced Expiratory Volume in 
one second) to FVC (Forced Vital Capacity), or FEV-1/FVC ratio, to 
evaluate certain respiratory conditions. Proposed 38 CFR 4.96(d)(7) 
would direct raters to consider a decreased FEV-1/FVC ratio to be 
normal if the FEV-1 is greater than 100 percent. The rationale was that 
in that case the FVC would also be high (better than normal), so a 
decreased ratio would not indicate pathology. The commenter suggested 
that we not use the ratio but, rather, use 100 percent of predicted 
value. Because a decreased ratio could indicate pathology, but not 
disability, the commenter suggested we delete the statement in the 
preamble to the proposed rule that a decreased ratio is not indicative 
of pathology. Because the statement noted by the commenter was not part 
of the proposed regulatory language, but was made in the preamble to 
the proposed rule, it would have had no regulatory effect. 
Nevertheless, we agree with the rationale of this suggestion. 
Therefore, we will address the commenter's suggestion by changing the 
regulatory language in Sec.  4.96(d)(7) to the following: ``If the FEV-
1 and the FVC are both greater than 100 percent, do not assign a 
compensable evaluation based on a decreased FEV-1/FVC ratio.''
    Chronic bronchitis (diagnostic code 6600), pulmonary emphysema 
(diagnostic code 6603), chronic obstructive pulmonary disease 
(diagnostic code 6604), interstitial lung disease (diagnostic codes 
6825-6833), and restrictive lung disease (diagnostic codes 6840-6845) 
are evaluated primarily on the basis of pulmonary function tests 
(PFT's). However, these conditions may also be evaluated based on 
alternative evaluation criteria, which may include measures of the 
maximum exercise capacity; the presence of pulmonary hypertension 
(documented by echocardiogram or cardiac catheterization), cor 
pulmonale, or right ventricular hypertrophy; episode(s) of respiratory 
failure; and a requirement for outpatient oxygen therapy. For example, 
a 100-percent evaluation for these conditions may be based on a maximum 
exercise capacity test result of less than 15 ml/kg/min oxygen 
consumption (with cardiac or respiratory limitation), and a 60-percent 
evaluation may be based on a maximum exercise capacity test result of 
15 to 20 ml/kg/min oxygen consumption (with cardiac or respiratory 
limitation). We proposed that PFT's be required to evaluate this group 
of respiratory conditions except, among other exceptions, when the 
results of a maximum exercise capacity test are of record and are 20 
ml/kg/min or less. We also proposed that if a maximum exercise capacity 
test is not of record, the veteran's disability evaluation would be 
based on alternative criteria. The commenter stated that since most of 
the patients with these respiratory conditions have a low exercise 
tolerance, using the results of only effort-dependent tests would make 
it easy for some marginal patients to qualify for compensation for 
their respiratory condition. The commenter stated that exercise tests 
should be considered maximal and should be performed after PFT results 
do not fully explain symptomatology.
    The vast majority of veterans with respiratory diseases are 
evaluated on the basis of PFT results. Since the disability due to 
respiratory disease in veterans ranges from minimal to very severe, and 
veterans of all ages and all degrees of physical conditioning undergo 
examinations for respiratory disability, it would be speculative to say 
that most have a low exercise tolerance. The regulations do not require 
that a maximum exercise capacity test be conducted in any case, and it 
is not routinely conducted. If there is already a maximum exercise 
capacity test of record, and the results are 20 ml/kg/min or less, 
evaluation (at a 60- or 100-percent level, depending on the exact 
results) may be based on these results. If no maximum exercise capacity 
test is of record, as would be true in most cases, this regulation 
directs that evaluation be based on the alternative criteria. In any 
given case, the examiner may request, based on clinical judgment, that 
a maximum exercise capacity test be conducted, such as in cases where 
the PFT's do not fully explain symptomatology. However, the maximum 
exercise capacity test is not available in some medical facilities, and 
evaluation will properly be based in some cases on the clinician's 
assessment of severity based on history, physical findings, and 
available laboratory tests. We therefore make no change based on this 
comment.
    The commenter stated that the diagnostic codes in the VA rating 
schedule for the listed conditions in the proposed rule were confusing 
and suggested that VA use the International Classification of Diseases, 
Ninth Revision, Clinical Modification (ICD-9-CM) diagnostic coding 
system that is used throughout the United States in the health care 
delivery system. For several reasons, we believe that using ICD-9-CM 
codes is not a reasonable option.
    First, ICD-9-CM and the VA rating schedule serve very different 
purposes. The ICD-9-CM is used by medical professionals in diagnosing 
medical conditions. The rating schedule is used by VA personnel in 
assigning evaluations to conditions that have been diagnosed by medical 
professionals for VA compensation purposes. The rating schedule is not 
simply a listing of conditions and symptoms. It includes evaluation 
criteria for each of the more than 700 disabilities listed. VA also 
rates disabilities not listed in the rating schedule to the most 
analogous disability that is listed there. Also, despite its length, 
the ICD-9-CM does not include certain conditions that VA must commonly 
evaluate, such as specific muscle injuries. For example, the criteria 
under diagnostic code 5301 in the rating schedule govern the evaluation 
of injuries to muscle group I (trapezius, levator scapulae, and 
serratus magnus). There are 23 muscle groups listed in the VA rating 
schedule that govern the evaluation of injuries to those muscle groups, 
and each of the 23

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muscle groups has its own set of evaluation criteria based on the 
severity of the injuries affecting specific muscle functions. Six of 
them refer to various muscle injuries of the shoulder and upper arm. In 
contrast, ICD-9-CM code 959.2 covers injuries to the axilla and 
scapular region of the ``Shoulder and upper arm,'' which is as specific 
as ICD-9-CM gets for these injuries. Over 350,000 veterans are 
currently evaluated under VA's muscle injury criteria, which are 
commonly used for evaluating residuals of combat injuries, such as 
gunshot and shell fragment wounds. Such VA diagnostic codes are 
therefore of great importance to VA in evaluating veterans with combat 
wounds, and also provide useful information for statistical purposes.
    Other problems would arise from replacing VA's diagnostic codes 
with the ICD-9-CM codes. ICD-9-CM's high level of specificity for some 
conditions would make use by raters difficult, since in some cases a 
specific code would apply, while in others only the general code would 
be required for rating purposes. Another issue is that VA has special 
codes for certain combined disabilities--loss or loss of use of an arm 
and loss or loss of use of a leg, for example--which have special 
significance for VA rating purposes, but which have no equivalent in 
ICD-9-CM. For these reasons, VA does not believe that using ICD-9-CM 
codes to indicate veterans' disabilities for purposes of compensation 
would be feasible or useful. We therefore make no change based on this 
comment.
    VA appreciates the comment 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 with the changes noted.

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

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this proposal are 64.104, Pension for Non-Service-
Connected Disability for Veterans, and 64.109, Veterans Compensation 
for Service-Connected Disability.

List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

    Approved: May 26, 2006.
Gordon H. Mansfield,
Deputy 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. Section 4.96 is amended by adding paragraph (d) to read as follows:


Sec.  4.96  Special provisions regarding evaluation of respiratory 
conditions.

* * * * *
    (d) Special provisions for the application of evaluation criteria 
for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845. 
    (1) Pulmonary function tests (PFT's) are required to evaluate these 
conditions except:
    (i) When the results of a maximum exercise capacity test are of 
record and are 20 ml/kg/min or less. If a maximum exercise capacity 
test is not of record, evaluate based on alternative criteria.
    (ii) When pulmonary hypertension (documented by an echocardiogram 
or cardiac catheterization), cor pulmonale, or right ventricular 
hypertrophy has been diagnosed.
    (iii) When there have been one or more episodes of acute 
respiratory failure.
    (iv) When outpatient oxygen therapy is required.
    (2) If the DLCO (SB) (Diffusion Capacity of the Lung for Carbon 
Monoxide by the Single Breath Method) test is not of record, evaluate 
based on alternative criteria as long as the examiner states why the 
test would not be useful or valid in a particular case.
    (3) When the PFT's are not consistent with clinical findings, 
evaluate based on the PFT's unless the examiner states why they are not 
a valid indication of respiratory functional impairment in a particular 
case.
    (4) Post-bronchodilator studies are required when PFT's are done 
for disability evaluation purposes except when the results of pre-
bronchodilator pulmonary function tests are normal or when the examiner 
determines that post-bronchodilator studies should not be done and 
states why.
    (5) When evaluating based on PFT's, use post-bronchodilator results 
in applying the evaluation criteria in the rating schedule unless the 
post-bronchodilator results were poorer than the pre-bronchodilator 
results. In those cases, use the pre-bronchodilator values for rating 
purposes.
    (6) When there is a disparity between the results of different 
PFT's (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced 
Vital Capacity), etc.), so that the level of evaluation would differ 
depending on which test result is used, use the test result that the 
examiner states most accurately reflects the level of disability.
    (7) If the FEV-1 and the FVC are both greater than 100 percent, do 
not assign

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a compensable evaluation based on a decreased FEV-1/FVC ratio.
* * * * *

0
3. Section 4.100 is added to read as follows:


Sec.  4.100  Application of the evaluation criteria for diagnostic 
codes 7000-7007, 7011, and 7015-7020.

    (a) Whether or not cardiac hypertrophy or dilatation (documented by 
electrocardiogram, echocardiogram, or X-ray) is present and whether or 
not there is a need for continuous medication must be ascertained in 
all cases.
    (b) Even if the requirement for a 10% (based on the need for 
continuous medication) or 30% (based on the presence of cardiac 
hypertrophy or dilatation) evaluation is met, METs testing is required 
in all cases except:
    (1) When there is a medical contraindication.
    (2) When the left ventricular ejection fraction has been measured 
and is 50% or less.
    (3) When chronic congestive heart failure is present or there has 
been more than one episode of congestive heart failure within the past 
year.
    (4) When a 100% evaluation can be assigned on another basis.
    (c) If left ventricular ejection fraction (LVEF) testing is not of 
record, evaluate based on the alternative criteria unless the examiner 
states that the LVEF test is needed in a particular case because the 
available medical information does not sufficiently reflect the 
severity of the veteran's cardiovascular disability.


0
4. Section 4.104, diagnostic code 7101 is amended by adding a Note (3) 
to read as follows:


Sec.  4.104  Schedule of ratings--cardiovascular system.

* * * * *
    7101 * * *

    Note (3): Evaluate hypertension separately from hypertensive 
heart disease and other types of heart disease.

* * * * *
 [FR Doc. E6-14732 Filed 9-5-06; 8:45 am]
BILLING CODE 8320-01-P