[Federal Register Volume 80, Number 136 (Thursday, July 16, 2015)]
[Rules and Regulations]
[Pages 42040-42042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17417]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AP38


Agency Interpretation of Prosthetic Replacement of a Joint

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs is publishing interpretive 
guidance for diagnostic codes (DC) 5051 through 5056, which establish 
rating criteria for prosthetic implant replacements of joints of the 
musculoskeletal system. The Schedule for Rating Disabilities under 
these DCs allows for a 1-year, 100-percent disability evaluation upon 
prosthetic replacement of a joint. This final rule clarifies that VA's 
longstanding interpretation of DCs 5051 through 5056 is that a 100-
percent evaluation will be in place for a period of one year when the 
total joint, rather than the partial joint, has been replaced by a 
prosthetic implant.

DATES: Effective Date: This final rule is effective July 16, 2015.

FOR FURTHER INFORMATION CONTACT: Stephanie Li, Chief, Regulations Staff 
(211D), Compensation Service, Department of Veterans Affairs, 810 
Vermont Avenue NW., Washington, DC 20420, (202) 461-9700. (This is not 
a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: Diagnostic codes (DCs) 5051 through 5056, 
under 38 CFR 4.71a, govern the Schedule for Rating Disabilities (Rating 
Schedule) for prosthetic replacement of joints under the 
musculoskeletal system. These DCs state that a 100-percent evaluation 
will be sustained for 1 year following the prosthetic replacement of 
the named joint. This period of total disability evaluation is designed 
to provide temporary convalescence for major surgery, such as total 
joint replacement. Following the convalescent period, a Department of 
Veterans Affairs (VA) or VA-approved examination is conducted to 
determine any residual disability, and a new rating evaluation is 
assigned based on such residuals.
    The field of orthopedic medicine has progressed to such a degree 
that total prosthetic replacement of a joint is not always necessary. 
Surgical procedures, sometimes referred to generally as ``joint 
replacements,'' may only require partial replacement of the disabled 
joint.\1\ Partial replacement has the benefit of not requiring the same 
length of time for convalescence.\2\ The progression of this area of 
medical science has raised an issue as to whether a veteran who 
undergoes a partial replacement of a joint is entitled to the 100-
percent rating evaluation during the convalescent period under DCs 5051 
through 5056.
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    \1\ ``Patients with osteoarthritis that is limited to just one 
part of the knee may be candidates for unicompartmental knee 
replacement (also called a `partial' knee replacement).'' 
``Unicompartmental Knee Replacement,'' American Academy of 
Orthopedic Surgeons, Ortho Info, 1 (June 2010), http://orthoinfo.aaos.org/topic.cfm?topic=A00585 (last visited Mar. 19, 
2014).
    \2\ Id.
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    VA has long interpreted ``joint replacement,'' as used in Sec.  
4.71a, to mean total joint replacement. Recently, the United States 
Court of Appeals for Veterans Claims (Veterans Court) issued a 
precedential panel decision upholding VA's interpretation of Sec.  
4.71a. In Hudgens v. Gibson, 26 Vet. App. 558 (2014), the Veterans 
Court upheld the Board of Veterans' Appeals decision that DC 5055 
applies only to total knee prosthetic replacements. The Veterans Court 
determined that the plain language of DC 5055 was unambiguous. Id. at 
561. The Veterans Court found that the medical definition of ``knee 
joint'' encompassed three distinct compartments of the knee and that 
``[n]othing in the plain language of the regulation indicates that it 
applies to replacements of less than a complete knee joint . . .''. Id. 
In addition, the Veterans Court cited DC 5054, for hip joint 
prosthesis, as an example of when VA intends to evaluate partial joint 
replacement. Diagnostic Code 5054, also under Sec.  4.71a, provides 
evaluation criteria for ``[p]rosthetic replacement of the head of the 
femur or of the acetabulum'' (italics added), which together make up 
the hip joint. Id. The Veterans Court concluded that ``DC 5055 applies 
only to total knee replacements, as the Secretary has demonstrated in 
other parts of Sec.  4.71(a) [sic] that he is aware of how to include 
partial joint replacements as part of disability rating criteria in 
other parts of Sec.  4.71(a) [sic].'' Id. at 562.
    In view of the above court decision, and VA's longstanding 
interpretation, VA is amending its regulations to clarify that the 
language of Sec.  4.71a, Prosthetic Implants, which refers to 
replacement of

[[Page 42041]]

the named joint, refers to replacement of the joint as a whole, except 
where it is otherwise stated under DC 5054. To avoid confusion in 
applying these DCs, VA is adding an explanatory note under 38 CFR 
4.71a, directly above DCs 5051 through 5056, which notifies readers 
that ``prosthetic replacement'' means a total, not a partial, joint 
replacement, except as it is otherwise stated under DC 5054.
    This final rule provides interpretive guidance on VA's meaning of 
``prosthetic replacement'' as noted in the preceding discussion and 
consistent with the recent Hudgens v. Gibson decision. This guidance 
does not represent a new agency interpretation or a substantive change 
to the eligibility criteria for any VA benefit; rather, it provides 
notice regarding VA's longstanding interpretation of its regulation on 
prosthetic implants, which the Veterans Court recently upheld. As such, 
VA is publishing this final rule without opportunity for public 
comment.

Administrative Procedure Act

    The Secretary of Veterans Affairs finds that this is an 
interpretive rule, which, under 5 U.S.C. 553(b)(A), VA may promulgate 
without prior opportunity for public comment. See also Perez v. 
Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1206 (2015). This rule merely 
restates VA's longstanding interpretation of its regulation, which the 
Veterans Court upheld. Therefore, a prior opportunity for notice and 
comment is unnecessary. Additionally, based on the above cited 
justification, VA finds good cause to dispense with the delayed-
effective-date requirement of 5 U.S.C. 553(d)(2).

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
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 effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action'' requiring review by the Office of 
Management and Budget (OMB), unless OMB waives such review, as ``any 
regulatory action that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) Materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) Raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of this rulemaking and its impact analysis are available on VA's Web 
site at http://www.va.gov/orpm/, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.''

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). This final rule will directly affect only individuals and will 
not directly affect small entities. Therefore, pursuant to 5 U.S.C. 
605(b), this rulemaking is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

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 one year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

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

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.100, Automobiles and 
Adaptive Equipment for Certain Disabled Veterans and Members of the 
Armed Forces; 64.104, Pension for Non-Service-Connected Disability for 
Veterans; 64.106, Specially Adapted Housing for Disabled Veterans; 
64.109, Veterans Compensation for Service-Connected Disability; 64.116, 
Vocational Rehabilitation for Disabled Veterans.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Robert L. 
Nabors II, Chief of Staff, Department of Veterans Affairs, approved 
this document on July 6, 2015, for publication.

List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

    Dated: July 13, 2015.
William F. Russo,
Acting Director, Office of Regulation Policy & Management, Office of 
the General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 4 as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

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

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

Subpart B--Disability Ratings

0
2. In Sec.  4.71a, add a note preceding the footnote after the table 
``Prosthetic Implants'' to read as follows:


Sec.  4.71a  Schedule of ratings--musculoskeletal system.

* * * * *

PROSTHETIC IMPLANTS

* * * * *

    Note: The term ``prosthetic replacement'' in diagnostic codes 
5051 through 5056 means a total replacement of the named joint. 
However, in DC 5054, ``prosthetic

[[Page 42042]]

replacement'' means a total replacement of the head of the femur or 
of the acetabulum.

* * * * *

0
3. Amend appendix A to part 4 by revising the entries for diagnostic 
codes 5051 through 5056 to read as follows:

Appendix A to Part 4--Table of Amendments and Effective Dates Since 1946
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                           Diagnostic
          Sec.              Code No.
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                              * * * * * * *
                                   5051  Added September 22, 1978. Note
                                          July 16, 2015.
                                   5052  Added September 22, 1978. Note
                                          July 16, 2015.
                                   5053  Added September 22, 1978. Note
                                          July 16, 2015.
                                   5054  Added September 22, 1978. Note
                                          July 16, 2015.
                                   5055  Added September 22, 1978. Note
                                          July 16, 2015.
                                   5056  Added September 22, 1978. Note
                                          July 16, 2015.
 
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[FR Doc. 2015-17417 Filed 7-15-15; 8:45 am]
BILLING CODE 8320-01-P