[Federal Register Volume 84, Number 43 (Tuesday, March 5, 2019)]
[Proposed Rules]
[Pages 7844-7846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03748]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AP16


Schedule for Rating Disabilities; The Genitourinary Diseases and 
Conditions

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule; withdrawal.

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SUMMARY: The Department of Veterans Affairs (VA) is withdrawing a 
document published in the Federal Register on July 28, 2017, proposing 
to amend the portion of its Schedule for Rating Disabilities that 
addresses the genitourinary system.

DATES: The proposed rule published at 82 FR 35140 on July 28, 2017, is 
withdrawn as of March 5, 2019.

ADDRESSES: The docket for this action is available at 
www.regulations.gov or at the Office of Regulation Policy and 
Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. 
NW, Room 1064, Washington, DC 20420.

FOR FURTHER INFORMATION CONTACT: Ioulia Vvedenskaya, M.D., M.B.A., 
Medical Officer, Regulations Staff (211D), 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 telephone number).

SUPPLEMENTARY INFORMATION: On July 28, 2017, VA published in the 
Federal Register the proposed rule for Schedule for Rating 
Disabilities; The Genitourinary Diseases and Conditions. See 82 FR 
35140. During the internal review process of the final rule, VA found 
that an erroneous value and unit of measure were inadvertently included 
in the albumin/creatinine ratio (ACR) in the renal dysfunction rating 
criteria under proposed 38 CFR 4.115a. The erroneous proposed value 
would have resulted in erroneous disability evaluations for multiple 
renal disabilities. Accordingly, VA is withdrawing the proposal and is 
developing a new proposal, to include correct ACR values, which VA 
intends to publish at a later date.
    During the 60-day comment period for the proposed rule, VA received 
six comments. VA appreciates the comments submitted in response to the 
proposed rule. As stated above, VA is withdrawing the proposed rule to 
develop a new proposal; however, we have summarized the comments 
received on the proposed rule below and provided an analysis or 
response to the comments.

I. Comments of General Support

    One commenter supported multiple changes to 38 CFR 4.115a, to 
include using the glomerular filtration rate (GFR) to evaluate both 
renal dysfunction and urinary tract infections. The commenter also 
welcomed the introduction of new diagnostic codes (DCs) 7543 and 7544. 
The same commenter supported new allowances for Special Monthly 
Compensation (SMC) under DCs 7520-7522, but was concerned that these 
positive changes were based on a narrow view of what might influence 
earning capacity. VA has addressed those concerns below.

II. Diagnostic Codes 7508 and 7510

    Two commenters disagreed with VA's proposal to no longer provide a 
30-percent rating for nephrolithiasis and ureterolithiasis that 
requires diet or drug therapy under DCs 7508 and 7510. One commenter 
specifically cited Mayo Clinic dietary recommendations for prevention 
of kidney stone formation and suggestions for medications in order to 
help passing of a kidney stone. But diet or drug therapies are widely 
recommended for the majority of medical diseases and conditions; and 
the remaining requirement for a 30-percent rating under DC 7508 
(invasive or non-invasive procedures more than two times/year) better 
encapsulates, for these conditions, the long-term impairment of earning 
capacity corresponding to a 30-percent rating. We do not plan to make 
any changes based on these comments.

III. Diagnostic Codes 7520 Through 7522

    VA received several comments regarding its proposed changes to DCs 
7520 through 7522.
    One commenter was concerned that the proposed rating criteria for 
erectile dysfunction (ED) do not compensate adequately veterans who are 
sperm donors. VA provides compensation for the average impairment in 
earning capacity due to a disability; there is no requirement that the 
rating schedule address unique scenarios such as the possibility of 
supplemental income from sperm donorship. See 38 CFR 4.1.
    The same commenter suggested that VA should include guidance 
regarding retrograde ejaculation without ED from VA's Adjudication 
Procedures Manual (M21-1) into this regulation for clarity. This 
section of the M21-1 addresses retrograde ejaculation as it relates to 
treatment for benign prostatic hypertrophy (BPH), which is evaluated 
under DC 7527. See M21-1, Part III, Subpart iv, Chapter 4, Section I, 
Topic 2, Paragraph a., available at https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014202/M21-1-Part-III-Subpart-iv-Chapter-4-Section-I-Genitourinary-Disabilities. This procedural guidance is intended to provide 
supplementary information that might be useful to VA rating personnel

[[Page 7845]]

about what ``can'' result from BPH treatment, but is not appropriate 
for inclusion in regulation. We do not plan to make any changes based 
on these comments.
    Another commenter asked VA to provide rationale for its decision to 
remove the provision that permitted rating removal of the penis or 
glans (DCs 7520 and 7521) under 38 CFR 4.115a (specifically, voiding 
dysfunction). Under most circumstances, the removal of the penis or 
glans does not result in voiding dysfunction. Most commonly, the loss 
of penis or glans will affect the ability to void while standing, but 
that is not considered compensable functional impairment under 38 CFR 
4.115a, voiding dysfunction. Santucci, R. et al., ``Penile Fracture and 
Trauma'' (updated Dec. 30, 2015), Medscape https://emedicine.medscape.com/article/456305-overview (last accessed Jan. 15, 
2019). Furthermore, if, in the course of penis or glans surgical 
removal, there is associated urethral trauma resulting in voiding 
dysfunction, it should be separately rated under DC 7518, Urethra, 
stricture of. For these reasons, VA does not find it appropriate to 
direct rating personnel to consider 38 CFR 4.115a when evaluating DCs 
7520 and 7521.
    Two commenters asked VA to provide a rationale for its decision to 
exclude Peyronie's disease from ratable conditions. The commenters 
expressed concern that Peyronie's disease may be caused by trauma as a 
result of an in-service injury and, in some cases, prevent a veteran 
from having sexual intercourse or make it difficult to get or maintain 
an erection. One commenter proposed to rate Peyronie's disease 
analogously to ED under DC 7522.
    The etiology of Peyronie's disease remains unclear. More recently, 
Peyronie's disease has been thought to result from vascular trauma or 
injury to the penis that causes scarring and deformity of the penis. 
Lizza, E. et al., ``Peyronie Disease'' (updated July 25, 2018), 
Medscape https://emedicine.medscape.com/article/456574-overview#a7 
(last visited Jan. 15, 2019). VA appreciates commenter's statement that 
penile trauma as a result of an in-service injury should be recognized 
under DC 7522 and intends to address this issue in the new proposed 
rule.
    One of the above commenters further asked if VA would sever service 
connection for previously established Peyronie's disease. VA will sever 
service connection only where the evidence establishes that the award 
of service connection was clearly and unmistakably erroneous, and only 
after providing the veteran with proper notification and due process. 
38 CFR 3.105(d). Moreover, 38 CFR 3.957 protects an award of service 
connection that has been in effect for ten years or longer (unless the 
original grant was based on fraud).

IV. Diagnostic Code 7542

    One commenter expressed concern with VA's proposal to rate 
neurogenic bladder as voiding dysfunction or urinary tract infection, 
whichever is predominant under the proposed DC 7542, Neurogenic 
bladder. The commenter believed that such a proposal would not 
adequately compensate a veteran who suffers from both voiding 
dysfunction and urinary tract infection. Historically, 38 CFR 4.115a 
has recognized that ``[d]iseases of the genitourinary system generally 
result in disabilities related to renal or voiding dysfunction, 
infections, or a combination of these.'' Further, Sec.  4.115a directs 
rating personnel to evaluate such disabilities on the ``predominant 
area of dysfunction.'' VA's instruction for proposed DC 7542 to 
evaluate on the basis of voiding dysfunction or urinary tract infection 
is similar to how all genitourinary disabilities are currently 
evaluated. We do not plan to make any changes based on this comment.

V. Diagnostic Code 7543

    One commenter had several questions about proposed DC 7543, 
Varicocele. The first question was whether VA will assign a single 
evaluation for both unilateral or bilateral involvement. VA's position 
is that a single evaluation would be assigned. To the extent the 
commenter is insinuating that the bilateral factor described by 38 CFR 
4.26 should be applied to proposed DC 7543, it would not--because 
proposed DC 7543 would not pertain to extremities or paired skeletal 
muscles.
    The second question was whether two evaluations would be assigned 
in case of a left varicocele with right hydrocele. VA would assign a 
single evaluation regardless of whether there is varicocele or 
hydrocele. Both conditions affect the same organ and have similar 
disabling effects. Evaluating these conditions separately would create 
pyramiding. See 38 CFR 4.14 (stating that the evaluation of the same 
disability under various diagnoses is to be avoided). Lastly, while 
these conditions may cause a decrease in fertility, or the existence of 
infertility, neither cause a reduction in earning capacity. While 
varicocele or hydrocele may be associated with infertility, infertility 
does not impair earning capacity and is not in itself a disability for 
VA rating purposes. See 38 CFR 4.1.
    Finally, the same commenter asked whether separate multiple zero-
percent evaluations under proposed DC 7543 could warrant compensation. 
As noted above, VA would not assign multiple zero-percent evaluations 
under proposed DC 7543. Moreover, 38 CFR 3.324, Multiple Noncompensable 
Service-connected Disabilities, would not apply to DC 7543 because the 
regulation requires disabilities ``of such character as clearly to 
interfere with normal employability.'' In most cases, for the reasons 
stated above, the condition evaluated under DC 7543 would not interfere 
with employability. We do not plan to make any changes based on these 
comments.

VI. Comments Beyond the Scope of This Rulemaking

A. Mental Distress, Mental Disorders, and Genitourinary Disorders

    Two commenters requested changes to 38 CFR 4.130 in their public 
comments. One commenter disagreed with the proposed removal of a 20-
percent rating for ED under DC 7522 and pointed to mental distress 
caused by ED. The commenter recommended expanding 38 CFR 4.130 to 
include mental distress caused by ED. The other commenter disagreed 
with the noncompensable evaluation for decrease/loss of fertility under 
proposed DC 7543 and recommended expanding 38 CFR 4.130 to include 
mental distress caused by decreased/lost fertility.
    Initially, VA notes that the proposed rulemaking concerned 38 CFR 
4.115b, not Sec.  4.130; thus, this comment is beyond the scope of this 
rulemaking. Nevertheless, as stated in the preamble to the proposed 
rule, erectile dysfunction and decrease or loss of fertility do not 
result in impairment of earning capacity and therefore do not warrant 
compensable evaluations under the VA schedule for rating disabilities 
(VASRD). 82 FR at 35143; see also 38 CFR 4.1 (stating that the purpose 
of the rating schedule is to represent the average impairment in 
earning capacity resulting from diseases and injuries in civil 
occupations). VA notes that, despite proposing no compensation for 
these conditions through VASRD, its regulations do provide compensation 
for the impact on a veteran's ability to procreate through the 
assignment of SMC for loss or loss of use of a creative organ. See 38 
U.S.C. 1114(k).
    Another commenter appeared to provide a response to the above 
comments related to expanding 38 CFR 4.130 to include ED as a symptom 
of a mental health diagnosis. The commenter examined several case

[[Page 7846]]

scenarios where a veteran might claim a mental health disorder 
secondary to service-connected ED. VA agrees with the commenter's 
assessment that any mental disorder related to ED would be a separate 
claim and would require its own diagnosis, service connection, and 
disability evaluation under 38 CFR 4.130.

B. 38 CFR 4.14, Co-Morbidities, and Pyramiding

    One commenter suggested that an example of pyramiding (38 CFR 4.14) 
is always helpful. The commenter wanted to examine a case scenario 
where a veteran with service-connected bladder cancer also has a 
separate service-connected primary prostate cancer. The commenter asked 
what would be an example of non-overlapping symptomatology warranting 
separate evaluations. The rating schedule evaluates bladder and 
prostate cancer under DC 7528, entitled Malignant Neoplasms of the 
Genitourinary System. VA did not propose to change the rating criteria 
for DC 7528. Therefore, this issue is not within the scope of this 
rulemaking.
    The same commenter asked how VA would rate a surgical resection for 
a necrotic penis in end stage renal disease involving less than one 
half of the penis. VA assigns evaluations for service-connected 
disabilities in accordance with the rating schedule and based on the 
individual facts and medical evidence of record. As such, it cannot 
comment on how disabilities in particular hypothetical circumstances 
would be rated and finds this comment outside the scope of this 
rulemaking.
    The same commenter also had several questions regarding the 
proposed transplant list provision in 38 CFR 4.115a. The commenter 
wanted to examine a case scenario where a veteran with hepatitis C and 
alcohol-related cirrhosis was placed on the transplant list but later 
was service-connected for kidney cancer due to Camp Lejeune service and 
then receives a transplant. The commenter wanted to know how the rater 
would determine if the transplant was due to the non-service-connected 
conditions and not the presumptive cancer given overlapping symptoms. 
Cirrhosis and kidney cancer involve two separate body systems. 
Cirrhosis is a liver condition, which is part of the digestive system, 
whereas kidney cancer is part of the genitourinary system. To the 
extent the commenter is describing a scenario in which a veteran was on 
both liver and kidney transplant lists, separation of symptomology for 
two or more conditions for evaluation purposes is made on a case-by-
case in accordance with the evidence of record. VA is not proposing to 
change the way two separate body systems' conditions are rated. 
Therefore, this issue is not within the scope of this proposed 
rulemaking.

C. Incorrect Rulemaking

    One commenter submitted a comment to the ED-2015-OSERS-001-1167 
regulation published by the Office of Special Education & 
Rehabilitative Services in error.

VII. Comment Regarding Public Access

    One commenter suggested that VA should provide transcripts, 
minutes, or other materials obtained from subject matter experts and 
the public gathered during a public forum held on January 27-28, 2011.
    In the preamble to the proposed rule, VA included a general summary 
provision referencing the public forum in January 2011. See 82 FR at 
35140. The goals of the forum were to improve and update VASRD 
criteria, and invite public participation; this process included 
presentations on areas of expertise and interaction with the public. (A 
transcript of this public forum is on file and available for public 
inspection in the Office of Regulation and Policy Management. Contact 
information for that office is noted in the ADDRESSES section of the 
proposed rule. See 82 FR at 35140.) The public forum and working group 
process served as an initial call to various subject matter experts and 
Veterans Service Organizations to provide a preliminary review of the 
VASRD from both internal and external stakeholders.
    VA emphasizes that this review of the VASRD was not an opportunity 
for external stakeholders to participate in the deliberative rulemaking 
process; the public forum discussed the general topic of the VASRD body 
system and provided feedback on the areas that were subject to advances 
since the last major revision of the body system. To this end, VA notes 
that, where changes to the scientific and/or medical nature of a given 
condition were made in the proposed rule, VA cited the published, 
publicly-available source for each change. Not only does this provide 
the public with access to the source for a given proposed change, it 
also ensures that VA relied upon peer-reviewed scientific and medical 
information to support a given change. While similar information may 
have been presented at the public forum, VA relied upon the published 
document(s) as the primary source for a change and included such 
sources in the administrative record for this rulemaking. VA did not 
propose scientific and/or medical changes to the VASRD in the absence 
of publicly available, peer-reviewed sources.
    Accordingly, any references in the proposed rule to the working 
group phase, to include the public forum, serve as an explanatory 
background and introduction to the VASRD rewrite project; the changes 
made by this rulemaking are not a reflection of any presenter or work 
group member. All proposed changes based on scientific and/or medical 
information are a reflection of cited, published materials which are 
available to the public. VA has made all deliberative materials 
available (via citation in the rulemaking) and is providing access to 
materials from the public forum available for public inspection at the 
Office of Regulation Policy and Management.

Signing Authority

    The Secretary of Veterans Affairs 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. 
Wilkie, Secretary, Department of Veterans Affairs, approved this 
document on February 13, 2019, for publication.

    Dated: February 26, 2019.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.
[FR Doc. 2019-03748 Filed 3-4-19; 8:45 am]
 BILLING CODE 8320-01-P