[Federal Register Volume 84, Number 117 (Tuesday, June 18, 2019)]
[Rules and Regulations]
[Pages 28227-28235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12682]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AQ43
Schedule for Rating Disabilities; Infectious Diseases, Immune
Disorders, and Nutritional Deficiencies
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
Schedule for Rating Disabilities (VASRD) by revising the portion of the
schedule that addresses infectious diseases, immune disorders, and
nutritional deficiencies. The effect of this action is to ensure that
the rating schedule uses current medical terminology and to provide
detailed and updated criteria for evaluation of infectious diseases,
immune disorders, and nutritional deficiencies for disability rating
purposes.
DATES: Effective Date: This final rule is effective August 11, 2019.
FOR FURTHER INFORMATION CONTACT: Ioulia Vvedenskaya, M.D., M.B.A.,
Medical Officer, Part 4 VASRD Regulations Staff (211C), Compensation
Service, Veterans Benefits Administration, Department of Veterans
Affairs, 810 Vermont Avenue NW, Washington, DC 20420,
[email protected], (202) 461-9700 (This is not a toll-free
telephone number).
SUPPLEMENTARY INFORMATION: VA published a proposed rule in the Federal
Register at 84 FR 1678 on February 5, 2019, to amend 38 CFR 4.88a and
4.88b, the portion of the VASRD dealing with infectious diseases,
immune disorders, and nutritional deficiencies. VA provided a 60-day
public comment period, and interested persons were invited to submit
written comments on or before April 8, 2019. VA received 32 comments.
One commenter supported VA's intent to eliminate obsolete
terminology and substitute the most up-to-date terms and definitions
for conditions such as Chronic Fatigue Syndrome. The commenter noted
that this rule would help to achieve the important public policy goal
of clear, effective communication among veterans, their health care
providers, and the Department. Additionally, the commenter observed
that it is important that what appears to be ``catch-all'' language
appended to the respective disease evaluation categories be correctly
phrased to minimize the likelihood that deserving patients will be
excluded from care. The commenter suggested that VA should consider
identifying the ``residual effects'' categories explicitly so the
rating decisions and appeals would be most favorable to the veterans
seeking care. The commenter further suggested that VA consider
expressly recognizing that any ambiguity in the rules regarding covered
residual effects should be resolved in the veteran's favor. VA makes no
changes based on these comments. The proposed diagnostic codes provided
examples of common residuals of specific diseases, but also made clear
that the instruction to rate ``any residual disability'' from a disease
``includes, but is not limited to'' the listed examples. We believe
this language is sufficiently clear and broad to ensure that any
residuals identified in individual cases may be appropriately
evaluated. We do not believe it is necessary or advisable to seek to
list in these regulations all of the conditions that may be found to be
residuals of diseases in specific cases. Further, because these rules
do not restrict the conditions that may be found in individual cases to
be residuals of a disease, we do not believe the regulation is
restrictive or ambiguous on that issue. We note also that the principle
of resolving reasonable doubt in favor of veterans is established in 38
CFR 3.102 and 4.3.
One commenter expressed an opinion that this regulatory update can
be viewed as a bureaucratic move to disenfranchise veterans eligible
for unspecified services. The commenter did not offer any specific
recommendations and did not propose any actions. VA makes no changes
based on this comment.
One commenter stated that vector-borne diseases (VBD) are of major
importance to human health both locally and globally. In addition, the
commenter highlighted that the precise diagnoses of many of these
diseases remains a major challenge because of the lack of comprehensive
data available on accurate and reliable diagnostic methods,
specifically for borreliosis (Lyme disease). The commenter did not
offer a specific recommendation or a course of action. VA makes no
changes based on this comment.
Two commenters were concerned that by implementing a General Rating
Formula (GRF) for infectious diseases, VA would drastically change
veterans' ratings from 100 percent to zero percent, dependent upon
whether the disease is deemed active or resolved based upon a
laboratory test. Commenters noted that there is considerable evidence
that laboratory tests may not always be deemed reliable and that each
laboratory may have differing references ranges leading to improper
reading of results. However, VA's proposed GRF did not alter the rating
principles for infectious diseases, which currently provide--in
individual diagnostic codes rather than a GRF--for evaluation of active
diseases and residuals. Instead, we updated the format of the rating
schedule to indicate that the GFR for infectious diseases would be
consistent for rating these conditions and also be similar to the use
of a GFR in other sections of the VASRD, such as in 38 CFR 4.97, 4.116,
4.130, and others. Currently, VA assigns a 100-percent evaluation for
each specific infectious disease during an active period; thereafter,
any residual functional impairment from the infectious disease
determines the level of disability. VA pointed out that its proposed
GFR would be a familiar concept for Veterans Benefits Administration
(VBA) employees and minimize the risk for error by providing one
criterion applicable to multiple diagnostic codes (DCs). Additionally,
VA did not propose any laboratory testing in its GFR, but instead we
proposed to confirm the recurrence of active infection for certain
conditions (DCs 6301, 6304, 6311, 6312, 6316) with overlapping clinical
symptoms such as pallor, fever and hepatosplenomegaly. By adding a
specific reference to laboratory testing for each infection, we made an
effort to distinguish one infection from another. VA makes no changes
based on this comment.
Additionally, commenters were concerned that the proposed GRF would
not consider veterans' ability to maintain gainful employment because
many infectious diseases, even after negative laboratory test results,
can cause long-lasting residual symptoms that may last up to eight
weeks or longer and that lingering, residual symptoms would adversely
affect a veteran's normal functioning and his/her ability to maintain
gainful employment. The proposed GRF is designed to assess permanent
functional impairment that resulted from long-lasting residual symptoms
rather than rely solely on a specific laboratory test. The proposed
[[Page 28228]]
GFR directs rating personnel to rate any residual effect of acute and/
or chronic infection and to determine the degree of disability within
the appropriate body system using the same principles as they exist in
the current rating schedule. VA's disability compensation benefits are
based on the extent of average impairment of earning capacity from the
service-connected injury or disease and this focus is reflected
throughout the rating schedule. Therefore, VA makes no changes based on
this comment.
One commenter expressed concern regarding West Nile Virus
infection, stating infected individuals could experience headaches,
body aches, joint pains, vomiting, diarrhea, or rash during an acute
phase of the disease and that the residual symptoms could last for an
extended period. The commenter specifically noted a severe complication
of the West Nile Virus infection that affects the central nervous
system in its acute phase and that such complications could become
clinically permanent. The commenter proposed to list specific
neuroinvasive diseases such as meningitis and encephalitis as residuals
of West Nile Virus in Sec. 4.88b and to be rated under the applicable
DC code(s). The commenter further interpreted the note under DC 6335
that VA would rate West Nile virus infection residuals and residuals
listed in Sec. 3.317 together and was concerned that this approach
would cause confusion and limit this DC to only a subset of Persian
Gulf veterans who served in the Southwest Asia Theater of Operations
and are entitled to presumptive service connection. VA clarifies that
the note under DC 6335 concerning Sec. 3.317 is intended solely to
serve as a reference that provides guidance to the adjudicator in
rating a disease under this DC. The reference to Sec. 3.317 is not
intended nor can it be read to restrict application of DC 6335 to
veterans with Southwest Asia service. As West Nile infection and other
similar infectious diseases have complex disability pictures that are
not commonly seen by VA adjudicators, the inclusion of the Sec.
3.317(d) reference under DC 6335 is specifically meant to assist our
adjudicators in understanding the nature of the disease and, most
critically, the usual residual disabilities of the disease. Referencing
Sec. 3.317(d) in the note for infectious diseases like the West Nile
virus serves to impart understanding to VA adjudicators that such
infectious diseases may result in various residuals or complications
with physical, functional, or cognitive effects and enables
adjudicators to accurately rate veterans with these diseases. In
response and in order to minimize any confusion, VA has removed the
notes that reference 38 CFR 3.317(d) from the Infectious Diseases
rating criteria for DCs 6301, 6304, 6316, 6330, 6331, 6333-6335. VA has
added the reference to 38 CFR 3.317(d) as a note in a new introductory
paragraph before the rating schedule for infectious diseases, immune
disorders, and nutritional deficiencies in 38 CFR 4.88b.
Additionally, commenters expressed a concern that the proposed GRF
will negatively affect veterans' care and treatment. VA appreciates
commenters' concerns; however, VA's Rating Schedule for Disabilities
does not regulate veterans' access to clinical care. Further, as
explained above, the provisions in the proposed GRF for rating active
diseases and residuals are consistent with the existing provisions
under individual diagnostic codes in Sec. 4.88b and will not
significantly change how VA evaluates these conditions. VA makes no
changes based on these comments.
One commenter supported the need for greater simplification of the
rating schedule and disability determination process and was concerned
that this proposed update to the schedule for infectious disease,
immune disorders and nutritional deficiencies excludes nurse
practitioners and their patients. Specifically, the commenter noted
that the proposed criteria for determining incapacitation related to
systemic exertion intolerance disease (SEID)/chronic fatigue syndrome
(CFS) require bed rest and treatment prescribed by a licensed physician
and that a physician who administered diagnostic tests ruled out
ongoing exertion or other medical conditions associated with fatigue.
The commenter requested that the Veterans Health Administration (VHA)
revise this proposed rating schedule update and add ``or nurse
practitioner'' after the word ``physician'' in all sections. The
commenter also asked that, in future revisions of the rating schedule,
VHA recognize that thousands of veterans receive care from nurse
practitioners and to include nurse practitioners in the language of the
rating schedule. VA clarifies that this rulemaking pertains to the
Veterans Benefits Administration (VBA) and addresses disability
evaluations due to the functional impairment related to service-
connected health conditions. This rulemaking does not address the scope
of clinical practice for nurse practitioners. However, VBA will assess
whether amendments to the list of qualifying heath care providers are
necessary and such amendments, if any, will be addressed in a future
proposal. VA makes no changes based on this comment.
One commenter stated that it is unfair that a National Guard
soldier who was called to active duty and then immediately released
upon return from the Middle East has to have manifested one of the
infectious diseases listed in Sec. 3.317 within one year from
separation (aside from three exceptions), whereas an active duty
solider who redeploys from Iraq or Afghanistan and serves several more
years on active duty only has to show the disease within a year after
separation, which may be several years after service in Iraq or
Afghanistan. This comment relates to the time period prescribed in 38
CFR 3.317(c)(3) for applying the presumption of service connection for
infectious diseases in veterans who served in the Southwest Asia
theater of operations during the Persian Gulf War. The proposed rules
pertained only to the criteria for evaluating the severity of service-
connected infectious diseases, immune disorders, and nutritional
deficiencies. They did not propose to address matters concerning the
establishment of service connection or the operation of presumptions of
service connection for any diseases. Accordingly, the comment is beyond
the scope of this rulemaking. VA makes no changes based on this
comment.
Multiple commenters including individual veterans, Veterans
Advocacy Organizations, Veterans Service Organizations, and other
professional organizations expressed a wide range of concerns regarding
the proposed changes to the definition of chronic fatigue syndrome
(CFS) under Sec. 4.88a and the name change for DC 6354. Commenters
thought the name change of Chronic Fatigue Syndrome (CFS) to Systemic
Exertion Intolerance Disease/Chronic Fatigue Syndrome (SEID/CFS) was
unwarranted and that it would create unnecessary confusion among
medical providers, including non-VA medical providers. Commenters also
stated that that the new name, Systemic Exertion Intolerance Disease
(SEID), has not been adopted by any federal agency, nor by researchers
and clinicians and that the CDC, National Institutes of Health (NIH),
research publications, and materials for patients and health care
providers all use the term ME/CFS. Commenters felt that VA's use of the
term SEID/CFS would introduce confusion among medical providers and
patients at VA and reduce VA's ability to coordinate with other federal
agencies.
Commenters expressed that the proposed changes to the definition of
CFS does not conform to the Kansas
[[Page 28229]]
Criteria (2000), the Centers for Disease Control (CDC) Chronic
Multisymptom Illness (CMI) criteria, and to those used in VA-funded
research into Gulf War Illness (GWI) and that the proposed definition
is not compatible with the department of Defense (DoD) Congressionally
Directed Medical Research Programs (CDMRP) for CMI. Commenters stated
that VA's proposed combination of the Institute of Medicine (IOM)
reevaluation of CFS as SEID with the 1994 Fukuda criteria for CFS
presents an amalgamation that is not based in evidence nor discussed in
any publications. The commenters expressed concern that VA did not
follow any recommendations from the IOM, the Gulf War Research Advisory
Committee (RAC), CDC, or other agencies and this combination is for an
entirely new entity that is not known by World Health Organization,
International Classification of Diseases, Tenth Revision (ICD-10) or
other medical classification system and that the VA proposed definition
is not compatible with the one mandated by DoD's CDMRP for CMI and the
Kansas Criteria to qualify for GWI research funding.
Commenters noted that VA did not consult the RAC on these proposed
changes and stated that the RAC is responsible for understanding the
definitions and entirety of the condition. Commenters also were
concerned that the proposed changes would leave those Gulf War veterans
who receive care and services for CFS, vulnerable to VA manipulation of
their care and services. The commenters suggested that CFS should be
studied by the Gulf War research community, the veteran community, CFS
researchers, the RAC, and independent medical professionals and that VA
rely on the recommendations from these parties as a guide for new
criteria updates and to ascertain if these changes are even warranted.
Commenters also stated that VA would be directly and negatively
impacting more than 300,000 Gulf War veterans suffering from Gulf War
Illness by not relying on the studies from these parties and by
combining, in whole or in part, the 2015 Systemic Exertion Intolerance
Disease (SEID) and the 1994 Fukuda CDC criteria for Chronic Fatigue
Syndrome (CFS) into what would be called SEID/CFS.
Commenters felt that VA's adoption of the Fukuda criteria is a step
backwards that will perpetuate diagnostic inaccuracy and cause harm to
Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS) patients
served by the VA. Commenters referenced the 2015 IOM Report to state
that the Fukuda criteria were overly broad because they do not require
the hallmark symptom of post-exertional malaise and should not be used
because of the possibility of misdiagnosing patients with other
conditions. Commenters believed that VA's reliance on outdated Fukuda
diagnostic criteria would cause harm to veterans with ME/CFS through
misdiagnosis and cause a mismatch with the diagnostic criteria in use
elsewhere. Commenters suggested that VA adopt ME/CFS or ME/CFS/SEID
title for the illness to stay in alignment with the greater ME/CFS
community, to include patients, doctors, and researchers. Commenters
felt that VA's proposed revisions were based on financial reasons in
order to revoke benefits from existing veterans and prevent other
veterans from receiving this combined diagnosis of SEID/CFS.
Commenters also provided questions and recommended that VA adopt
ME/CFS instead of SEID/CFS; reject the Fukuda criteria; and adopt the
IOM diagnostic criteria.
Another recommendation was for VA to revise Sec. 4.88a to more
closely mirror the diagnostic standard endorsed by the IOM and CDC and
eliminate the listed exclusions to allow the veterans' examining and/or
treating physician to make a final determination as to the appropriate
diagnosis for veterans. In addition, commenters recommended that VA
should broaden the group of medical professionals authorized to
prescribe bed rest and treatment to meet the incapacitation standard.
While VA received some support for updating its definition of CFS,
VA considered these comments and concerns and concluded that this
proposed update to Sec. 4.88a is premature and that additional
research is needed to provide a more comprehensive way to determine the
disabling effects of CFS and associated conditions. Therefore, VA is
withdrawing its proposal to amend Sec. 4.88a Chronic Fatigue Syndrome.
To ensure that the full range of relevant factors is adequately
addressed, VA intends to establish a work group to specifically address
this condition. Upon assessment of the work group's findings, VA will
determine whether amendments to Sec. 4.88a are necessary and such
amendments, if any, will be addressed in a future proposal.
VA makes one clarifying change to the criteria for a 10 percent
disability rating under DC 6351, HIV-related illness. In the proposed
rule, VA proposed to replace the phrase ``definite medical symptoms''
with ``HIV-related constitutional symptoms'' but stated that we would
otherwise make no change to the criteria for a 10 percent evaluation.
The prior criteria for a 10 percent evaluation read: ``Following
development of definite medical symptoms, T4 cells of 200 or more and
less than 500, and on approved medication(s), or with evidence of
depression or memory loss with employment limitations.'' We proposed to
revise this to read: ``Following development of HIV-related
constitutional symptoms; T4 cell count between 200 and 500, and use of
approved medication(s); or with evidence of depression or memory loss
with employment limitations.'' In its review of the final rule, VA
realized that the prior text for a 10 percent disability rating was
unclear because it listed four criteria, separated by commas, but used
``and'' between the second and third criteria, while using ``or''
between the third and fourth criteria. The proposed text listed three
criteria, separated by semicolons, with the second of those criteria
encompassing both the second and third criteria of the prior text,
joined by the word ``and''. We recognize that the combination of
punctuation and conjunctions in both the prior and the propsed text
could create confusion. Accordingly, VA revises the text for a 10
percent disability rating to read: ``Following development of HIV-
related constitutional symptoms; T4 cell count between 200 and 500; use
of approved medication(s); or with evidence of depression or memory
loss with employment limitations.'' This clarifies that the text
includes four separate criteria, consistent with the prior text, but
will eliminate the potential confusion caused by the term ``and''
between two of those criteria. This will ensure that the provision is
implemented in the manner most consistent with VA's intent and most
favorable to veterans. VA appreciates the comments submitted in
response to the proposed rule. Based on the rationale stated in the
proposed rule and in this document, the proposed rule is adopted as a
final rule with the changes noted above.
Effective Date of Final Rule
VBA personnel utilize the Veterans Benefit Management System for
Rating (VBMS-R) to process disability compensation claims that involve
disability evaluations made under the VASRD. In order to ensure that
there is no delay in processing veterans' claims, VA must coordinate
the effective date of this final rule with corresponding VBMS-R system
updates. As such, this final rule will apply effective August 11, 2019,
the date VBMS-R system updates related to this final rule will be
complete.
[[Page 28230]]
Executive Orders 12866, 13563, and 13771
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: (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
the Executive Order.
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined and it has
been determined not to be a significant regulatory action under
Executive Order 12866. VA's impact analysis can be found as a
supporting document at http://www.regulations.gov, usually within 48
hours after the rulemaking document is published. Additionally, a copy
of the rulemaking and its impact analysis are available on VA's website
at http://www.va.gov/orpm by following the link for VA Regulations
Published from FY 2004 through FYTD. This rule is not an E.O. 13771
regulatory action because this rule is not significant under E.O.
12866.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule will not affect any small entities. Therefore,
pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial
and final regulatory flexibility analysis requirements of sections 603
and 604.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This final rule will have no such effect on
State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program numbers and
titles for this rule are 64.102, Compensation for Service-Connected
Deaths for Veterans' Dependents; 64.105, Pension to Veterans, Surviving
Spouses, and Children; 64.109, Veterans Compensation for Service-
Connected Disability; and 64.110, Veterans Dependency and Indemnity
Compensation for Service-Connected Death.
List of Subjects in 38 CFR Part 4
Disability benefits, Pensions, Veterans.
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 May 20, 2019, for publication.
Dated: May 20, 2019.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
the Secretary, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR part 4 as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
0
1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155, unless otherwise noted.
0
2. Amend Sec. 4.88b by:
0
a. Adding introductory text;
0
b. Adding the entry ``General Rating Formula for Infectious Diseases:''
before the entry for diagnostic code 6300;
0
c. Revising the entries for diagnostic codes 6300 through 6302 and 6304
through 6311;
0
d. Adding in numerical order an entry for diagnostic code 6312;
0
e. Revising the entries for diagnostic codes 6316 through 6320;
0
f. Adding in numerical order entries for diagnostic codes 6325, 6326,
6329 through 6331, and 6333 through 6335; and
0
g. Revising the entries for diagnostic codes 6351 and 6354.
The additions and revisions read as follows:
Sec. 4.88b Schedule of ratings-infectious diseases, immune disorders,
and nutritional deficiencies.
Note: Rate any residual disability of infection within the
appropriate body system as indicated by the notes in the evaluation
criteria. As applicable, consider the long-term health effects
potentially associated with infectious diseases as listed in Sec.
3.317(d) of this chapter, specifically Brucellosis, Campylobacter
jejuni, Coxiella burnetii (Q fever), Malaria, Mycobacterium
Tuberculosis, Nontyphoid Salmonella, Shigella, Visceral
Leishmaniasis, and West Nile virus.
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
General Rating Formula for Infectious Diseases:
For active disease..................................... 100
After active disease has resolved, rate at 0 percent
for infection. Rate any residual disability of
infection within the appropriate body system.
6300 Vibriosis (Cholera, Non-cholera):
Evaluate under the General Rating Formula.
[[Page 28231]]
Note: Rate residuals of cholera and non-cholera vibrio
infections, such as renal failure, skin, and
musculoskeletal conditions, within the appropriate
body system.
6301 Visceral leishmaniasis:
As active disease...................................... 100
Note 1: Continue a 100 percent evaluation beyond the
cessation of treatment for active disease. Six months
after discontinuance of such treatment, determine the
appropriate disability rating by mandatory VA
examination. Any change in evaluation based upon that
or any subsequent examination shall be subject to the
provisions of Sec. 3.105(e) of this chapter.
Thereafter, rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to liver damage and bone marrow
disease.
Note 2: Confirm the recurrence of active infection by
culture, histopathology, or other diagnostic
laboratory testing.
6302 Leprosy (Hansen's disease):
As active disease...................................... 100
Note: Continue a 100 percent evaluation beyond the
cessation of treatment for active disease. Six months
after discontinuance of such treatment, determine the
appropriate disability rating by mandatory VA
examination. Any change in evaluation based upon that
or any subsequent examination shall be subject to the
provisions of Sec. 3.105(e) of this chapter.
Thereafter, rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, skin lesions, peripheral
neuropathy, or amputations.
6304 Malaria:
Evaluate under the General Rating Formula.
Note 1: The diagnosis of malaria, both initially and
during relapse, depends on the identification of the
malarial parasites in blood smears or other specific
diagnostic laboratory tests such as antigen detection,
immunologic (immunochromatographic) tests, and
molecular testing such as polymerase chain reaction
tests.
Note 2: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, liver or splenic damage, and
central nervous system conditions.
6305 Lymphatic filariasis, to include elephantiasis:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, epididymitis, lymphangitis,
lymphatic obstruction, or lymphedema affecting
extremities, genitals, and/or breasts.
6306 Bartonellosis:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, endocarditis or skin lesions.
6307 Plague:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection.
6308 Relapsing Fever:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, liver or spleen damage, iritis,
uveitis, or central nervous system involvement.
6309 Rheumatic fever:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, heart damage.
6310 Syphilis, and other treponema infections:
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, diseases of the nervous system,
vascular system, eyes, or ears (see DC 7004, DC 8013,
DC 8014, DC 8015, and DC 9301).
6311 Tuberculosis, miliary:
As active disease...................................... 100
Inactive disease: See Sec. Sec. 4.88c and 4.89.
Note 1: Confirm the recurrence of active infection by
culture, histopathology, or other diagnostic
laboratory testing.
Note 2: Rate under the appropriate body system any
residual disability of infection which includes, but
is not limited to, skin conditions and conditions of
the respiratory, central nervous, musculoskeletal,
ocular, gastrointestinal, and genitourinary systems
and those residuals listed in Sec. 4.88c.
6312 Nontuberculosis mycobacterium infection:
As active disease...................................... 100
Note 1: Continue the rating of 100 percent for the
duration of treatment for active disease followed by a
mandatory VA exam. If there is no relapse, rate on
residuals. Any change in evaluation based upon that or
any subsequent examination shall be subject to the
provisions of Sec. 3.105(e) of this chapter.
Note 2: Confirm the recurrence of active infection by
culture, histopathology, or other diagnostic
laboratory testing.
Note 3: Rate under the appropriate body system any
residual disability of infection which includes, but
is not limited to, skin conditions and conditions of
the respiratory, central nervous, musculoskeletal,
ocular, gastrointestinal, and genitourinary systems
and those residuals listed in Sec. 4.88c.
* * * * * * *
6316 Brucellosis:
Evaluate under the General Rating Formula.
Note 1: Culture, serologic testing, or both must
confirm the initial diagnosis and recurrence of active
infection.
Note 2: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, meningitis, liver, spleen and
musculoskeletal conditions.
6317 Rickettsial, ehrlichia, and anaplasma infections:
Evaluate under the General Rating Formula.
Note 1: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, bone marrow, spleen, central
nervous system, and skin conditions.
[[Page 28232]]
Note 2: This diagnostic code includes, but is not
limited to, scrub typhus, Rickettsial pox, African
tick-borne fever, Rocky Mountain spotted fever,
ehrlichiosis, or anaplasmosis.
6318 Melioidosis:
Evaluate under the General Rating Formula.
Note 1: Confirm by culture or other specific diagnostic
laboratory tests the initial diagnosis and any relapse
or chronic activity of infection.
Note 2: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, arthritis, lung lesions, or
meningitis.
6319 Lyme disease:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, arthritis, Bell's palsy,
radiculopathy, ocular, or cognitive dysfunction.
6320 Parasitic diseases otherwise not specified:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection.
6325 Hyperinfection syndrome or disseminated
strongyloidiasis:
As active disease...................................... 100
Note: Continue the rating of 100 percent through active
disease followed by a mandatory VA exam. If there is
no relapse, rate on residual disability. Any change in
evaluation based upon that or any subsequent
examination shall be subject to the provisions of Sec.
3.105(e) of this chapter.
6326 Schistosomiasis:
As acute or asymptomatic chronic disease............... 0
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, conditions of the liver, intestinal
system, female genital tract, genitourinary tract, or
central nervous system.
6329 Hemorrhagic fevers, including dengue, yellow fever,
and others:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, conditions of the central nervous
system, liver, or kidney.
6330 Campylobacter jejuni infection:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, Guillain-Barre syndrome, reactive
arthritis, or uveitis.
6331 Coxiella burnetii infection (Q fever):
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, chronic hepatitis, endocarditis,
osteomyelitis, post Q-fever chronic fatigue syndrome,
or vascular infections.
6333 Nontyphoid salmonella infections:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, reactive arthritis.
6334 Shigella infections:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, hemolytic-uremic syndrome or
reactive arthritis.
6335 West Nile virus infection:
Evaluate under the General Rating Formula.
Note: Rate under the appropriate body system any
residual disability of infection, which includes, but
is not limited to, variable physical, functional, or
cognitive disabilities.
* * * * * * *
6351 HIV-related illness:
AIDS with recurrent opportunistic infections (see Note 100
3) or with secondary diseases afflicting multiple body
systems; HIV-related illness with debility and
progressive weight loss...............................
Refractory constitutional symptoms, diarrhea, and 60
pathological weight loss; or minimum rating following
development of AIDS-related opportunistic infection or
neoplasm..............................................
Recurrent constitutional symptoms, intermittent 30
diarrhea, and use of approved medication(s); or
minimum rating with T4 cell count less than 200.......
Following development of HIV-related constitutional 10
symptoms; T4 cell count between 200 and 500; use of
approved medication(s); or with evidence of depression
or memory loss with employment limitations............
Asymptomatic, following initial diagnosis of HIV 0
infection, with or without lymphadenopathy or
decreased T4 cell count...............................
Note 1: In addition to standard therapies and regimens,
the term ``approved medication(s)'' includes treatment
regimens and medications prescribed as part of a
research protocol at an accredited medical
institution.
Note 2: Diagnosed psychiatric illness, central nervous
system manifestations, opportunistic infections, and
neoplasms may be rated separately under the
appropriate diagnostic codes if a higher overall
evaluation results, provided the disability symptoms
do not overlap with evaluations otherwise assignable
above.
Note 3: The following list of opportunistic infections
are considered AIDS-defining conditions, that is, a
diagnosis of AIDS follows if a person has HIV and one
more of these infections, regardless of the CD4 count--
candidiasis of the bronchi, trachea, esophagus, or
lungs; invasive cervical cancer; coccidioidomycosis;
cryptococcosis; cryptosporidiosis; cytomegalovirus
(particularly CMV retinitis); HIV-related
encephalopathy; herpes simplex-chronic ulcers for
greater than one month, or bronchitis, pneumonia, or
esophagitis; histoplasmosis; isosporiasis (chronic
intestinal); Kaposi's sarcoma; lymphoma; mycobacterium
avium complex; tuberculosis; pneumocystis jirovecii
(carinii) pneumonia; pneumonia, recurrent; progressive
multifocal leukoencephalopathy; salmonella septicemia,
recurrent; toxoplasmosis of the brain; and wasting
syndrome due to HIV.
6354 Chronic fatigue syndrome (CFS):
[[Page 28233]]
Debilitating fatigue, cognitive impairments (such as
inability to concentrate, forgetfulness, or
confusion), or a combination of other signs and
symptoms:
Which are nearly constant and so severe as to 100
restrict routine daily activities almost
completely and which may occasionally preclude
self-care.........................................
Which are nearly constant and restrict routine 60
daily activities to less than 50 percent of the
pre-illness level; or which wax and wane,
resulting in periods of incapacitation of at least
six weeks total duration per year.................
Which are nearly constant and restrict routine 40
daily activities from 50 to 75 percent of the pre-
illness level; or which wax and wane, resulting in
periods of incapacitation of at least four but
less than six weeks total duration per year.......
Which are nearly constant and restrict routine 20
daily activities by less than 25 percent of the
pre-illness level; or which wax and wane,
resulting in periods of incapacitation of at least
two but less than four weeks total duration per
year..............................................
Which wax and wane but result in periods of 10
incapacitation of at least one but less than two
weeks total duration per year; or symptoms
controlled by continuous medication...............
Note: For the purpose of evaluating this
disability, incapacitation exists only when a
licensed physician prescribes bed rest and
treatment.
------------------------------------------------------------------------
0
3. In appendix A to part 4, amend entry 4.88b by:
0
a. Revising the entry before the entry for diagnostic code 6300;
0
b. Revising the entry for diagnostic code 6300;
0
c. Adding in numerical order an entry for diagnostic code 6301;
0
d. Revising the entries for diagnostic codes 6302 and 6304 through
6309;
0
e. Adding in numerical order entries for diagnostic codes 6310 through
6312;
0
f. Revising the entries for diagnostic codes 6316 through 6320;
0
g. Adding in numerical order entries for diagnostic codes 6325, 6326,
6329 through 6331, and 6333 through 6335; and
0
h. Revising the entries for diagnostic codes 6351 and 6354.
The revisions and additions read as follows:
Appendix A to Part 4--Table of Amendments and Effective Dates Since 1946
------------------------------------------------------------------------
Diagnostic
Sec. code No.
------------------------------------------------------------------------
* * * * * * *
4.88b..................... .............. Added March 11, 1969; re-
designated Sec. 4.88c
November 29, 1994; Sec.
4.88a re-designated to Sec.
4.88b November 29, 1994;
General Rating Formula for
Infectious Diseases added
August 11, 2019.
6300 Criterion August 30, 1996;
title, criterion, and note
August 11, 2019.
6301 Criterion, note August 11,
2019.
6302 Criterion September 22,
1978; criterion August 30,
1996; criterion, note
August 11, 2019.
6304 Evaluation August 30, 1996;
criterion, note August 11,
2019.
6305 Criterion March 1, 1989;
evaluation August 30, 1996;
title, criterion, note
August 11, 2019.
6306 Evaluation August 30, 1996;
criterion, note August 11,
2019.
6307 Criterion May 13, 2018;
criterion, note August 11,
2019.
6308 Criterion August 30, 1996;
criterion, note August 11,
2019.
6309 Added March 1, 1963;
criterion March 1, 1989;
criterion August 30, 1996;
criterion, note August 11,
2019.
6310 Criterion, note August 11,
2019.
6311 Criterion, note August 11,
2019.
6312 Added August 11, 2019.
* * * * * * *
6316 Evaluation March 1, 1989;
evaluation August 30, 1996;
criterion, note August 11,
2019.
6317 Criterion August 30, 1996;
title, criterion, note
August 11, 2019.
6318 Added March 1, 1989;
criterion August 30, 1996;
criterion, note August 11,
2019.
6319 Added August 30, 1996;
criterion, note August 11,
2019.
6320 Added August 30, 1996;
criterion, note August 11,
2019.
6325 Added August 11, 2019.
6326 Added August 11, 2019.
6329 Added August 11, 2019.
6330 Added August 11, 2019.
6331 Added August 11, 2019.
6333 Added August 11, 2019.
6334 Added August 11, 2019.
6335 Added August 11, 2019.
* * * * * * *
6351 Added March 1, 1989;
evaluation March 24, 1992;
criterion August 30, 1996;
criterion, note August 11,
2019.
* * * * * * *
6354 Added November 29, 1994;
criterion August 30, 1996;
title, criterion, note
August 11, 2019.
* * * * * * *
------------------------------------------------------------------------
[[Page 28234]]
0
4. Amend appendix B to part 4 by:
0
a. Revising the entries for diagnostic codes 6300 and 6305;
0
b. Adding in numerical order an entry for diagnostic code 6312;
0
c. Revising the entry for diagnostic code 6317; and
0
d. Adding in numerical order entries for diagnostic codes 6325, 6326,
6329 through 6331, and 6333 through 6335.
The revisions and additions read as follows:
Appendix B to Part 4--Numerical Index of Disabilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Diagnostic code No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Infectious Diseases, Immune Disorders and Nutrional Deficiencies
--------------------------------------------------------------------------------------------------------------------------------------------------------
6300............................................. Vibriosis (Cholera, Non-cholera).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
6305............................................. Lymphatic filariasis, to include elephantiasis.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
6312............................................. Nontuberculosis mycobacterium infection.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
6317............................................. Rickettsial, ehrlichia, and anaplasma infections.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
6325............................................. Hyperinfection syndrome or disseminated strongyloidiasis.
6326............................................. Schistosomiasis.
6329............................................. Hemorrhagic fevers, including dengue, yellow fever, and others.
6330............................................. Campylobacter jejuni infection.
6331............................................. Coxiella burnetii infection (Q Fever).
6333............................................. Nontyphoid salmonella infections.
6334............................................. Shigella infections.
6335............................................. West Nile virus infection.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
5. Amend appendix C to part 4 by:
0
a. Adding in alphabetical order an entry for ``Campylobacter jejuni
infection'';
0
b. Removing the entry for ``Cholera, Asiatic'';
0
c. Adding in alphabetical order entries for ``Coxiella burnetii
infection (Q Fever)'', ``Hemorrhagic fevers, including dengue, yellow
fever, and others'', and ``Hyperinfection syndrome or disseminated
strongyloidiasis'';
0
d. Removing the entry for ``Lymphatic filariasis'';
0
e. Adding in alphabetical order entries for ``Lymphatic filariasis, to
include elephantiasis'', ``Nontuberculosis mycobacterium infection'',
``Nontyphoid salmonella infection'', ``Rickettsial, erlichial, and
Anaplasma infections'', ``Schistosomiasis'' and ``Shigella
infections'';
0
f. Removing the entry for ``Typhus, scrub''; and
0
g. Adding in alphabetical order entries for ``Vibriosis (Cholera, Non-
cholera)'' and ``West Nile virus infection''.
The additions and revisions read as follows:
Appendix C to Part 4--Alphabetical Index of Disabilities
------------------------------------------------------------------------
Diagnostic code
No.
------------------------------------------------------------------------
* * * * * * *
Campylobacter jejuni infection...................... 6330
* * * * * * *
Coxiella burnetii infection (Q Fever)............... 6331
* * * * * * *
Hemorrhagic fevers, including dengue, yellow fever, 6329
and others.........................................
* * * * * * *
Hyperinfection syndrome or disseminated 6325
strongyloidiasis...................................
* * * * * * *
Lymphatic filariasis, to include elephantiasis...... 6305
[[Page 28235]]
* * * * * * *
Nontuberculosis mycobacterium infection............. 6312
Nontyphoid salmonella infection..................... 6333
* * * * * * *
Rickettsial, ehrlichia, and anaplasma Infections.... 6317
* * * * * * *
Schistosomiasis..................................... 6326
* * * * * * *
Shigella infections................................. 6334
* * * * * * *
Vibriosis (Cholera, Non-cholera).................... 6300
* * * * * * *
West Nile virus infection........................... 6335
------------------------------------------------------------------------
[FR Doc. 2019-12682 Filed 6-17-19; 8:45 am]
BILLING CODE 8320-01-P