[Federal Register Volume 82, Number 146 (Tuesday, August 1, 2017)]
[Proposed Rules]
[Pages 35719-35733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15766]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AP88


Schedule for Rating Disabilities; Musculoskeletal System and 
Muscle Injuries

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to revise the 
regulations that involve the Musculoskeletal System within the VA 
Schedule for Rating Disabilities (``VASRD'' or ``Rating Schedule''). VA 
proposes to rename certain diagnostic codes, revise rating criteria, 
give new rating guidance, add new codes, and remove obsolete codes. 
These revisions would incorporate medical terminology more recent than 
the last comprehensive review, as well as simplify the rating process.

DATES: Comments must be received by VA on or before October 2, 2017.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
(This is not a toll-free number.) Comments should indicate that they 
are submitted in response to ``RIN 2900-AP88--Schedule for Rating 
Disabilities; Musculoskeletal System and Muscle Injuries.'' Copies of 
comments received will be available for public inspection in the Office 
of Regulation Policy and Management, Room 1063B, between the hours of 
8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). 
Please call (202) 461-4902 for an appointment. (This is not a toll-free 
number.) In addition, during the comment period, comments may be viewed 
online through the Federal Docket Management System (FDMS) at 
www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Gary Reynolds, M.D., Regulations Staff 
(211C), Compensation Service, Veterans Benefits Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 
20420, (202) 461-9700. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: The National Defense Authorization Act of 
2004, secs. 1501-07, Public Law 108-136, 117 Stat. 1392, established 
the Veterans' Disability Benefits Commission (the ``Commission''). 
Section 1502 of Public Law 108-136 mandated the Commission to study 
ways to improve the disability compensation system for military 
veterans. The Commission consulted with the Institute of Medicine (IOM) 
to review the medical aspects of current compensation policies. In 
2007, the IOM released its report titled ``A 21st Century System for 
Evaluating Veterans for Disability Benefits.'' (Michael McGeary et al. 
eds.2007).
    The IOM report was notable in several respects. The IOM observed 
that, in part, the Rating Schedule was inadequate in areas because it 
contained obsolete information and did not

[[Page 35720]]

sufficiently integrate current and accepted diagnostic procedures. In 
addition, the IOM observed that the current body system organization of 
the Rating Schedule does not reflect current knowledge of the 
relationships between conditions and comorbidities.
    Following the release of the IOM report, VA created a 
musculoskeletal system workgroup. The goals adopted by the workgroup 
were to: (1) Improve and update the process that VA uses to assign 
levels of disability after it grants service connection; (2) improve 
the fairness in adjudicating disability benefits for service-connected 
veterans; and (3) invite public participation. The workgroup was co-
chaired by the Veterans Health Administration and Veterans Benefits 
Administration. The workgroup was comprised of subject matter experts 
from VA, the Department of Defense, and medical academia. The workgroup 
held a public forum in Washington, DC, during August 2010, where it 
discussed current regulations and possible revisions. The workgroup 
held a second public forum in Washington, DC, during June 2012, where 
it shared a draft proposal for comment.
    The workgroup met periodically during and after the public forums 
to continue its revision efforts. The regulation-drafting phase, which 
began in April 2012, continues through the publication of this proposed 
rule. With this rulemaking, VA proposes to remove obsolete diagnostic 
codes, modernize the names of selected diagnostic codes, revise 
descriptions and criteria, and add new diagnostic codes.

The Focus of This Revision

    Consistent with the IOM's recommendations, the proposed amendments 
rename conditions to reflect current medicine, remove obsolete 
conditions, clarify ambiguities in existing rating criteria, and add 
conditions that previously did not have diagnostic codes. However, VA 
experienced greater difficulty revising existing rating criteria in 
many areas. After significant time and research, since an earnings loss 
study had not been conducted in time to be considered during the 
workgroup and rule-drafting phases, VA concluded there was only a 
narrow set of circumstances where the medical literature clearly 
supported the proposed changes in the absence of earnings loss 
information.
    As such, VA modified the approach recommended by the IOM for this 
body system. Only peer-reviewed articles where at least one measureable 
proxy for reduced earnings capacity was studied were deemed acceptable 
to justify a reduction in the level or duration of ratings for specific 
conditions (e.g., time to return to work, activity limitations related 
to work, and/or participation restriction(s) from work-related tasks). 
Therefore, at this time, VA proposes changes to only two codes 
(diagnostic codes 5054 and 5055) where the criteria changes would 
result in such a reduction.

I. Proposed Changes to Sec.  4.71a

A. Nomenclature Changes to Existing Diagnostic Codes: 5003, 5012-15, 
5023, 5024 and 5242

    In its review of the musculoskeletal body system, VA identified a 
number of diagnostic codes (DCs) with terms that are outdated or 
unclear. As such, it proposes to retitle these DCs to reflect current 
medical practice and nomenclature. There are no proposed substantive 
changes to the rating criteria for these eight DCs.
    VA proposes to retitle DC 5003, currently ``Arthritis, degenerative 
(hypertrophic or osteoarthritis)'' as ``Degenerative arthritis, other 
than post-traumatic.'' No other language or criteria changes are 
proposed for this diagnostic code.
    Current DCs 5012 and 5015 refer to ``Bones, new growths of, 
malignant'' and ``Bones, new growths of, benign,'' respectively. VA 
proposes to replace the term ``new growths of'' in these DCs with the 
current medical term, ``neoplasm.'' See S. Terry Canale and James H. 
Beaty, Campbell's Operative Orthopedics 859-86 (benign) and 909-45 
(malignant) (12th ed. 2013). DC 5012 would be titled ``Bones, neoplasm, 
malignant, primary or secondary'' to indicate that both primary and 
secondary neoplasms are rated under this DC to ensure consistent and 
accurate evaluation. Non-substantive revisions to the language in the 
note under DC 5012 are also proposed; specifically, VA proposes to add 
the term ``prescribed'' to the phrase ``therapeutic procedure'' to 
ensure that readers understand VA will only consider medically-directed 
therapy when rating DC 5012.
    VA proposes to rename DC 5013, which refers to ``Osteoporosis, with 
joint manifestations,'' as ``Osteoporosis, residuals of.'' VA proposes 
a similar revision to current DC 5014 by renaming ``Osteomalacia'' as 
``Osteomalacia, residuals of.'' Both osteoporosis and osteomalacia, in 
and of themselves, do not have any disabling characteristics. See 
Kelley's Textbook of Rheumatology 1730-1750 (Gary S. Firestein and 
Ralph C. Budd et al. eds.,10th ed. 2017). Rather, it is the residuals 
of these conditions that VA evaluates. Thus, adding the reference 
``residuals of'' provides more accurate instruction and information to 
rating personnel.
    Current DC 5023 refers to ``Myositis ossificans.'' VA proposes to 
update this DC to reflect the latest medical terminology and rename DC 
5023 as ``Heterotopic ossification.'' See Essentials of Physical 
Medicine and Rehabilitation: Musculoskeletal Disorders, Pain and 
Rehabilitation, 691-95 (Walter R. Frontera and Julie K. Silver et al. 
eds., 2d ed. 2008). Additionally, VA proposes to revise DC 5024, 
currently named, ``Tenosynovitis,'' to ``Tenosynovitis, tendinitis, 
tendinosis, or tendinopathy.'' These newly-added conditions are 
commonly seen in the veteran population and represent similar forms of 
disability. See Kelley's Textbook of Rheumatology, supra at 587-604. 
This update would assist rating personnel in more quickly identifying 
the appropriate DC. Non-substantive revisions to the criteria of DC 
5024 are also proposed.
    Finally, VA proposes to retitle DC 5242, ``Degenerative arthritis 
of the spine'' as ``Degenerative arthritis, degenerative disc disease 
other than intervertebral disc syndrome.'' This change gives rating 
personnel clear guidance whenever they encounter a diagnostic imaging 
report that references degenerative disc disease without mention of 
intervertebral disc syndrome (also known as disc herniation). A non-
substantive revision to the citation accompanying DC 5242 is also 
proposed.

B. Substantive Revisions to Existing Diagnostic Codes: 5002, 5009-5011, 
5051-5056, 5120, 5160, 5170, 5201, 5202, 5255, 5257, 5262, and 5271

    In addition to modernizing the names of certain DCs, VA also 
proposes substantive (i.e., not related to nomenclature) revisions to a 
number of existing DCs, to include some instances of changes in the 
evaluation criteria.
1. Diagnostic Code 5002
    The first substantive revision proposed for Sec.  4.71a involves DC 
5002, ``Arthritis rheumatoid (atrophic) As an active process.'' VA 
proposes to retitle this code as ``Multi-joint arthritis (except post-
traumatic and gout), 2 or more joints, as an active process.'' VA 
proposes this change to include a greater number of systemic arthritis 
processes that cause multisystem effects besides rheumatoid arthritis. 
The title would employ the phrase ``multi-joint'' rather than 
``polyarthritis'' because polyarthritis requires 4 or more joints to

[[Page 35721]]

be involved. VA would provide, in Note (1), a non-exhaustive list of 
conditions rated under this code (rheumatoid arthritis, psoriatic 
arthritis, spondyloarthropathies, etc.). See Kelley's Textbook of 
Rheumatology, supra at 615-616. VA would also remove the language 
currently in DC 5002 regarding chronic residuals and, in Note (2), 
provide a directive to rate chronic residuals under DC 5003. VA 
proposes this change because the current language used for chronic 
residuals in DC 5002 is very similar to DC 5003 and its removal would 
simplify the schedule. Finally, VA would redesignate the code's current 
note as Note (3) and add a prohibition that prevents combining ratings 
from active process with DC 5003, instead directing rating personnel to 
assign the higher evaluation.
2. Diagnostic Code 5009
    VA proposes that diagnostic code 5009, currently titled 
``Arthritis, other types (specify),'' be retitled as ``Other specified 
forms of arthropathy (excluding gout).'' VA proposes this change to 
capture other disease processes that cause joint injury, but are not 
necessarily captured within the rating schedule. The current language 
accompanying DC 5009, concerning how to rate diagnostic codes 5004-
5009, would be redesignated as Note (2) and would be revised to give 
guidance on how to rate both acute phase and chronic residuals. A new 
Note (1) would provide a non-exhaustive list of conditions that should 
be rated under this diagnostic code. No other changes are proposed for 
this code.
3. Diagnostic Code 5010
    Diagnostic code 5010 currently states: ``Arthritis, due to trauma, 
substantiated by X-ray findings: Rate as arthritis, degenerative.'' VA 
proposes to change the title and criteria to ``Post-traumatic 
arthritis: Rate as limitation of motion, dislocation, or other 
specified instability under the affected joint. If there are 2 or more 
joints affected, each rating shall be combined in accordance with Sec.  
4.25.'' VA proposes the title change to distinguish between joint 
conditions arising from traumatic causes and joint conditions resulting 
from systemic processes. This distinction is important, as the natural 
history (and ultimately the severity of disability) differs between 
joint conditions stemming from trauma as opposed to joint conditions 
related to systemic processes.
    VA proposes the change in criteria to provide a more accurate 
approach to rating joint injuries resulting from trauma. The trauma 
process is a different event for each affected joint, as opposed to a 
condition such as rheumatoid arthritis, where the same systemic process 
can affect more than one joint in the same manner. VA also proposes the 
directive to combine ratings for separate joints affected by traumatic 
injury in accordance with Sec.  4.25 so there will be no 
misunderstanding for rating personnel when encountering this situation. 
It is important to note that, as a result of these changes, DC 5010 
would no longer rate joints affected by trauma-related arthritis under 
the criteria of DC 5003.
4. Diagnostic Code 5011
    The next proposed substantive revision to Sec.  4.71a is DC 5011, 
currently named ``Bones, caisson disease of.'' VA proposes to first 
revise the title of this DC to ``Decompression illness'' to ensure use 
of the most modern terminology. See Richard D. Vann et al., 
``Decompression Illness,'' 377 Lancet 153-64 (2010). VA also proposes 
to revise the rating criteria for DC 5011, which currently direct 
rating personnel to ``Rate as arthritis, cord involvement, or deafness, 
depending on the severity of disabling manifestations.'' The proposed 
changes would provide more detailed instructions on how to rate 
manifestations associated with decompression illness that are outside 
of the musculoskeletal system (i.e., not arthritic). It is well 
established among medical experts that the most common residual 
manifestations from decompression illness involve the vestibule-
cochlear system (e.g., hearing impairment, dizziness, vertigo), 
respiratory system (e.g., obstructive lung disease, pulmonary blebs) or 
neurologic system (e.g., peripheral neuropathy, stroke, paralysis). As 
such, VA proposes to direct rating personnel to consider evaluations 
within the auditory system for vestibular residuals, the respiratory 
system for pulmonary barotrauma residuals, and the neurologic system 
for cerebrovascular accident residuals. Id.
5. Diagnostic Codes 5051-5056
    Since the last revision to the musculoskeletal system schedule, the 
medical community has been employing a new treatment approach, joint 
resurfacing, for selected joints (particularly the hip and knee). There 
are important similarities between joint resurfacing and prosthetic 
joint replacement. Joint resurfacing takes about the same time to 
perform and the recovery/rehabilitation periods are similar to 
comparable prosthetic joint replacement. This means that the impact on 
earnings capacity caused by the convalescence and rehabilitation from 
joint resurfacing is comparable to prosthetic joint replacement. 
However, there are significant differences with joint resurfacing, 
including: (1) Joint resurfacing preserves more of the original 
anatomy; and, (2) in most cases, joint resurfacing restores more of the 
original joint function than the prosthetic joint replacement. 
Therefore, less residual disability typically results from joint 
resurfacing as compared to prosthetic joint replacement. Currently, VA 
does not compensate for the disability associated with joint 
resurfacing, despite the similar impact on earnings capacity as 
prosthetic joint replacement.
    To rectify this disparity, VA proposes to incorporate joint 
resurfacing within DCs 5054 and 5055 (hip and knee replacement, 
respectively), since more research assessing convalescence, 
rehabilitation, and functional recovery concerns these two joints. The 
DC titles would be revised to incorporate resurfacing, and the 100 
percent evaluation for prosthetic hip and knee replacement would also 
apply to resurfacing these two joints. However, after the 100 percent 
evaluation period ends, further evaluation would assess the limitation 
of motion DCs for the hip and knee, rather than the prosthetic joint 
replacement of either the hip or knee, because, as previously stated, 
there is less of an expectation of residual disability with joint 
resurfacing. A note would be added to DCs 5054 and 5055 directing 
rating personnel, at the conclusion of the 100 percent evaluation 
period, to evaluate hip joint resurfacing claims under DCs 5250-5255 
and knee joint resurfacing claims under DCs 5256-5262.
    VA currently evaluates total joint replacements by assigning a 100 
percent evaluation for 1 year following implantation of a prosthesis. 
After 1 year, VA assigns a minimum evaluation, with higher evaluations 
for complications or residuals such as weakness, pain, and limitation 
of motion. The evaluations assigned under these DCs are intended to 
encompass all musculoskeletal residuals under Sec.  4.71a. Separate 
evaluations may be assigned for residuals such as scars or neurological 
deficits pursuant to Sec.  4.14.
    VA proposes two modifications in this regard. First, a note prior 
to DCs 5051 to 5056 would clarify that separate evaluations may not be 
assigned under Sec.  4.71a for the joint that was resurfaced or 
replaced by a prosthesis unless otherwise directed. This note is 
intended to clarify current practice and ensure consistent application 
of these DCs among rating personnel.

[[Page 35722]]

    In addition, for DCs 5054 and 5055, VA proposes to reduce the 100 
percent evaluation period from 1 year to 4 months. Current medical 
practice for these conditions has recovery timelines that in most cases 
permit return to work well short of 1 year. In a review of studies 
looking at factors affecting return to work, the average time for 
return to work was between 1.1 and 13.9 weeks for hip arthroplasty and 
between 8.0 and 12.0 weeks for knee arthroplasty. See Claire Tilbury et 
al., ``Return to work after total hip and knee arthroplasty: a 
systematic review,'' 53 Rheumatology 512-525 (2014).
6. Diagnostic Code 5120
    VA currently evaluates amputations of the arm that involve 
disarticulation under DC 5120 as 90 percent disabling regardless of 
dominant arm involvement At the outset, VA proposes to revise the name 
of this DC to ``Complete amputation, upper extremity,'' as this is a 
more accurate description of the amputation level and site.
    Second, VA proposes to create two levels of disability under DC 
5120 for rating purposes. One level would be titled ``Disarticulation 
(involving complete removal of the humerus only)'' and would provide a 
90 percent compensation level for either major or minor extremity 
involvement; this level would be consistent with the current 
compensation level under DC 5120. However, the second level, to be 
titled ``Forequarter amputation (involving complete removal of the 
humerus along with any portion of the scapula, clavicle, and/or 
ribs),'' would provide for 100 percent compensation for either dominant 
or non-dominant extremity involvement. See Canale, supra at 659-71. 
Although both levels represent complete amputation of the upper 
extremity, VA believes a higher level of compensation is warranted for 
forequarter amputation because it is a more extensive amputation than 
disarticulation and results in a more significant occupational impact.
7. Diagnostic Code 5160
    For reasons similar to those discussed immediately above, VA 
proposes two revisions of DC 5160, which pertains to amputation of the 
thigh at the level of disarticulation with loss of extrinsic pelvic 
girdle muscles. First, VA proposes to retitle this DC to ``Complete 
amputation, lower extremity'' to more accurately describe the 
amputation level and site.
    VA also proposes to create two levels of criteria for rating 
purposes. One would be titled ``Disarticulation (involving complete 
removal of the femur and intrinsic pelvic musculature only)'' and would 
provide a 90 percent rating that is consistent with the current rating 
under DC 5160. The second level, titled ``Trans-pelvic amputation 
(involving complete removal of the femur and intrinsic pelvic 
musculature along with any portion of the pelvic bones),'' would 
provide for a 100 percent rating. See Canale, supra at 651-58. VA 
believes that a higher level of compensation is warranted for trans-
pelvic amputation because it is a more extensive amputation than 
disarticulation and results in a more significant occupational impact.
    VA also proposes to insert a note under DC 5160 directing rating 
personnel to separately evaluate residuals involving other body 
systems, such as bowel or bladder impairment, under the appropriate 
diagnostic code.
8. Diagnostic Code 5170
    Current DC 5170 refers to ``Toes, all, amputation of, without 
metatarsal loss.'' VA proposes to add the phrase ``or transmetatarsal, 
amputation of, with up to half of metatarsal loss'' to include a 
residual of toe amputation that causes similar disability. See Canale, 
supra at 622-23. No change to the current level of compensation is 
proposed.
9. Diagnostic Code 5201
    VA currently assigns ratings for limitation of motion of the arm at 
the shoulder where motion is limited to 25 degrees from the side, 45 
degrees (midway between the side and shoulder level), or 90 degrees (at 
the shoulder level).
    VA proposes to clarify the terminology used in these criteria by 
adding ranges of motion of the shoulder. Specifically, VA proposes to 
assign a 40 percent rating for a major joint, or 30 percent for a minor 
joint, where flexion and/or abduction is limited to 25 degrees from the 
side. VA also proposes to assign a 30 percent rating for a major joint, 
or 20 percent for a minor joint, where motion is limited to ``midway 
between side and shoulder level,'' defined as flexion and/or abduction 
limited to 45 degrees or less. Finally, VA proposes to assign a 20 
percent rating for a major or minor joint where motion is limited ``at 
shoulder level,'' defined as flexion and/or abduction limited to 90 
degrees or less.
    These changes are not intended to alter the rating criteria. The 
proposed changes simply clarify the specific ranges of motion that 
qualify as limitations to ensure rating personnel consistently apply 
these criteria.
10. Diagnostic Code 5202
    Currently, VA assigns a 20 percent rating for either shoulder joint 
when there are infrequent episodes of dislocation of the humerus at the 
scapulohumeral joint, with guarding of movement only at the shoulder 
level. VA proposes to define ``the shoulder level'' as flexion and/or 
abduction at 90 degrees. This change is not intended to alter the 
rating criteria. The proposed change simply clarifies the specific 
ranges of motion that qualify as limitations to ensure rating personnel 
consistently apply these criteria.
11. Diagnostic Code 5255
    VA currently evaluates malunion of the femur by assigning a 30 
percent rating for a ``marked knee or hip disability,'' a 20 percent 
rating for a ``moderate knee or hip disability,'' and a 10 percent 
rating for a ``slight knee or hip disability.'' These criteria are 
subjective and the terminology is vague, resulting in inconsistent 
ratings.
    Therefore, VA proposes removing this terminology and replacing it 
with an instruction to rate malunion of the femur as a knee or hip 
disability, whichever is predominant, under existing DCs that contain 
objective criteria. Specifically, this condition may be rated under DCs 
5256 (Knee, ankylosis of), 5257 (Knee, other impairment of), 5260 (Leg, 
limitation of flexion of), 5261 (Leg, limitation of extension of), 5250 
(Hip, ankylosis of), 5251 (Thigh, limitation of extension of), 5252 
(Thigh, limitation of flexion of), 5253 (Thigh, impairment of), or 5254 
(Hip, flail joint). This change would ensure that rating personnel 
consistently evaluate this disability based on objective criteria.
12. Diagnostic Code 5257
    VA currently assigns ratings for recurrent subluxation or lateral 
instability of the knee based on whether the condition is slight (10 
percent), moderate (20 percent), or severe (30 percent). These criteria 
are subjective and the terminology is vague, resulting in VA assigning 
inconsistent ratings.
    When the condition involves patellar instability of the knee (due 
to recurrent patellar subluxation or patellar dislocation), one can 
determine the severity of functional impairment in large part by 1) the 
presence, or absence of, anatomic abnormalities (e.g., direct damage to 
patellofemoral ligament complex, ``flake'' fractures, or abnormalities 
affecting the patella and/or femoral trochlea); and 2) whether 
conservative treatment prevents recurrent instability. See Alexis C.

[[Page 35723]]

Colvin and Robin V. West, ``Current Concepts Review: Patellar 
Instability,'' J. Bone & Joint Surgery--Am. Volume 90: 2751-62 (2008).
    Instability or laxity of the knee that involves other stabilizing 
structures of the knee such as the collateral ligaments (medial or 
lateral) or the cruciate ligaments (anterior or posterior) are given a 
``grade'' depending upon the amount of translation, in millimeters, of 
the joint (e.g., a grade 1 injury of the posterior cruciate ligament 
(PCL) is represented by 0 to 5 millimeters (mm) of translation). T. K. 
Kakarlapudi et al., ``Knee instability: isolated and complex,'' 34 Br. 
J. Sports Med. 395-400 (2000). Resulting functional impairment depends 
upon the grade of the injury and whether surgical intervention is 
required. Id. The higher the number grade is, the more severe the 
injury; that is, grade 1 would represent the least severe injury, grade 
2 would be a more severe injury, and grade 3 would be the most severe 
injury.
    Therefore, VA proposes replacing the current subjective terms with 
the following objective criteria: a 30 percent rating would be assigned 
for persistent grade 3 instability despite operative intervention and 
for which ambulation requires both bracing and an assistive device 
(e.g., cane(s), crutch(es), or a walker), as prescribed by a physician; 
or, in the case of patellar instability, persistent instability despite 
surgical repair (whether after the primary subluxation/dislocation 
event or due to recurrent instability). A 20 percent would be assigned 
for persistent grade 3 instability without operative intervention, but 
when ambulation requires both bracing and an assistive device (e.g., 
cane(s), crutch(es), or a walker), as prescribed by a physician; or, in 
the case of patellar instability, recurrent instability persists due to 
one or more documented underlying anatomic abnormalities, without 
surgical repair. A 10 percent evaluation would be assigned for 
persistent grade 1, 2, or 3 instability which requires an ambulation 
assistive device or bracing, as prescribed by a physician; or, in the 
case of patellar instability, recurrent instability persists without 
documented underlying anatomic abnormalities, without surgical repair. 
These criteria would take into account both the grade of the injury, as 
well as functional impairment resulting from the injury.
    VA also proposes a note defining the grading of instability. Note 
(1) would specify that grade 1 instability requires 0-5 mm of joint 
translation, while grade 2 requires translation of 6-10 mm, and grade 3 
requires joint translation equal to or greater than 11 mm. These levels 
of instability or laxity are based upon modern medical practice. See 
Campbell's Operative Orthopedics, supra at 2157.
    VA proposes a second note to clarify what constitutes surgical 
repair of patellar instability. Note (2) would specify that any 
operative procedure which does not involve actual anatomical structural 
repair would not qualify as surgical repair for the purposes of 
compensation. This note is specifically designed to exclude procedures 
that are not designed to repair instability or subluxation, such as 
joint aspiration, arthroscopy to remove loose bodies, and so forth.
    In addition, DC 5257 currently refers to ``lateral instability.'' 
Under current practice, any instability or laxity of the knee is 
evaluated under this code. Therefore, VA proposes to remove the term 
``lateral,'' so that this code also encompasses other specified forms 
of instability and/or laxity.
13. Diagnostic Code 5262
    VA currently rates malunion of the tibia and fibula by assigning a 
30 percent rating for a ``marked knee or ankle disability,'' a 20 
percent rating for a ``moderate knee or ankle disability,'' and a 10 
percent rating for a ``slight knee or ankle disability.'' These 
criteria are subjective and the terminology is vague. This results in 
rating personnel assigning inconsistent ratings under these criteria.
    Therefore, VA proposes removing this terminology and replacing it 
with an instruction to rate malunion of the tibia or fibula as a knee 
or ankle disability, whichever is predominant, under existing DCs that 
contain objective criteria. Specifically, this condition may be 
evaluated under DCs 5256 (Knee, ankylosis of), 5257 (Knee, other 
impairment of), 5260 (Leg, limitation of flexion of), 5261 (Leg, 
limitation of extension of), 5270 (Ankle, ankylosis of), or 5271 
(Ankle, limited motion of). This change would ensure that rating 
personnel consistently assign evaluations based on objective criteria.
    Another condition commonly claimed for disability compensation is 
medial tibial stress syndrome (MTSS), also known as ``shin splints.'' 
It is a benign but painful condition that is typically diagnosed simply 
by history and physical examination, though imaging studies such as 
plain radiographs, bone scans, or magnetic resonance imaging (MRI) can 
be used in borderline cases, as well as to diagnose other conditions. 
The vast majority of cases respond to conservative therapy, such as 
rest, shock-absorbing insoles, and electrowave shock therapy. The rare 
persistent cases that do not respond to conservative treatment can be 
treated with surgical intervention. To that end, VA proposes to modify 
the criteria for DC 5262 to account for MTSS as well as associated 
conditions. See M. Reshef and D. Guelich, ``Medial Tibial Stress 
Syndrome,'' 31 Clinical Sports Med. 273-90 (2012).
14. Diagnostic Code 5271
    VA currently assigns ratings for limited motion of the ankle 
depending upon whether the limitation is moderate (10 percent) or 
marked (20 percent). These criteria are subjective and the terminology 
is vague, resulting in inconsistent evaluations.
    Therefore, VA proposes to define marked limitation of motion as 
less than 5 degrees dorsiflexion or less than 10 degrees plantar 
flexion. VA also proposes to define moderate limitation of motion as 
less than 15 degrees dorsiflexion or less than 30 degrees plantar 
flexion. As VA currently uses these standards to define marked and 
moderate, this change is intended as a clarification of current policy 
and would ensure consistent application of these criteria among rating 
personnel.

C. Proposed New Diagnostic Codes

1. Diagnostic Code 5244
    The current Rating Schedule does not provide instructions for 
rating complete traumatic paralysis, i.e., paraplegia or quadriplegia; 
however, this disability is not uncommon in the veteran population. As 
such, VA proposes the addition of DC 5244, ``Traumatic paralysis, 
complete.''
    The proposed criteria for DC 5244 would direct personnel to rate 
paraplegia, or functional loss of the lower limbs and trunk, under DC 
5110. DC 5110 applies to loss of use of both feet and provides for a 
100 percent disability rating with entitlement to special monthly 
compensation. Proposed DC 5244 would also provide instructions for 
rating quadriplegia, or paralysis of all four limbs (i.e., the entire 
body below the neck). Specifically, VA proposes to rate quadriplegia 
under both DC 5109, loss of use of both hands, and DC 5110, loss of use 
of both feet, and combine. In practice, a veteran with service-
connected quadriplegia would be entitled to two 100 percent ratings, 
which combine under 38 CFR 4.25 to a total evaluation of 100 percent. 
The veteran would also be entitled to special monthly compensation.
2. Diagnostic Code 5285
    VA currently evaluates foot injuries not specifically listed in 
Sec.  4.71a under

[[Page 35724]]

DC 5284 as ``Foot injuries, other.'' Plantar fasciitis, a foot 
disability seen in the veteran population, is generally rated under 
this DC. However, unlike other unlisted foot injuries and conditions, 
which can often result in a variety of signs and symptoms with varying 
degrees of disability, plantar fasciitis, and its functional effects, 
are very well defined. See Sports Medicine and Arthroscopic Surgery of 
the Foot and Ankle 83-93 (Amol Saxena ed., 2013). Plantar fasciitis, 
also known as ``jogger's heel,'' is generally characterized by heel 
pain due to inflammation. Craig C. Young et al., ``Plantar fasciitis,'' 
Medscape Reference (Feb. 4, 2014), http://emedicine.medscape.com/article/86143-overview (last visited April 15, 2014). However, even at 
its most severe, this condition involves an otherwise structurally 
intact foot.
    There are a variety of both surgical and non-surgical treatments 
that may relieve the primary symptoms of plantar fasciitis. 
Conservative measures are always employed first, and frequently include 
icing, stretching, non-steroidal anti-inflammatory drug (NSAID) 
therapy, strapping and taping, and/or over-the-counter orthotics. Id. 
at http://emedicine.medscape.com/article/86143-treatment. Other 
nonsurgical treatments may include injections, physical therapy, and 
custom orthotics. Id. Studies have reported a resolution incidence of 
up to 90 percent with nonsurgical measures. Id. In severe cases, non-
surgical measures fail and surgery is required.
    Individuals who respond to treatment, whether surgical or non-
surgical, have generally no more than slight functional limitation due 
to plantar fasciitis. Further, such limitation is more associated with 
the treatment(s) required to check the pain (e.g., limitation of 
physical activities (such as running), injections, icing, use of 
NSAIDS, surgical residuals, etc.) than with the actual disability 
itself. For individuals who do not respond to treatment, the resulting 
limitations may vary, but are generally more pronounced for those who 
have bilateral, rather than unilateral, plantar fasciitis.
    Given the foregoing, VA proposes to create a new DC, namely DC 
5285, ``Plantar fasciitis,'' to rate this condition. VA intends to 
evaluate this disability based on a combination of extent (one foot or 
both feet) and response to treatment (responsive or nonresponsive). For 
individuals whose plantar fasciitis does not respond to both surgical 
and non-surgical treatment, VA proposes to award 30 percent disability 
rating if both feet are affected and a 20 percent disability rating if 
one foot is affected. For an individual whose plantar fasciitis (either 
unilateral or bilateral) is responsive to treatment (either non-
surgical or surgical), VA proposes a 10 percent disability rating.
    Finally, consistent with other foot injuries and disabilities, VA 
intends to include a note with DC 5285 that would instruct rating 
personnel to assign a 40 percent rating in cases where there is actual 
loss of use of the foot. In cases where a veteran's bilateral plantar 
fasciitis has not improved following surgery and there is actual loss 
of use of one foot, this would result in a 40 percent evaluation for 
that foot and a 20 percent evaluation for the other foot that was not 
responsive to treatment, but did not result in loss of use.

D. Removal of Existing Diagnostic Codes

    VA proposes to remove three obsolete codes from Sec.  4.71a. The 
first two, DC 5018 and DC 5020, refer to ``Hydrarthrosis, 
intermittent'' and ``Synovitis,'' respectively. Both hydrarthrosis and 
synovitis are signs found on physical examination. The disability from 
a specific condition that causes either hydrarthrosis or synovitis 
(e.g., rheumatoid arthritis, psoriatic arthritis, or pseudogout) is 
captured within current evaluation criteria for the specific disabling 
condition. See Kelley's Textbook of Rheumatology, supra at 588. Given 
that VA's disability compensation system is designed to compensate for 
disabilities, it is not appropriate to list either sign as its own DC.
    For similar reasons, VA proposes to remove DC 5022, 
``Periostitis.'' Current medical terminology refers to ``periosteal 
reaction'' in order to include all of the possible causes, such as 
bleeding, infection, or tumor. In contrast, ``periostitis'' refers to a 
non-specific inflammatory process due to a number of diagnoses that 
could potentially result in service connection. Since an evaluation 
should be conducted under the primary diagnosis, rather than a 
radiographic finding such as periostitis, VA intends to remove DC 5022. 
See Radiologic-Pathologic Correlations from Head to Toe: Understanding 
the Manifestations of Disease 668 (Nicholas C. Gourtsoyiannis and Pablo 
R. Ros eds., 2005).

II. Proposed Changes to Sec.  4.73

    Section 4.73 provides VA's schedule for rating muscle injuries. 
Following its review of this body system, VA proposes the addition of 
two DCs for conditions that previously required analogous rating.
    The first proposed code, DC 5330, would apply to residuals of 
rhabdomyolysis, in which muscle tissue breaks down rapidly. See Janice 
L. Zimmerman and Michael C. Shen, ``Rhabdomyolysis,'' 144(3) CHEST 
1058-65 (2013). Although VA proposes to rate this condition based on 
residual impairment to the affected muscle group(s), it believes that a 
specific DC is needed as there is no current instruction to rating 
personnel as to how to evaluate this condition. Furthermore, in 
addition to provide rating instructions to evaluate each affected 
muscle group, VA proposes to include a note directing rating personnel 
to separately evaluate any chronic renal complications that may be 
associated with this condition.
    The second DC VA proposes to add to Sec.  4.73 is DC 5331, 
``Compartment syndrome.'' Similar to DC 5330, VA proposes to rate 
compartment syndrome, a condition in which there is increased pressure 
within the muscles, according to the affected muscle group(s). See 
Canale, supra at 2311-21. The addition of this DC would provide clear 
instructions to rating personnel; it would also eliminate the need for 
analogous coding for a condition seen in the veteran population.
    In addition, VA proposes to add a second note at the beginning of 
Sec.  4.73 directing that rating personnel consider the objective 
criteria contained in Sec.  4.56 when determining whether a muscle 
disability is slight, moderate, moderately severe, or severe under DCs 
5301 to 5323. Although Sec.  4.56 references these DCs, the levels of 
severity are not defined in Sec.  4.73, nor does that section currently 
reference Sec.  4.56. Therefore, VA proposes to add this note for a 
cross-reference.

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,'' which requires review by the Office 
of Management and Budget (OMB), as ``any regulatory action that is 
likely to result in a rule that may:

[[Page 35725]]

(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.''
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this proposed rule, 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 the 
rulemaking and its impact analysis are available on VA's Web site at 
http://www1.va.gov/orpm/, by following the link for ``VA Regulations 
Published.''

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 proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Paperwork Reduction Act

    Although this document contains provisions constituting a 
collection of information under the provisions of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.), no new or proposed revised 
collections of information are associated with this proposed rule. The 
information collection requirements are currently approved by the 
Office of Management and Budget (OMB) and have been assigned OMB 
control numbers 2900-0747, 2900-0776, 2900-0778, and 2900-0802 through 
2900-0813. While no modifications to these forms are made by this 
rulemaking, the total incremental cost to all respondents is estimated 
to be $198,002.21 during the first year. See Regulatory Impact Analysis 
for a full explanation.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would 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 proposed rule would not affect any small entities. 
Only VA beneficiaries could be directly affected. Therefore, pursuant 
to 5 U.S.C. 605(b), this proposed rule would be exempt from the initial 
and final regulatory flexibility analysis requirements of sections 603 
and 604.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are 64.013, Veterans Prosthetic Appliances; 
64.109, Veterans Compensation for Service-Connected Disability; and 
64.110, Veterans Dependency and Indemnity Compensation for Service-
Connected Death.

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. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on June 20, 2017, for publication.

    Dated: July 21, 2017.
Michael Shores,
Director, Regulation Policy & Management, Office of the Secretary, 
Department of Veterans Affairs.

List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

    For the reasons set out in the preamble, VA proposes to amend 38 
CFR part 4 as follows:

PART 4--SCHEDULE FOR RATING DISABILITIES

Subpart B--Disability Ratings

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

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

0
2. Amend Sec.  4.71a as follows:
0
a. Revise diagnostic codes 5002, 5003, 5009-5015, 5023-5024, 5054, 
5055, 5120, 5160, 5170, 5201, 5202, 5242, 5255, 5257, 5262, and 5271.
0
b. Remove diagnostic codes 5018, 5020, and 5022.
0
c. Add new introduction note to diagnostic codes 5051 through 5056 and 
add new diagnostic codes 5244 and 5285.
    The revisions and additions read as follows:


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

                  Acute, Subacute, or Chronic Diseases
------------------------------------------------------------------------
                                                              Rating
------------------------------------------------------------------------
 
                              * * * * * * *
5002 Multi-joint arthritis (except post-traumatic and
 gout), 2 or more joints, as an active process:
 
                              * * * * * * *
    One or two exacerbations a year in a well-                        20
     established diagnosis..............................
    Note (1): Examples of conditions rated using this
     diagnostic code include, but are not limited to,
     rheumatoid arthritis, psoriatic arthritis, and
     spondyloarthropathies.
    Note (2): For chronic residuals, rate under
     diagnostic code 5003.
    Note (3): The ratings for the active process will
     not be combined with the residual ratings for
     limitation of motion, ankylosis, or diagnostic code
     5003. Instead, assign the higher evaluation.
5003 Degenerative arthritis, other than post-traumatic:
 
                              * * * * * * *
5009 Other specified forms of arthropathy (excluding
 gout).

[[Page 35726]]

 
    Note (1): Other specified forms of arthropathy
     include, but are not limited to, Charcot
     neuropathic, hypertrophic, crystalline, and other
     autoimmune arthropathies.
    Note (2): With the types of arthritis, diagnostic
     codes 5004 through 5009, rate the acute phase under
     diagnostic code 5002; rate any chronic residuals
     under diagnostic code 5003.
5010 Post-traumatic arthritis: Rate as limitation of
 motion, dislocation, or other specified instability
 under the affected joint. If there are 2 or more joints
 affected, each rating shall be combined in accordance
 with Sec.   4.25.
5011 Decompression illness: Rate manifestations under
 the appropriate diagnostic code within the affected
 body system, such as arthritis for musculoskeletal
 residuals; auditory system for vestibular residuals;
 respiratory system for pulmonary barotrauma residuals;
 and neurologic system for cerebrovascular accident
 residuals.
5012 Bones, neoplasm, malignant, primary or secondary...             100
    Note: The 100 percent rating will be continued for 1
     year following the cessation of surgical, X-ray,
     antineoplastic chemotherapy or other prescribed
     therapeutic procedure. If there has been no local
     recurrence or metastases, rate based on residuals.
5013 Osteoporosis, residuals of.
5014 Osteomalacia, residuals of.
5015 Bones, neoplasm, benign.
 
                              * * * * * * *
5023 Heterotopic ossification.
5024 Tenosynovitis, tendinitis, tendinosis or
 tendinopathy.
    Evaluate the diseases under diagnostic codes 5013
     through 5024 as degenerative arthritis, based on
     limitation of motion of affected parts. However,
     evaluate gout under diagnostic code 5003.
 
                              * * * * * * *
------------------------------------------------------------------------


                   Prosthetic Implants and Resurfacing
------------------------------------------------------------------------
                                                      Rating
                                         -------------------------------
                                               Major           Minor
------------------------------------------------------------------------
Note: When an evaluation is assigned for joint resurfacing or the
 prosthetic replacement of a joint under diagnostic codes 5051-5056, an
 additional rating under Sec.   4.71a may not also be assigned for that
 joint, unless otherwise directed.
------------------------------------------------------------------------
 
                              * * * * * * *
5054 Hip, resurfacing or replacement
 (prosthesis)
Prosthetic replacement of the head of
 the femur or of the acetabulum:
    For 4 months following implantation   ..............             100
     of prosthesis or resurfacing.......
    Note: At the conclusion of the 100
     percent evaluation period, evaluate
     resurfacing under diagnostic codes
     5250 through 5255.
 
                              * * * * * * *
5055 Knee, resurfacing or replacement
 (prosthesis)
Prosthetic replacement of knee joint:
    For 4 months following implantation   ..............             100
     of prosthesis or resurfacing.......
    Note: At the conclusion of the 100
     percent evaluation period, evaluate
     resurfacing under diagnostic codes
     5256 through 5262.
 
                              * * * * * * *
------------------------------------------------------------------------


                      Amputations: Upper Extremity
------------------------------------------------------------------------
                                                      Rating
                                         -------------------------------
                                               Major           Minor
------------------------------------------------------------------------
Arm, amputation of:
    5120 Complete amputation, upper
     extremity:
        Forequarter amputation                       100             100
         (involving complete removal of
         the humerus along with any
         portion of the scapula,
         clavicle, and/or ribs).........
        Disarticulation (involving                    90              90
         complete removal of the humerus
         only)..........................
 
                              * * * * * * *
------------------------------------------------------------------------


                      Amputations: Lower Extremity
------------------------------------------------------------------------
                                                              Rating
------------------------------------------------------------------------
Thigh, amputation of:

[[Page 35727]]

 
    5160 Complete amputation, lower extremity
        Trans-pelvic amputation (involving complete                  100
         removal of the femur and intrinsic pelvic
         musculature along with any portion of the
         pelvic bones)..................................
        Disarticulation (involving complete removal of                90
         the femur and intrinsic pelvic musculature
         only)..........................................
        Note: Separately evaluate residuals involving
         other body systems (e.g., bowel impairment,
         bladder impairment) under the appropriate
         diagnostic code.
 
                              * * * * * * *
    5170 Toes, all, amputation of, without metatarsal                 30
     loss or transmetatarsal, amputation of, with up to
     half of metatarsal loss............................
 
                              * * * * * * *
------------------------------------------------------------------------


                          The Shoulder and Arm
------------------------------------------------------------------------
                                                      Rating
                                         -------------------------------
                                               Major           Minor
------------------------------------------------------------------------
 
                              * * * * * * *
5201 Arm, limitation of motion of:
    Flexion and/or abduction limited to               40              30
     25[deg] from side..................
    Midway between side and shoulder                  30              20
     level (flexion and/or abduction
     limited to 45[deg])................
    At shoulder level (flexion and/or                 20              20
     abduction limited to 90[deg])......
5202 Humerus, other impairment of:
    Loss of head of (flail shoulder)....              80              70
    Nonunion of (false flail joint).....              60              50
    Fibrous union of....................              50              40
    Recurrent dislocation of at           ..............  ..............
     scapulohumeral joint:
    With frequent episodes and guarding               30              20
     of all arm movements...............
    With infrequent episodes, and                     20              20
     guarding of movement only at
     shoulder level (flexion and/or
     abduction at 90[deg])..............
    Malunion of:
    Marked deformity....................              30              20
    Moderate deformity..................              20              20
 
                              * * * * * * *
------------------------------------------------------------------------


                                The Spine
------------------------------------------------------------------------
                                                              Rating
------------------------------------------------------------------------
 General Rating Formula for Diseases and Injuries of the
                          Spine
 
                              * * * * * * *
5242 Degenerative arthritis, degenerative disc disease
 other than intervertebral disc syndrome (also, see
 diagnostic code 5003)..................................
 
                              * * * * * * *
5244 Traumatic paralysis, complete:
    Paraplegia: Rate under diagnostic code 5110.
    Quadriplegia: Rate separately under diagnostic codes
     5109 and 5110 and combine evaluations in accordance
     with Sec.   4.25.
------------------------------------------------------------------------
                            The Hip and Thigh
------------------------------------------------------------------------
 
                              * * * * * * *
5255 Femur, impairment of:
    Fracture of shaft or anatomical neck of:
        With nonunion, with loose motion (spiral or                   80
         oblique fracture)..............................
        With nonunion, without loose motion, weight                   60
         bearing preserved with aid of brace............
        Fracture of surgical neck of, with false joint..              60
    Malunion of:
        Evaluate under diagnostic codes 5256, 5257,
         5260, or 5261 for the knee, or 5250-5254 for
         the hip, whichever results in the highest
         evaluation.
------------------------------------------------------------------------
                            The Knee and Leg
------------------------------------------------------------------------
 
                              * * * * * * *
5257 Knee, other impairment of:

[[Page 35728]]

 
    Recurrent subluxation or instability:
        Persistent grade 3 instability despite operative              30
         intervention and a physician prescribes both
         bracing and assistive device (e.g., cane(s),
         crutch(es), or a walker) for ambulation........
        Persistent grade 3 instability without operative              20
         intervention, and a physician prescribes both
         bracing and assistive device (e.g., cane(s),
         crutch(es), or a walker) for ambulation........
        Persistent grade 1, 2, or 3 instability and a                 10
         physician prescribes an assistive device (e.g.,
         cane(s), crutch(es), or a walker) or bracing
         for ambulation.................................
    Patellar instability:
        With documented surgical repair, persistent                   30
         instability either after the primary
         subluxation/dislocation event or due to
         recurrent instability..........................
        Without surgical repair, recurrent instability                20
         with one or more documented underlying anatomic
         abnormalities (e.g., direct damage to
         patellofemoral ligament complex, ``flake''
         fractures, or abnormalities affecting the
         patella and/or femoral trochlea)...............
        Without surgical repair, recurrent instability                10
         without documented underlying anatomic
         abnormalities..................................
    Note (1): Grade 1 is defined as 0-5 mm of joint
     translation, grade 2 is defined as 6-10 mm of joint
     translation, and grade 3 is defined as joint
     translation of equal to or greater than 11 mm.
    Note (2): For patellar instability, a surgical
     procedure that does not involve repair of one or
     more anatomic structures that contribute to the
     underlying instability shall not qualify as
     surgical repair for compensation purposes
     (including, but not limited to, arthroscopy to
     remove loose bodies and joint aspiration).
 
                              * * * * * * *
5262 Tibia and fibula, impairment of:
    Nonunion of, with loose motion, requiring brace.....              40
    Malunion of:
        Evaluate under diagnostic codes 5256, 5257,
         5260, or 5261 for the knee, or 5270 or 5271 for
         the ankle, whichever results in the highest
         evaluation.
    Medial tibial stress syndrome (MTSS), or shin
     splints:
        With imaging evidence (X-rays, bone scan, or                  30
         MRI), requiring treatment for no less than 12
         consecutive months and unresponsive to shoe
         orthotics, other conservative treatment, or
         surgery, both lower extremities................
        With imaging evidence (X-rays, bone scan, or                  20
         MRI), requiring treatment for no less than 12
         consecutive months, and unresponsive to shoe
         orthotics, other conservative treatment, or
         surgery, one lower extremity...................
        With imaging evidence (X-rays, bone scan, or                  10
         MRI), requiring treatment for no less than 12
         consecutive months, and unresponsive to both
         shoe orthotics and other conservative
         treatment, one or both lower extremities.......
        Treatment less than 12 consecutive months, one                 0
         or both lower extremities......................
 
                              * * * * * * *
------------------------------------------------------------------------
                                The Ankle
------------------------------------------------------------------------
 
                              * * * * * * *
5271 Ankle, limited motion of:
    Marked (less than 5 degrees dorsiflexion or less                  20
     than 10 degrees plantar flexion)...................
    Moderate (less than 15 degrees dorsiflexion or less               10
     than 30 degrees plantar flexion)...................
 
                              * * * * * * *
------------------------------------------------------------------------
                                The Foot
------------------------------------------------------------------------
 
                              * * * * * * *
5285 Plantar fasciitis:
    With symptoms not relieved by both non-surgical and
     surgical treatment:
        bilateral.......................................              30
        unilateral......................................              20
    With symptoms relieved by either non-surgical or                  10
     surgical treatment, unilateral or bilateral........
    Note: With actual loss of use of the foot, rate 40
     percent.
------------------------------------------------------------------------
                                The Skull
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------

(Authority: 38 U.S.C. 1155)
* * * * *
0
3. In Sec.  4.73, add new introduction notes (1) and (2) and add new 
diagnostic codes 5330 and 5331 to read as follows:


Sec.  4.73  Schedule of ratings--muscle injuries.

    Note (1): When evaluating any claim involving muscle injuries 
resulting in loss of use of any extremity or loss of use of both 
buttocks (diagnostic code 5317, Muscle Group XVII), refer to Sec.  
3.350 of this chapter to determine whether the veteran may be 
entitled to special monthly compensation.


     Note (2): Ratings of slight, moderate, moderately severe, or 
severe for diagnostic

[[Page 35729]]

codes 5301 through 5323 will be determined based upon the criteria 
contained in Sec.  4.56.

* * * * *

                              Miscellaneous
------------------------------------------------------------------------
                                                              Rating
------------------------------------------------------------------------
 
                              * * * * * * *
5330 Rhabdomyolysis, residuals of.
    Rate each affected muscle group separately and
     combine in accordance with Sec.   4.25.
    Note: Separately evaluate any chronic renal
     complications within the appropriate body system.
5331 Compartment syndrome.
    Rate each affected muscle group separately and
     combine in accordance with Sec.   4.25.
------------------------------------------------------------------------


(Authority: 38 U.S.C. 1155)

0
4. Amend Appendix A to Part 4 as follows:
0
a. In Sec.  4.71a, revise diagnostic codes 5002, 5003, 5012, 5024, 
5051-5056, 5255, 5257;
0
b. In Sec.  4.71a, add diagnostic codes 5009-5011, 5013-5015, 5018, 
5020, 5022-5023, 5120, 5160, 5170, 5201, 5202, 5242, 5244, 5262, 5271 
and 5285;
0
c. In Sec.  4.73, add new introduction note and diagnostic codes 5330 
and 5331.
    The revisions read as follows:

Appendix A to Part 4--Table of Amendments and Effective Dates Since 
1946

------------------------------------------------------------------------
                                 Diagnostic Code
              Sec.                     No.
------------------------------------------------------------------------
4.71a
 
                              * * * * * * *
                                           5002   Evaluation March 1,
                                                   1963; title,
                                                   criteria, note
                                                   [insert effective
                                                   date of final rule]
                                           5003   Added July 6, 1950;
                                                   title [insert
                                                   effective date of
                                                   final rule]
 
                              * * * * * * *
                                           5009   Title, evaluation,
                                                   note [insert
                                                   effective date of
                                                   final rule].
                                           5010   Title, criteria
                                                   [insert effective
                                                   date of final rule].
                                           5011   Title, criteria
                                                   [insert effective
                                                   date of final rule].
                                           5012   Criterion March 10,
                                                   1976; title, note
                                                   [insert effective
                                                   date of final rule].
                                           5013   Title [insert
                                                   effective date of
                                                   final rule].
                                           5014   Title [insert
                                                   effective date of
                                                   final rule].
                                           5015   Title [insert
                                                   effective date of
                                                   final rule].
                                           5018   Removed [insert
                                                   effective date of
                                                   final rule].
                                           5020   Removed [insert
                                                   effective date of
                                                   final rule].
                                           5022   Removed [insert
                                                   effective date of
                                                   final rule].
                                           5023   Title [insert
                                                   effective date of
                                                   final rule].
                                           5024   Criterion March 1,
                                                   1963; title, criteria
                                                   [insert effective
                                                   date of final rule].
 
                              * * * * * * *
                                           5051   Added September 22,
                                                   1978; note [insert
                                                   effective date of
                                                   final rule].
                                           5052   Added September 22,
                                                   1978; note [insert
                                                   effective date of
                                                   final rule].
                                           5053   Added September 22,
                                                   1978; note [insert
                                                   effective date of
                                                   final rule].
                                           5054   Added September 22,
                                                   1978; title,
                                                   criterion, and note
                                                   [insert effective
                                                   date of final rule].
                                           5055   Added September 22,
                                                   1978; title,
                                                   criterion, and note
                                                   [insert effective
                                                   date of final rule].
                                           5056   Added September 22,
                                                   1978; note [insert
                                                   effective date of
                                                   final rule].
 
                              * * * * * * *
                                           5120   Title, criterion
                                                   [insert effective
                                                   date of final rule].
                                           5160   Title, criterion, note
                                                   [insert effective
                                                   date of final rule].
 
                              * * * * * * *
                                           5170   Title [insert
                                                   effective date of
                                                   final rule].
 
                              * * * * * * *
                                           5201   Criterion [insert
                                                   effective date of
                                                   final rule].
                                           5202   Criterion [insert
                                                   effective date of
                                                   final rule].
 
                              * * * * * * *
                                           5242   Title [insert
                                                   effective date of
                                                   final rule]
 
                              * * * * * * *
                                           5244   Added [insert
                                                   effective date of
                                                   final rule].

[[Page 35730]]

 
 
                              * * * * * * *
                                           5255   Criterion July 6,
                                                   1950; criterion
                                                   [insert effective
                                                   date of final rule].
 
                              * * * * * * *
                                           5257   Evaluation July 6,
                                                   1950; criterion and
                                                   note [insert
                                                   effective date of
                                                   final rule].
 
                              * * * * * * *
                                           5262   Criterion [insert
                                                   effective date of
                                                   final rule].
 
                              * * * * * * *
                                           5271   Criterion [insert
                                                   effective date of
                                                   final rule].
 
                              * * * * * * *
                                           5285   Added [insert
                                                   effective date of
                                                   final rule].
 
                              * * * * * * *
4.73...........................  ...............  Introduction NOTE
                                                   criterion July 3,
                                                   1997; second NOTE
                                                   added [insert
                                                   effective date of
                                                   final rule].
 
                              * * * * * * *
                                           5330   Added [insert
                                                   effective date of
                                                   final rule].
                                           5331   Added [insert
                                                   effective date of
                                                   final rule].
------------------------------------------------------------------------

0
5. Amend Appendix B to Part 4 as follows:
0
a. Revise diagnostic codes 5002, 5003, 5009-5015, 5023, 5024, 5054, 
5055, 5120, 5160, 5170 and 5242;
0
b. Add diagnostic codes 5244, 5285, 5330, and 5331; and
0
c. Remove diagnostic codes 5018, 5020 and 5022.
    The revisions read as follows:

Appendix B to Part 4--Numerical Index of Disabilities

------------------------------------------------------------------------
        Diagnostic Code No.
------------------------------------------------------------------------
                       THE MUSCULOSKELETAL SYSTEM
                  Acute, Subacute, or Chronic Diseases
------------------------------------------------------------------------
 
                              * * * * * * *
5002..............................  Multi-joint arthritis (except post-
                                     traumatic and gout), 2 or more
                                     joints, as an active process.
5003..............................  Degenerative arthritis, other than
                                     post-traumatic.
 
                              * * * * * * *
5009..............................  Other specified forms of arthropathy
                                     (excluding gout).
5010..............................  Post-traumatic arthritis.
5011..............................  Decompression illness.
5012..............................  Bones, neoplasm, malignant, primary
                                     or secondary.
5013..............................  Osteoporosis, residuals of.
5014..............................  Osteomalacia, residuals of.
5015..............................  Bones, neoplasm, benign.
 
                              * * * * * * *
5023..............................  Heterotopic ossification.
5024..............................  Tenosynovitis, tendinitis,
                                     tendinosis or tendinopathy.
 
                              * * * * * * *
5054..............................  Hip, resurfacing or replacement
                                     (prosthesis).
5055..............................  Knee, resurfacing or replacement
                                     (prosthesis).
 
                              * * * * * * *
------------------------------------------------------------------------
                      AMPUTATIONS: UPPER EXTREMITY
------------------------------------------------------------------------
Arm, amputation of:
    5120..........................  Complete amputation, upper
                                     extremity.
 
                              * * * * * * *
------------------------------------------------------------------------
                      AMPUTATIONS: LOWER EXTREMITY
------------------------------------------------------------------------
Thigh, amputation of:
    5160..........................  Complete amputation, lower
                                     extremity.
 

[[Page 35731]]

 
                              * * * * * * *
    5170..........................  Toes, all, amputation of, without
                                     metatarsal loss or transmetatarsal,
                                     amputation of, with up to half of
                                     metatarsal loss.
 
                              * * * * * * *
------------------------------------------------------------------------
                                  SPINE
------------------------------------------------------------------------
 
                              * * * * * * *
5242..............................  Degenerative arthritis, degenerative
                                     disc disease other than
                                     intervertebral disc syndrome (also,
                                     see either 5003 or 5010).
 
                              * * * * * * *
5244..............................  Traumatic paralysis, complete.
 
                              * * * * * * *
------------------------------------------------------------------------
                                THE FOOT
------------------------------------------------------------------------
 
                              * * * * * * *
5285..............................  Plantar fasciitis.
 
                              * * * * * * *
------------------------------------------------------------------------
                             MUSCLE INJURIES
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
                              Miscellaneous
------------------------------------------------------------------------
 
                              * * * * * * *
5330..............................  Rhabdomyolysis, residuals of.
5331..............................  Compartment syndrome.
 
                              * * * * * * *
------------------------------------------------------------------------

0
6. Amend Appendix C to Part 4 as follows:
0
a. Revise the entries for Amputation, Arthritis, New growths, Myositis 
ossificans, Tenosynovitis, Prosthetic Implants, and Hip;
0
b. Add entries in alphabetical order for Spine, Traumatic paralysis, 
complete; Plantar fasciitis; Rhabdomyolysis; and Compartment syndrome; 
and
0
c. Remove entries for Hydroarthrosis, intermittent; Synovitis; and 
Periostitis.
    The revisions read as follows:

Appendix C to Part 4--Alphabetical Index of Disabilities



------------------------------------------------------------------------
                                                            Diagnostic
                                                             Code No.
------------------------------------------------------------------------
 
                              * * * * * * *
Amputation:
    Arm:
        Complete amputation, upper extremity............            5120
        Above insertion of deltoid......................            5121
        Below insertion of deltoid......................            5122
    Digits, five of one hand............................            5126
    Digits, four of one hand:
        Thumb, index, long and ring.....................            5127
        Thumb, index, long and little...................            5128
        Thumb, index, ring and little...................            5129
        Thumb, long, ring and little....................            5130
        Index, long, ring and little....................            5131
    Digits, three of one hand:
        Thumb, index and long...........................            5132
        Thumb, index and ring...........................            5133
        Thumb, index and little.........................            5134
        Thumb, long and ring............................            5135
        Thumb, long and little..........................            5136
        Thumb, ring and little..........................            5137

[[Page 35732]]

 
        Index, long and ring............................            5138
        Index, long and little..........................            5139
        Index, ring and little..........................            5140
        Long, ring and little...........................            5141
    Digits, two of one hand:
        Thumb and index.................................            5142
        Thumb and long..................................            5143
        Thumb and ring..................................            5144
        Thumb and little................................            5145
        Index and long..................................            5146
        Index and ring..................................            5147
        Index and little................................            5148
        Long and ring...................................            5149
        Long and little.................................            5150
        Ring and little.................................            5151
    Single finger:
        Thumb...........................................            5152
        Index finger....................................            5153
        Long finger.....................................            5154
        Ring finger.....................................            5155
        Little finger...................................            5156
    Forearm:
        Above insertion of pronator teres...............            5123
        Below insertion of pronator teres...............            5124
    Leg:
        With defective stump............................            5163
        Not improvable by prosthesis controlled by                  5164
         natural knee action............................
        At lower level, permitting prosthesis...........            5165
        Forefoot, proximal to metatarsal bones..........            5166
        Toes, all, amputation of, without metatarsal                5170
         loss or transmetatarsal, amputation of, with up
         to half of metatarsal loss.....................
        Toe, great......................................            5171
        Toe, other than great, with removal metatarsal              5172
         head...........................................
        Toes, three or more, without metatarsal                     5173
         involvement....................................
    Thigh:
        Complete amputation, lower extremity............            5160
        Upper third.....................................            5161
        Middle or lower thirds..........................            5162
 
                              * * * * * * *
Arthritis:
        Degenerative, other than post-traumatic.........            5003
        Gonorrheal......................................            5004
        Other specified forms (excluding gout)..........            5009
        Pneumococcic....................................            5005
        Post-traumatic..................................            5010
        Multi-joint (except post-traumatic and gout)....            5002
        Streptococcic...................................            5008
        Syphilitic......................................            5007
        Typhoid.........................................            5006
Arthropathy.............................................            5009
 
                              * * * * * * *
Bones:
    Neoplasm, benign....................................            5015
    Neoplasm, malignant, primary or secondary...........            5012
    Shortening of the lower extremity...................            5275
 
                              * * * * * * *
Colitis, ulcerative.....................................            7323
Compartment syndrome....................................            5331
 
                              * * * * * * *
Dacryocystitis..........................................            6031
Decompression illness...................................            5011
 
                              * * * * * * *
Hernia:
    Femoral.............................................            7340
    Hiatal..............................................            7346
    Inguinal............................................            7338
    Muscle..............................................            5326
    Ventral.............................................            7339
Heterotopic ossification................................            5023

[[Page 35733]]

 
Hip:
    Flail joint.........................................            5254
 
                              * * * * * * *
Hodgkin's disease.......................................            7709
Hydronephrosis..........................................            7509
 
                              * * * * * * *
Myocardial infarction...................................            7006
Myositis................................................            5021
 
                              * * * * * * *
Osteomalacia, residuals of..............................            5014
 
                              * * * * * * *
Osteoporosis, residuals of..............................            5013
 
                              * * * * * * *
Paralysis:
    Accommodation.......................................            6030
    Agitans.............................................            8004
    Complete, traumatic.................................            5244
 
                              * * * * * * *
Pericarditis............................................            7002
Peripheral vestibular disorders.........................            6204
 
                              * * * * * * *
Plague..................................................            6307
Plantar fasciitis.......................................            5285
 
                              * * * * * * *
Prosthetic implants:
    Ankle replacement...................................            5056
    Elbow replacement...................................            5052
    Hip, resurfacing or replacement.....................            5054
    Knee, resurfacing or replacement....................            5055
 
                              * * * * * * *
Retinitis...............................................            6006
Rhabdomyolysis, residuals of............................            5330
 
                              * * * * * * *
Spinal stenosis.........................................            5238
Spine:
    Degenerative arthritis, degenerative disc disease               5242
     other than intervertebral disc syndrome............
 
                              * * * * * * *
Syndromes:
    Chronic Fatigue Syndrome (CFS)......................            6354
    Cushing's...........................................            7907
    Meniere's...........................................            6205
    Raynaud's...........................................            7117
    Sleep Apnea.........................................            6847
Syphilis................................................            6310
 
                              * * * * * * *
Tenosynovitis, tendinitis, tendinosis or tendinopathy...            5024
 
                              * * * * * * *
------------------------------------------------------------------------

[FR Doc. 2017-15766 Filed 7-31-17; 8:45 am]
 BILLING CODE 8320-01-P