[Federal Register Volume 85, Number 230 (Monday, November 30, 2020)]
[Rules and Regulations]
[Pages 76453-76469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25450]
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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: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
Schedule for Rating Disabilities (``VASRD'' or ``rating schedule'') by
revising the portion of the rating schedule that addresses the
musculoskeletal system. The purpose of this revision is to ensure that
this portion of the rating schedule uses current medical terminology
and provides detailed and updated criteria for the evaluation of
musculoskeletal disabilities.
DATES: This rule is effective February 7, 2021.
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, Stat. 1392, established the
Veterans' Disability Benefits Commission (the ``Commission''). Section
1502 of Public Law 108-136 mandated the Commission to study
[[Page 76454]]
ways to improve the disability compensation system for military
veterans. The Commission consulted with the Institute of Medicine (IOM)
(now named the National Academy of Medicine) to review the medical
aspects of current policies. In 2007, the IOM released its report
titled ``A 21st Century System for Evaluating Veterans for Disability
Benefits.'' (Micahel McGeary et al. eds. 2007).
The IOM report noted that the VA Rating Schedule for Disabilities
was inadequate in areas because it contained obsolete information and
did not sufficiently integrate current and accepted diagnostic
procedures as well as the lack of current knowledge of the
relationships between conditions and comorbidities. Following the
release of the IOM report, VA created a musculoskeletal system
workgroup 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.
VA began rulemaking to remove obsolete diagnostic codes, modernize
the names of selected diagnostic codes, revise descriptions and
criteria, and add new diagnostic codes. VA published a proposed rule to
revise the regulations involving the musculoskeletal system within
VASRD on August 1, 2017 (82 FR 35719). Specifically, VA proposed to
rename conditions to reflect current medicine, remove obsolete
conditions, clarify ambiguities, and add conditions that previously did
not have diagnostic codes. Interested persons were invited to submit
comments on or before October 2, 2017. VA received comments from the
National Organization of Veterans' Advocates, American Association of
Nurse Practitioners, Paralyzed Veterans of America, and nine
individuals. VA has made limited changes based on these comments, as
discussed below.
General Terminology Changes
Two separate comments recommending specific terminology changes
were received.
One commenter suggested incorporating terminology used by claimants
or seen in service treatment records into the VASRD regulations. The
commenter stated that field medics do not always incorporate medical
terminology or use treatises when entering information in a
servicemember's medical record. The commenter also noted that
individual claimants may not have sufficient medical training to
utilize specific technical terminology when claiming a given
disability. A stated intent of the current update to the rating
schedule, as stated in the preamble to the proposed rule, is to employ
current medical terminology in order to clarify and standardize the
disability criteria. Accordingly, VA relies on medical standards and
treatises when updating terminology.
As to the effect of technical terminology in part 4 on a veteran
attempting to claim disability, there is none. Claimants are not
required to possess medical knowledge or expertise when describing a
claimed condition; they are simply required to describe their
disability and/or symptoms as they experience and observe them.
Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Moreover, VA
reviews medical records with the understanding that different
examiners, at different times, will not describe the same disability in
the same language; it is the responsibility of the rating specialist to
interpret reports of examination in the light of the whole recorded
history, reconciling the various reports into a consistent picture so
that the current rating may accurately reflect the elements of
disability present. 38 CFR 4.2. Accordingly, VA reviews the entire
evidentiary record in light of the disability claimed, circumstances of
military service, and all other applicable records to create a cohesive
picture of the disability in question; it is not the responsibility of
the claimant or a military medical provider to employ terminology that
necessarily matches the VASRD. Thus, VA makes no changes related to
this comment.
Another commenter suggested use of the phrases ``greater than or
equal to'' and ``less than or equal to'' rather than ``limited to XX
degrees or more'' or ``limited to XX degrees or less'' for criteria
based on numerical range of motion measurements. While this comment was
taken into consideration, VA notes the phrases ``limited to XX degrees
or more'' or ``limited to XX degrees or less'' are consistent with
medically-accepted language used in the VASRD for range of motion
measurement and elsewhere, and are well-understood and applied by VA
claims processors efficiently and accurately. Accordingly, VA makes no
changes based on this comment.
Musculoskeletal Diagnostic Codes
I. Diagnostic Codes (DCs) 5002-5009
One commenter asked if there was a DC for infectious arthritis.
While there is not a standalone DC for infectious arthritis, infectious
arthritis may be evaluated under DCs 5004 through 5009, depending on
the infection associated with the arthritic findings. VA makes no
change based on this comment.
Another commenter requested that VA use the same non-exhaustive
list of conditions listed in proposed DC 5002's Note (1) for other
selected DCs (5054, 5055, and 5250-5255). The list of conditions in DC
5002 is being provided to further explain the change from this DC
contemplating a specific condition to contemplating a category of
conditions. The other DCs suggested by the commenter are unlike
proposed DC 5002 because they employ criteria based on a specific
procedure (DCs 5054 & 5055) or defined range of motion measurement (DCs
5250-5255). VA makes no changes based on this comment.
Lastly, a commenter expressed concern that the directive to
``assign the higher evaluation'' under DC 5002 could result in
situations where an active disease process results in a lower
evaluation than if the residuals of the disease itself were evaluated.
The directive in proposed Note (3) for DC 5002 specifically addresses
this concern. As indicated in the preamble to the proposed rule, the
purpose of Note (3) is to prevent ratings for both residuals and active
disease process at the same time; instead, the Note requires claims
processors to assign the evaluation more advantageous to the claimant:
An evaluation for active disease process OR an evaluation for the
residual effects of the disease (including combined and/or bilateral
factors, where applicable). Accordingly, VA makes no change based on
this comment.
II. DCs 5010-5024
One commenter suggested that arthritis ratings under DC 5010
resulting from separate traumas should not receive a combined
evaluation under 38 CFR 4.25. VA makes no changes based on this
comment, as the evaluations under the VASRD are based on the average
impairment in earnings due to disabilities resulting from military
service; the specific incidents or causes during military service are
generally immaterial to a rating. As a practical matter, attempting to
categorize functional impairment by specific traumatic instances would
prove ineffective and often impossible, as specific instances of trauma
are not necessarily captured in the treatment record for an individual.
One commenter asked how DC 5011 would help evaluate a case of
facial fractures, hearing loss, a collapsed sinus, eye injury and so
forth. VA notes
[[Page 76455]]
that DC 5011 does not provide specific evaluation criteria; rather, it
serves as a standalone diagnostic code to track instances of
decompression illness (also known as generalized barotrauma or the
bends). As noted in the preamble to the proposed rule, residual
manifestations of decompression illness often involve other body
systems; the proposed evaluation criteria specifically directs claims
processors to evaluate residuals under the appropriate body system.
Accordingly, specific residual injuries will be evaluated under the
most appropriate diagnostic code in the VASRD, in accordance with the
findings and disability present. VA makes no changes based on this
comment.
Another commenter questioned what effect the changes to DCs 5010,
5013 and 5014 would have on determinations under 38 CFR 3.309. 38 CFR
3.309 identifies diseases subject to presumptive service connection
where certain circumstances of military service are otherwise met. This
section pertains to establishing service connection; it does not
involve the evaluation of any specified disability. The current
rulemaking has no impact on the provisions of section 3.309 and
therefore VA makes no changes based on this comment.
Another commenter recommended using the phrase ``medically-directed
therapy'' as opposed to ``prescribed therapeutic procedure'' in the
Note to DC 5012. While this comment was taken into consideration, VA's
selected term has a specific meaning and indicates a prescribed course
of treatment, as determined by a qualified medical professional, as
evidence of the severity of the disability and disease, in the
professional opinion of the provider. ``Medically-directed'' does not
have the same meaning as ``prescribed'' and its use here would leave
open for interpretation therapies that are either suggested at a lower
level of necessity or directed by someone who is not licensed/qualified
to prescribe treatment for malignancies. VA makes no changes based on
this comment.
One commenter suggested adding a Note to DC 5014 indicating that,
if medical evidence does not specifically indicate or state there are
no residuals, there is insufficient evidence to apply the provisions of
DC 5014. VA appreciates this comment but notes that 38 CFR 4.2
specifically instructs claims processors to return examinations as
inadequate for evaluation purposes if the examination report does not
contain sufficient detail or if a diagnosis is not supported by the
findings on examination. Accordingly, the suggested Note would be
duplicative of current regulations and VA makes no change.
Also, a commenter suggested adding notes to indicate where
hydrarthrosis, synovitis, and periostitis could be evaluated since VA
proposed removing specific DCs for these conditions. As noted in the
preamble to the proposed rule, hydrarthrosis and synovitis are signs of
underlying conditions that are already captured within the evaluation
criteria of other DCs. Likewise, periostitis is a non-specific
inflammatory process caused by underlying conditions that can be rated
in accordance with the primary diagnosis. VA sees no need to limit
these signs to specific DCs; they will be evaluated with an underlying
diagnosis. VA makes no changes based on this comment.
Finally, on further review, the sentence following DC 5024 is more
aptly described as a Note to DCs 5013 through 5024. As such, the final
rule recharacterizes it as a Note and removes as unnecessary the
proposed limitation that gout only be evaluated under DC 5003.
III. DCs 5051-5056 (Introductory Notes)
One commenter requested clarification as to why joint resurfacing
and total joint replacement qualify for 100 percent disability
compensation during the convalescent period, but partial joint
replacement does not. VA recognizes that partial joint replacement
(more accurately referred to as subtotal joint replacement) may result
in disability in a manner similar to joint resurfacing and/or total
joint replacement. However, VA currently lacks sufficient data to
determine that partial joint replacement warrants a temporary post-
surgical rating in lieu of a rating based on the effects of the
underlying disability. To that end, VA will consider adding criteria
specific to subtotal joint replacement in a future rulemaking, once
sufficient evidence is received and reviewed to provide adequate
evaluation criteria.
One commenter asked if revision procedures were eligible for the
same compensation as the original procedures. While this comment was
asked about hip replacement, it could be applied to all of the
prosthetic replacement DCs. If the original complete prosthetic
component is replaced, or, in addition to replacement of the original
component, additional components are installed, then the revision
procedure should be evaluated in the same manner as the initial
procedure. In other words, if the revision fully replaces the original
total prosthetic joint replacement, VA treats the complete revision
procedure in the same manner as the initial total joint replacement. To
that end, in this final rule, VA has recharacterized the proposed note
at the beginning of the ``Prosthetic Implants and Resurfacing''
subsection as Note (1) and added a Note (2) that directs claim
processors to only evaluate revision procedures in the same manner as
the original procedure if the revision completely replaces the original
components.
For organization and clarity, VA has also moved three other notes
to the beginning of the ``Prosthetic Implants and Resurfacing''
subsection and added a clarifying instruction. Specifically, the note
immediately following DC 5111 has been moved to the beginning of the
subsection and redesignated as Note (3). DC 5053's note and DC 5056's
Note (1), which were identical, have been moved and redesignated as
Note (4). An instruction that clarifies when the 100 percent evaluation
period begins and ends for DCs 5054 and 5055 is provided as Note (5).
And Note (2) under DC 5056 has been moved and redesignated as Note (6).
IV. DCs 5054 and 5055
Multiple comments were received for DCs 5054 and 5055. Generalized
objections included two commenters who shared their personal histories
involving revision procedures/surgeries on their hips as the underlying
basis for their objections. Two commenters also expressed reservations
with the reduction in the convalescent period for these DCs because of
non-sedentary or physically demanding occupations, as well as
additional service-connected disabilities that potentially complicate
the evaluation. In regard to using personal experiences to justify any
objection to the proposed changes, VA notes that 38 U.S.C. 1155 (the
statute that governs implementation of the ratings schedule) provides
that ratings shall be based, as far as practicable, upon the average
impairments of earning capacity resulting from such injuries in
civilian occupations. Accordingly, VA formulates the VASRD based on
average impairments in civil occupations, not isolated personal
experiences or the demands of specific occupations. In addition, the
reduction in convalescent periods is based on average recovery times,
as noted in the proposed rulemaking and sources cited therein. There
are provisions to address exceptional individual circumstances on a
case-by-case basis that fall outside the scope of this rulemaking. No
changes are made based on those comments.
[[Page 76456]]
Another commenter disputed the study cited in the preamble to the
proposed rule. The commenter used a quotation from the authors
characterizing the methodological quality as moderate to low and
comparisons of rates and speeds of return to work being hampered by
large variations in patient selection and measurement methods. VA
disagrees that the limitations identified by the commenter should
invalidate the justification to reduce the convalescent period from 12
months to 4 months for hip and knee replacements. There are multiple
studies within the medical literature which demonstrate sufficient
functional recovery well short of 12 months. The study cited in the
proposed rule focused upon a specific outcome (return to work without
restriction), rather than completion of the associated rehabilitation
program. VA convalescence rates are awarded at the 100 percent level--
which, in accordance with the criteria throughout 38 CFR part 4,
equates to a complete inability to work. Following the convalescent
period, VA assigns a non-convalescent evaluation based on residual
functional impairment, the purpose of which is to assess residual
disability and compensate for average earnings loss based on said
residual disability.
One commenter proposed that a reduction in benefits for these DCs
occur only after mandatory examination. Post-convalescence reductions
for these conditions occur without a mandatory examination, due to the
common nature of these medical procedures as well as the expected
outcome and residuals, as supported by medical evidence cited in the
preamble to the proposed rule. As stated in 38 CFR 4.1, the percentage
ratings represent as far as can practicably be determined the average
impairment in earning capacity resulting from such diseases and
injuries and their residual conditions in civil occupations. VA
acknowledges that there may be individual circumstances which require
additional consideration due to worse-than-expected residuals or the
factual need for additional convalescence. In these circumstances, a
claimant may submit a claim with pertinent treatment records to support
an increased evaluation for residuals or additional convalescence, all
without requiring a mandatory examination. VA makes no changes based on
this comment.
Another commenter proposed to extend the convalescent period
whenever a revision procedure is performed. While a revision procedure
may require additional time in the hospital following the procedure,
this time typically amounts to a few days. Additionally, while the
recovery may be potentially slower following a revision, VA is
currently unaware of published medical literature which quantifies this
recovery in a manner sufficient to identify a unique and/or extended
period of convalescence for purposes of the VASRD. Should such evidence
exist at a future date, VA will review it and consider revisions to the
criteria as necessary. At this time, however, VA makes no changes based
on this comment.
One commenter disagreed with the proposed reduction in the
convalescent period because (1) there was little to no public support
for such a reduction and (2) the studies used to support the reduction
were not specific to veterans. The language in 38 U.S.C. 1155
specifically contemplates a schedule of ratings based on the average
impairment in earnings from civil occupations, with revisions from time
to time in accordance with experience. If a particular disability's
effect on earnings capacity measurably changes (usually through a
combination of improved medical management and job market changes), VA
complies with its statutory authority by revising the criteria
contained in the VASRD to ensure evaluations are consistent with
available data. VA is unaware of any study pertinent to the
disabilities at issue that quantifies a different impact of a specific
disability or disabilities on the general population comparative to the
veteran population. Should such information become available, VA will
review it along with all other available scientific, medical, and
economic data available to ensure the VASRD provides the most accurate
and adequate evaluations. At this time, however, VA makes no revisions
based on these comments.
One commenter offered an alternative schema to VA's proposal for DC
5054. This commenter recommended a separate DC be created for hip
resurfacing. The commenter provided multiple sources to justify a
minimum evaluation within the criteria for this alternative schema
(citing multiple sources which compared resurfacing to prosthetic
replacement). The commenter also criticized VA's proposed revision for
DC 5054, asserting it was contradictory to government and industry
standards. The commenter asserted that the purpose and advantage of hip
resurfacing is bone preservation, not improved range of motion or
activity. Finally, the commenter stated that VA should evaluate
resurfacing and total arthroplasty under separate DCs.
VA makes no changes based on these comments for several reasons.
First, VA disagrees with the statement that a minimum evaluation for
hip resurfacing post convalescence similar to total arthroplasty is
required. As noted in the preamble to the proposed rule, joint
resurfacing preserves more of the original anatomy of the joint,
leading to greater functional potential, and ultimately less
occupational disability or impairment in earnings capacity compared to
a total arthroplasty. Also, the sources cited by the commenter refer to
the hip resurfacing procedure itself, the unique complications
associated with resurfacing, and how it compares to total arthroplasty.
While relevant in individual cases, potential complications in and of
themselves do not consistently predict either residual occupational
disability or average impairment in earnings capacity in a manner
consistent with VA's authority to maintain and revise the VASRD.
Additionally, as stated previously in response to similar comments,
should individual complications arise, VA has the means to address
these unique situations on a case-by-case basis either through
additional convalescence or increased evaluations. With regard to the
comment that VA's proposed revision is contrary to government and
industry standards, VA notes that the commenter did not provide
resources which establish either government or industry standards for
the evaluation of resurfacing or residual disability in light of
occupational impairment or earnings loss, and VA is unaware of an
official government or industry standard upon which to base any changes
to the proposed rule.
However, to further clarify VA's intent to provide a minimum
evaluation following only total joint replacement, VA has added
language to the Note following final DCs 5054 and 5055 clarifying that
the minimum evaluation does not apply to resurfacing. Regarding the
comment that range of motion as a residual for hip resurfacing would
not be addressed under other DCs, VA notes that the (proposed and now
final) rule directs the rater to use DCs 5250 through 5255 to evaluate
such residuals. DCs 5251, 5252, and 5253 address decreased range of
motion of the hip joint as a potential residual. Additionally, VA notes
that the commenter's reference to ``bone preservation'' is consistent
with VA's explanation in the preamble of the proposed rule (noting that
resurfacing ``preserves more of the original anatomy''). In any event,
the intent of the VASRD is to assess and evaluate
[[Page 76457]]
residual disability and occupational impairment. Currently, VA is
unaware of medical or economic data to support an evaluation for hip
resurfacing based on the quantity of bone preserved. Additionally, VA
notes that a single DC for both resurfacing and prosthetic component
replacement is more appropriate than having separate DCs, as the
symptoms leading up to and resulting from both procedures are similar
and predictable (loss of weight bearing capability, muscle strength/
endurance, and range of motion due to complications such as component
loosening, infection, etc.).
V. DCs 5120-5173
One commenter stated that the rating for disarticulation of the
shoulder in DC 5120 may conflict with the rules for rating the shoulder
muscles and ankylosed joints. VA notes that a disarticulation at the
shoulder joint removes all the joints along with their associated
muscles of the upper extremity. Thus, there would be no muscles or
joints remaining, and therefore no evaluation based on ankylosis of the
joint could be assigned.
Another commenter asked why VA removed prompts from certain DCs
directing claims processors to consider eligibility for special monthly
compensation (SMC). The removal of the prompts from DCs in the proposed
rule was an unintentional error. Accordingly, VA has re-inserted the
prompts to consider SMC for all applicable DCs.
One commenter questioned both the need and the basis for the
proposed changes to DC 5170. The commenter disagreed with VA's proposed
criteria modification to include different amputation degrees within
one DC and argued that at least two different DCs was a more
appropriate approach. As noted in the preamble to the proposed rule, VA
is adding this terminology to incorporate a residual which causes a
similar disability to the one captured by current DC 5170. Furthermore,
the amputation levels captured in the (proposed and now final) DC cause
similar effects on occupational disability and impairment of earnings
capacity. By grouping conditions and injuries with similar functional
impairment together, VA provides accurate and adequate evaluations that
reflect actual functional impairment while also providing more
efficient and timely delivery of benefits.
VI. DCs 5235-5243
One commenter requested that VA include more medical diagnoses
synonymous with intervertebral disc syndrome (IVDS) and arthritis
because, in the commenter's view, claims processors are inconsistent
with acknowledging other similar conditions/diagnoses that are not
specifically labeled as IVDS, arthritis, or degenerative joint disease
(DJD). VA's original intent was to classify disability associated with
IVDS under DC 5243 and all other intervertebral disc disabilities under
DC 5242. To clarify that issue, VA has added such an instruction to
final DC 5243.
VII. DC 5244
For newly proposed DC 5244, two commenters had questions, and one
commenter offered to provide training assistance to claims processors
learning how to evaluate this newly proposed DC. The issue of training
is beyond the scope of this rulemaking and therefore VA does not
respond. One commenter stated that using the term ``paraplegia'' was
problematic because it lumped a number of disabilities together and
because paraplegia has a legal meaning. Specifically, the commenter
questioned if paraplegia under DC 5244 also applies to paraplegia
caused by amyotrophic lateral sclerosis (ALS) or multiple sclerosis
(MS) and whether anal and bladder sphincter control impairment is
necessary for assigning paraplegia under this DC, as is required to
qualify for SMC under 38 CFR 3.350(e)(2), which is titled Paraplegia.
The other commenter asked if incomplete paralysis is compensable.
First, VA intended DC 5244 to rate paralysis resulting from trauma, as
indicated in the title. It is separate and distinct from paralysis
caused by either ALS or MS, which are neurological diseases and are
rated using the appropriate neurological DC hyphenated with DC 5110
(loss of use of both feet). Second, although paraplegia is the title of
Sec. 3.350(e)(2), that provision provides requirements for SMC;
paraplegia awarded under DC 5244 does not require impairment of anal
and bladder sphincter control. Third, with regard to the comment on
incomplete versus complete paralysis, VA has provided a note in this
final rule that, if traumatic paralysis does not cause loss of use of
both hands or both feet, it is incomplete paralysis and must be rated
using the appropriate diagnostic code (e.g., 38 CFR 4.124a, Diseases of
the Peripheral Nerves).
VIII. DCs 5255 and 5257
One commenter concurred with the proposed changes to DC 5255. VA
thanks the commenter for the input. Other commenters (1) asked if
patellofemoral pain syndrome (PFPS) was included in DC 5255; (2) asked
what would happen to DCs 5258 and 5259, given the proposed changes to
DC 5257; and (3) recommended that claims processors be provided
additional guidance for evaluating malunion under DC 5255. First, PFPS
is a symptom that may result from patellar instability, but is a less
appropriate fit for DC 5255, which contains criteria requiring
fractures or malunions. Second, VA intends no changes to DCs 5258 or
5259, as they involve different components of the knee; accordingly,
the changes to DC 5257 have no impact on DCs 5258 and 5259. Lastly, VA
will provide non-regulatory guidance and training to claims processors
for evaluating malunion under DC 5255.
Four additional commenters had concerns with and suggested
alternatives to the proposed criteria of DC 5257. The first commenter
expressed concern that the term ``physician prescribed'' excludes nurse
practitioners, though such prescriptions are well within their scope of
practice. VA agrees, and has substituted ``medical provider'' in place
of ``physician'' to indicate that such instructions are intended to
include qualified medical providers such as nurse practicioners.
The second commenter argued that (1) there is subjectivity with
measuring translation; and (2) operative intervention should not be the
basis for distinguishing a 30 percent evaluation from a 20 percent
evaluation. After review, VA agrees that using translation can add an
unintended amount of subjectivity to the evaluation criteria. To that
end, VA has revised the proposed criteria to remove the reference to
translation, and, instead, will use the elements of ligament status,
instability, and need for assistive devices/bracing. A 10 percent
evaluation will be granted if a sprained, incompletely torn ligament,
or completely torn ligament (whether repaired, unrepaired, or failed
repair) causes persistent instability but does not require a
prescription for either bracing or an assistive device for ambulation.
A 20 percent evaluation will be granted under one of two circumstances:
(a) In the presence of a sprained, incompletely torn ligament, or
repaired completely torn ligament that causes persistent instability
and a medical provider prescribes a brace and/or assistive device; or,
(b) in the presence of an unrepaired completely torn ligament or
completely torn ligament with failed repair that causes persistent
instability and requires a prescription for either a brace or an
assistive device for ambulation. A 30 percent evaluation will be
granted for an unrepaired completely torn ligament or completely torn
ligament with failed
[[Page 76458]]
repair that requires a prescription for both a brace and an assistive
device for ambulation. As to the original comment, this final rule
considers both operative intervention and prescriptions as a basis for
distinguishing the 30 percent and 20 percent evaluations. As a result
of these changes, proposed Note (1), providing measurements of joint
translation, has been withdrawn.
The third commenter felt that VA gave no explanation for the new
criteria, that the criteria should include assistive devices and/or
bracing whether prescribed by a provider or not, and that the criteria
requiring both an assistive device and bracing was too restrictive. In
the preamble to the proposed rule, VA provided a full explanation for
the evaluation criteria for knee instability, citing multiple peer-
reviewed medical sources which further support the criteria used.
Regarding the requirement for provider-prescribed bracing, braces and
other assistive devices are commonly and readily available for purchase
without prescription; the use of such devices, without a prescription,
does not always demonstrate the presence of a knee disability impairing
earning capacity. A qualified medical professional's prescription,
however, provides objective evidence of the instability. Accordingly,
for purposes of assessing the severity of knee instability, this
(proposed and final) rule considers bracing in its evaluation criteria
only when the brace or assistive device is prescribed by a provider.
Moreover, to the extent the commenter believes that requiring bracing
and an assistive device is too restrictive, this final rule provides a
20% rating where only one of the two has been prescribed.
The fourth commenter asserted that the proposed changes to DC 5257
(1) will result in compensation that is either completely detached from
functional loss or not commensurate with the functional loss being
evaluated; (2) completely ignore functional loss and misplace emphasis
on physical abnormalities and recommended treatment; and (3) did not
consider knee instability caused by conditions other than ligament
damage.
VA appreciates the comment, but disagrees with the commenter's
first assertion. Per 38 U.S.C. 1155, the schedule and its ratings shall
be based, as far as practicable, upon the average impairments of
earning capacity resulting from such injuries in civil occupations. VA
compensates for functional loss that results in an impairment of
earning capacity. The criteria for DC 5257, as indicated in the
preamble to the proposed rule, incorporate both functional loss
elements (assistive devices & bracing), as well as diagnostic elements
(sprain, incomplete ligament tear, complete ligament tear). These
criteria, which rely upon published sources reflecting current medical
standards, serve as accurate proxies for functional loss of the
magnitude that negatively impacts earnings. Furthermore, the proposed
(and now final) criteria are easily observed and measured.
Additionally, given the progressive manner of the criteria, VA provides
compensation commensurate with the severity of the disability.
As to the commenter's second assertion that the proposed criteria
base evaluations on recommended treatment, that is not the case. The
proposed (and now final) criteria compensate for residual disability
after specific treatment interventions are prescribed, not on the
prescribed treatment itself, as well as observable and measurable
factors to create a more complete assessment for evaluation purposes.
Third, with regards to the causes for knee instability other than
ligament damage, VA intended the evaluation for patellar instability to
be limited to the patellofemoral complex only. Thus, this final rule
clarifies the proposed criteria and requires a diagnosed condition
involving the patellofemoral complex for a patellar instability
evaluation. A history of surgical repair (or the lack thereof) and the
prescriptions for the instability dictate whether that evaluation will
be 10, 20, or 30 percent (consistent with the format for recurrent
subluxation evaluations).
Given this revision, VA has added a note (Note (1)) explaining that
the patellofemoral complex consists of the quadriceps tendon, patella
(knee cap), and patellar tendon. Proposed Note (2), despite technical
edits, still provides that certain surgical procedures do not qualify
as surgical repair under the patellar instability provisions of this
DC.
In further response to the commenter's contention, we note that
knee instability resulting from muscle failure can be evaluated under
DC 5313 or DC 5314. Furthermore, with regards to knee instability and
specific occupations, which the commenter also raised, compensation is
based on the average of impairment in earning capacity for civil
occupations, not the severity of disability encountered in selected
occupations. Lastly, the language alternatively proposed by the
commenter, which stems from a 2003 VA proposal, does not accommodate
patellar instability, a shortcoming VA is unwilling to accept. VA notes
that the 2003 proposal was withdrawn specifically to address concerns
and issues with the rulemaking and to develop a new proposal at a later
date. 69 FR 22757. Therefore, VA makes no revisions based on this
commenter's input.
IX. DC 5262
Unrelated to any particular comment, VA has revised the language of
DC 5262 in this final rule to provide clarity on the specific criteria
distinguishing the 30, 20, and 10 percent ratings for shin splints.
Moreover, VA has decided not to adopt a rule that would require imaging
evidence for a compensable rating; as the preamble to the proposed rule
noted, shin splints are typically diagnosed--and can be properly
assessed--by history and physical examination. M. Winters et al.,
``Medial tibial stress syndrome can be diagnosed reliably using history
and physical examination,'' 52(19) Br. J. Sports Med.1267-72 (2018).
As to the comments, one commenter asked two questions: (1) Is there
ever a scenario where shin splints and fractured tibia/fibula do not
have overlapping symptoms, and (2) Is a distal fracture rated as an
ankle disability and shin splints as a knee disability? Whether or not
symptoms from shin splints and a certain fracture may or may not
overlap is a medical question for medical examiners in individual
cases. Therefore, VA will not speculate on the answer to the first
question here. In regard to the second question, VA's intent is that a
tibia/fibula malunion be rated as either an ankle or knee disability.
Beyond malunion, however, uncomplicated tibia/fibula fractures should
still be rated under DC 5262.
X. DCs 5278-5285
Three commenters provided input for the proposed changes to these
codes. Besides the commenters who concurred, one commenter disagreed
with the criteria for proposed DC 5285, contending that veterans who
are not surgical candidates are punished by the proposed 20 and 30
percent criteria. To address those veterans who would potentially
benefit from surgical intervention, but who are not surgical
candidates, VA is adding a Note (2) to DC 5285 indicating that a
veteran who is recommended surgical intervention for plantar fasciitis
but is not a surgical candidate would be eligible for either the 20 or
30 percent evaluation levels. The Note proposed in the proposed rule is
recharacterized as Note (1). VA has also revised the wording of DC 5285
for clarity.
[[Page 76459]]
Muscle Injuries
One commenter concurred with proposed DC 5330. VA thanks the
commenter for the input.
Miscellaneous Issues
I. General Support for Rulemaking
Several commenters expressed support for particular revisions, as
well as the rulemaking in general. Many of these comments, which were
received from individuals as well as organizations in the veteran
community, expressed appreciation for VA's action in updating the
rating schedule for musculoskeletal disabilities. VA appreciates the
time and effort expended by these commenters in reviewing the proposed
rule and in submitting comments, as well as their support for this
rulemaking.
II. Public Access
One commenter requested public access to the information developed
by the musculoskeletal system workgroup. In the preamble to the
proposed rule, VA explained that the workgroup, comprised of subject
matter experts from VA, the Department of Defense, and medical
academia, held two public forums in August 2010 and June 2012,
discussing possible revisions to the musculoskeletal regulations. A
transcript of this public forum and all related materials are on file
and available for public inspection in the Office of Regulation Policy
and Management. (Contact information for that office is noted in the
ADDRESSES section of the proposed rule. 82 FR at 35719.)
VA emphasizes that the workgroup did not participate in the
deliberative rulemaking process; the workgroup 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, 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 these changes. Not only
did this provide the public with access to the source for a given
proposed change, it also confirmed that VA relied upon peer-reviewed
scientific and medical information to support a given change. While
similar information may have been presented by a workgroup member, 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, references in the proposed rule to the workgroup serve
as an explanatory background and introduction to the VASRD rewrite
project; the changes made by this rulemaking are not a reflection of
the workgroup or any workgroup member. All changes based on scientific
and/or medical information are a reflection of cited, published
materials which are available to the public. VA has made deliberative
materials available (via citation in the rulemaking) and is providing
access to materials from the public forum for public inspection at the
Office of Regulation Policy and Management.
III. Technical Corrections
On review, the current rating schedule refers evaluations of
inactive tuberculosis of the bones and joints (DC 5001) to 38 CFR
4.88b; however, Sec. 4.88b was redesignated to Sec. 4.88c in 1994.
Therefore, the final rule simply corrects this reference.
In addition, the final rule revises the subheading for DCs 5051 to
5056 to ``Prosthetic Implants and Resurfacing,'' which the proposed
rule noted in its regulatory text, but not in its preamble.
Also, DCs 5054 and 5055 have been reorganized to provide clarity to
the applicability of the evaluation criteria. The 100 percent
evaluation applies to both resurfacing and replacements. However, the
90, 70, 50, and 30 percent evaluations apply only to replacements.
Therefore, the subheading referencing ``replacement'' in these DCs was
relocated to the most appropriate location.
Lastly, VA made non-substantive edits to the parenthetical of DC
5242 and the proposed language for recurrent subluxation or instability
under DC 5257.
IV. Other Comments Unrelated to or Outside the Scope of This Rulemaking
VA received comments dealing with issues not directly related to
proposed amendments to the rating schedule for musculoskeletal
disabilities. One commenter suggested adding specified conditions to
the list of presumptive disabilities for Former Prisoners of War
(FPOW). Similarly, one commenter expressed concern over the impact of
this rulemaking on the provisions for presumptive service connection
for FPOWs in 38 CFR 3.309. Another commenter noted that the changes
would assist in providing necessary treatment for the listed
disabilities.
VA does not respond to these comments because they are either
unrelated to this rulemaking or beyond its scope.
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. The impact of
this rulemaking results in cost savings to the VA's compensation and
pension appropriations. There are no small entities involved,
associated have an affilitation with VA's compensation and pension
appropriations. Therefore, pursuant to 5 U.S.C. 605(b), the initial and
final regulatory flexibility analysis requirements of 5 U.S.C. 603 and
604 do not apply.
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.
The Office of Information and Regulatory Affairs has determined that
this rule is an economically significant regulatory action under
Executive Order 12866.
VA's impact analysis can be found as a supporting document at
www.regulations.gov, usually within 48 hours after the rulemaking
document is published. Additionally, a copy of this rulemaking and its
impact analysis are available on VA's website at www.va.gov/orpm/, by
following the link for VA Regulations Published from FY 2004 Through
Fiscal Year to Date. This rule is not subject to the requirements of
E.O. 13771 because this rule results in no more than de minimis costs.
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
[[Page 76460]]
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 64.013, Veterans Prosthetic Appliances;
64.104, Pension for Non-Service-Connected Disability for Veterans;
64.109, Veterans Compensation for Service-Connected Disability; and
64.110, Veterans Dependency and Indemnity Compensation for Service-
Connected Death.
Congressional Review Act
This regulatory action is a major rule under the Congressional
Review Act, 5 U.S.C. 801-808, because it may result in an annual effect
on the economy of $100 million or more. In accordance with 5 U.S.C.
801(a)(1), VA will submit to the Comptroller General and to Congress a
copy of this regulatory action and VA's Regulatory Impact Analysis.
List of Subjects in 38 CFR Part 4
Disability benefits, Pensions, Veterans.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. Pamela
Powers, Chief of Staff, Department of Veterans Affairs, approved this
document on April 1, 2020, for publication.
Dated: November 13, 2020.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
the Secretary, Department of Veterans Affairs.
For the reasons set out in the preamble, VA amends 38 CFR part 4,
subpart B, 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 by:
0
a. Revising diagnostic codes 5001, 5002, 5003, 5009-5015, 5018, 5020,
5022, 5023, 5024, 5054, 5055, 5120, 5160, 5170, 5201, 5202, 5242, 5243,
5255, 5257, 5262, and 5271;
0
b. Removing the notes following diagnostic codes 5053 and 5056 and the
note at the end of the table entitled ``Prosthetic Implants and
Resurfacing'';
0
c. Adding notes following diagnostic code 5024;
0
d. Revising the heading ``Prosthetic Implants'' to read ``Prosthetic
Implants and Resurfacing'' and adding notes 1 through 6 to it; and
0
e. Adding the diagnostic code 5244 to the table entitled ``The Spine''
and the diagnostic code 5285 to the table entitled ``The Foot''.
The revisions and additions read as follows:
Sec. 4.71a Schedule of ratings--musculoskeletal system.
Acute, Subacute, or Chronic Diseases
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
* * * * * * *
5001 Bones and joints, tuberculosis of, active or
inactive:
Active.............................................. 100
Inactive: See Sec. Sec. 4.88c and 4.89...........
5002 Multi-joint arthritis (except post-traumatic and
gout), 2 or more joints, as an active process:
With constitutional manifestations associated with 100
active joint involvement, totally incapacitating...
Less than criteria for 100% but with weight loss and 60
anemia productive of severe impairment of health or
severely incapacitating exacerbations occurring 4
or more times a year or a lesser number over
prolonged periods..................................
Symptom combinations productive of definite 40
impairment of health objectively supported by
examination findings or incapacitating
exacerbations occurring 3 or more times a year.....
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).
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.
[[Page 76461]]
5014 Osteomalacia, residuals of.
5015 Bones, neoplasm, benign.
* * * * * * *
5018 [Removed]
* * * * * * *
5020 [Removed]
5022 [Removed]
5023 Heterotopic ossification.
5024 Tenosynovitis, tendinitis, tendinosis or
tendinopathy.
Note to DCs 5013 through 5024: Evaluate the diseases
under diagnostic codes 5013 through 5024 as
degenerative arthritis, based on limitation of
motion of affected parts.
* * * * * * *
------------------------------------------------------------------------
Prosthetic Implants and Resurfacing
------------------------------------------------------------------------
Rating
-------------------------------
Major Minor
------------------------------------------------------------------------
Note (1): 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.
Note (2): Only evaluate a revision
procedure in the same manner as the
original procedure under diagnostic
codes 5051-5056 if all the original
components are replaced.
Note (3): The term ``prosthetic
replacement'' in diagnostic codes 5051-
5053 and 5055-5056 means a total
replacement of the named joint.
However, in DC 5054, ``prosthetic
replacement'' means a total replacement
of the head of the femur or of the
acetabulum.
Note (4): The 100 percent rating for 1
year following implantation of
prosthesis will commence after initial
grant of the 1-month total rating
assigned under Sec. 4.30 following
hospital discharge.
Note (5): The 100 percent rating for 4
months following implantation of
prosthesis or resurfacing under DCs
5054 and 5055 will commence after
initial grant of the 1-month total
rating assigned under Sec. 4.30
following hospital discharge.
Note (6): Special monthly compensation
is assignable during the 100 percent
rating period the earliest date
permanent use of crutches is
established.
* * * * * * *
5054 Hip, resurfacing or replacement
(prosthesis):
For 4 months following implantation .............. 100
of prosthesis or resurfacing.......
Prosthetic replacement of the head
of the femur or of the acetabulum:
Following implantation of .............. \1\ 90
prosthesis with painful motion
or weakness such as to require
the use of crutches............
Markedly severe residual .............. 70
weakness, pain or limitation of
motion following implantation
of prosthesis..................
Moderately severe residuals of .............. 50
weakness, pain or limitation of
motion.........................
Minimum evaluation, total .............. 30
replacement only...............
Note: At the conclusion of the 100
percent evaluation period, evaluate
resurfacing under diagnostic codes 5250
through 5255; there is no minimum
evaluation for resurfacing.
5055 Knee, resurfacing or replacement
(prosthesis):
For 4 months following implantation .............. 100
of prosthesis or resurfacing.......
Prosthetic replacement of knee
joint:
With chronic residuals .............. 60
consisting of severe painful
motion or weakness in the
affected extremity.............
With intermediate degrees of
residual weakness, pain or
limitation of motion rate by
analogy to diagnostic codes
5256, 5261, or 5262.
Minimum evaluation, total .............. 30
replacement only...............
Note: At the conclusion of the 100
percent evaluation period, evaluate
resurfacing under diagnostic codes 5256
through 5262; there is no minimum
evaluation for resurfacing.
* * * * * * *
------------------------------------------------------------------------
Amputations: Upper Extremity
------------------------------------------------------------------------
Rating
-------------------------------
Major Minor
------------------------------------------------------------------------
Arm, amputation of:
5120 Complete amputation, upper
extremity:
Forequarter amputation (involving \1\ 100 \1\ 100
complete removal of the humerus
along with any portion of the
scapula, clavicle, and/or ribs)....
[[Page 76462]]
Disarticulation (involving complete \1\ 90 \1\ 90
removal of the humerus only).......
* * * * * * *
------------------------------------------------------------------------
Amputations: Lower Extremity
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
Thigh, amputation of:
5160 Complete amputation, lower extremity:
Trans-pelvic amputation (involving complete removal \2\ 100
of the femur and intrinsic pelvic musculature along
with any portion of the pelvic bones)..............
Disarticulation (involving complete removal of the \2\ 90
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 loss 30
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 30 20
guarding 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
either DC 5003 or 5010)
5243 Intervertebral disc syndrome: Assign this
diagnostic code only when there is disc herniation with
compression and/or irritation of the adjacent nerve
root; assign diagnostic code 5242 for all other disc
diagnoses.
* * * * * * *
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.
Note: If traumatic paralysis does not cause loss of
use of both hands or both feet, it is incomplete
paralysis. Evaluate residuals of incomplete
traumatic paralysis under the appropriate
diagnostic code (e.g., Sec. 4.124a, Diseases of
the Peripheral Nerves).
[[Page 76463]]
* * * * * * *
------------------------------------------------------------------------
The Hip and Thigh
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
* * * * * * *
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
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
* * * * * * *
5257 Knee, other impairment of:
Recurrent subluxation or instability:
Unrepaired or failed repair of complete ligament 30
tear causing persistent instability, and a
medical provider prescribes both an assistive
device (e.g., cane(s), crutch(es), walker) and
bracing for ambulation.........................
One of the following:
(a) Sprain, incomplete ligament tear, or
repaired complete ligament tear causing
persistent instability, and a medical
provider prescribes a brace and/or
assistive device (e.g., cane(s),
crutch(es), walker) for ambulation.
(b) Unrepaired or failed repair of complete 20
ligament tear causing persistent
instability, and a medical provider
prescribes either an assistive device
(e.g., cane(s), crutch(es), walker) or
bracing for ambulation.....................
Sprain, incomplete ligament tear, or complete 10
ligament tear (repaired, unrepaired, or failed
repair) causing persistent instability, without
a prescription from a medical provider for an
assistive device (e.g., cane(s), crutch(es),
walker) or bracing for ambulation..............
Patellar instability:
A diagnosed condition involving the 30
patellofemoral complex with recurrent
instability after surgical repair that requires
a prescription by a medical provider for a
brace and either a cane or a walker............
A diagnosed condition involving the 20
patellofemoral complex with recurrent
instability after surgical repair that requires
a prescription by a medical provider for one of
the following: A brace, cane, or walker........
A diagnosed condition involving the 10
patellofemoral complex with recurrent
instability (with or without history of
surgical repair) that does not require a
prescription from a medical provider for a
brace, cane, or walker.........................
Note (1): For patellar instability, the
patellofemoral complex consists of the quadriceps
tendon, the patella, and the patellar tendon.
Note (2): A surgical procedure that does not involve
repair of one or more patellofemoral components
that contribute to the underlying instability shall
not qualify as surgical repair for patellar
instability (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:
Requiring treatment for no less than 12 30
consecutive months, and unresponsive to surgery
and either shoe orthotics or other conservative
treatment, both lower extremities..............
Requiring treatment for no less than 12 20
consecutive months, and unresponsive to surgery
and either shoe orthotics or other conservative
treatment, one lower extremity.................
Requiring treatment for no less than 12 10
consecutive months, and unresponsive to either
shoe orthotics or other conservative treatment,
one or both lower extremities..................
Treatment less than 12 consecutive months, one 0
or both lower extremities......................
* * * * * * *
------------------------------------------------------------------------
[[Page 76464]]
The Ankle
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
* * * * * * *
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
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
* * * * * * *
5285 Plantar fasciitis:
No relief from both non-surgical and surgical 30
treatment, bilateral...............................
No relief from both non-surgical and surgical 20
treatment, unilateral..............................
Otherwise, unilateral or bilateral.................. 10
Note (1): With actual loss of use of the foot, rate
40 percent.
Note (2): If a veteran has been recommended for
surgical intervention, but is not a surgical
candidate, evaluate under the 20 percent or 30
percent criteria, whichever is applicable.
------------------------------------------------------------------------
The Skull
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
(Authority: 38 U.S.C. 1155)
* * * * *
0
3. Amend Sec. 4.73 by:
0
a. Designating the introductory note as Note (1) and revising it;
0
b. Adding introductory note (2); and
0
c. Adding add diagnostic codes 5330 and 5331 to the table entitled
``Miscellaneous''.
The revising and additions 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 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.............
------------------------------------------------------------------------
* * * * *
0
4. Amend appendix A to part 4 as follows:
0
a. In Sec. 4.71a, revise diagnostic codes 5001, 5002, 5003, 5012,
5024, 5051, 5052, 5053, 5054, 5055, 5056, 5243, 5255, and 5257;
0
b. In Sec. 4.71a, remove the diagnostic code 5235-5243;
0
c. In Sec. 4.71a, add in numerical order diagnostic codes 5009, 5010,
5011, 5013, 5014, 5015, 5018, 5020, 5022, 5023, 5120, 5160, 5170, 5201,
5202, 5235, 5236, 5237, 5238, 5239, 5240, 5241, 5242, 5244, 5262, 5271,
and 5285; and
0
d. In Sec. 4.73, add an introduction note and diagnostic codes 5330
and 5331.
The revisions and additions read as follows:
Appendix A to Part 4--Table of Amendments and Effective Dates Since
1946
[[Page 76465]]
----------------------------------------------------------------------------------------------------------------
Diagnostic
Sec. code No.
----------------------------------------------------------------------------------------------------------------
* * * * * * *
4.71a......................................... 5001 Evaluation March 11, 1969; criterion February 7,
2021.
5002 Evaluation March 1, 1963; title, criteria, note
February 7, 2021.
5003 Added July 6, 1950; title February 7, 2021.
* * * * * * *
5009 Title, evaluation, note February 7, 2021.
5010 Title, criteria February 7, 2021.
5011 Title, criteria February 7, 2021.
5012 Criterion March 10, 1976; title, note February
7, 2021.
5013 Title February 7, 2021.
5014 Title February 7, 2021.
5015 Title February 7, 2021.
5018 Removed February 7, 2021.
5020 Removed November 30, 2020.
5022 Removed February 7, 2021.
5023 Title February 7, 2021.
5024 Criterion March 1, 1963; title, criteria
February 7, 2021.
* * * * * * *
5051 Added September 22, 1978; note February 7, 2021.
5052 Added September 22, 1978; note February 7, 2021.
5053 Added September 22, 1978; note February 7, 2021.
5054 Added September 22, 1978; title, criterion, and
note February 7, 2021.
5055 Added September 22, 1978; title, criterion, and
note February 7, 2021.
5056 Added September 22, 1978; note February 7, 2021.
* * * * * * *
5120 Title, criterion February 7, 2021.
5160 Title, criterion, note February 7, 2021.
* * * * * * *
5170 Title February 7, 2021.
* * * * * * *
5201 Criterion February 7, 2021.
5202 Criterion February 7, 2021.
* * * * * * *
5235 Replaces 5285-5295 September 26, 2003.
5236 Replaces 5285-5295 September 26, 2003.
5237 Replaces 5285-5295 September 26, 2003.
5238 Replaces 5285-5295 September 26, 2003.
5239 Replaces 5285-5295 September 26, 2003.
5240 Replaces 5285-5295 September 26, 2003.
5241 Replaces 5285-5295 September 26, 2003.
5242 Replaces 5285-5295 September 26, 2003; Title
February 7, 2021.
5243 Replaces 5285-5295 September 26, 2003; Criterion
September 26, 2003; Title February 7, 2021.
5244 Added February 7, 2021.
* * * * * * *
5255 Criterion July 6, 1950; criterion February 7,
2021.
* * * * * * *
5257 Evaluation July 6, 1950; criterion and note
February 7, 2021.
* * * * * * *
5262 Criterion February 7, 2021.
* * * * * * *
5271 Criterion February 7, 2021.
* * * * * * *
5285 Added February 7, 2021.
* * * * * * *
4.73.......................................... .............. Introduction Note criterion July 3, 1997; second
Note added February 7, 2021.
* * * * * * *
5330 Added February 7, 2021.
5331 Added February 7, 2021.
[[Page 76466]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
5. Amend appendix B to part 4 as follows:
0
a. Revise diagnostic codes 5002, 5003, 5009, 5010, 5011, 5012, 5013,
5014, 5015, 5018, 5020, 5022, 5023, 5024, 5054, 5055, 5120, 5160, 5170,
and 5242; and
0
b. Add diagnostic codes 5244, 5285, 5330, and 5331;
The revisions and additions 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.
* * * * * * *
5018.............................. [Removed]
* * * * * * *
5020.............................. [Removed]
* * * * * * *
5022.............................. [Removed]
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.
* * * * * * *
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 DC 5003 or 5010).
* * * * * * *
5244.............................. Traumatic paralysis, complete.
[[Page 76467]]
* * * * * * *
------------------------------------------------------------------------
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. Revising the entries for ``Amputation'' and ``Arthritis'';
0
b. Adding in alphabetical order an entry for ``Arthropathy'';
0
c. Revising the entry for ``Bones'';
0
d. Adding in alphabetical order entries for ``compartment syndrome'',
``decompression illness'', and ``heterotopic ossification'';
0
e. Revising the entry for ``Hip'';
0
f. Removing entries for ``Hydrarthrosis, intermittent'', and ``Myositis
ossificans''
0
g. Revising entries for ``Osteomalacia'', ``Osteoporosis, with joint
manifestations'', and ``Paralysis'';
0
h. Removing entry for ``Periostitis'';
0
i. Adding in alphabetical order an entry for ``Plantar fasciitis'';
0
j. Revising entry for ``Prosthetic implants'';
0
k. Adding in alphabetical order entries for ``Rhabdomyolysis, residuals
of'' and ``Spine: Degenerative arthritis, degenerative disc disease
other than intervertebral disc syndrome'';
0
l. Removing entry for ``Synovitis''; and
0
m. Revising entry for ``Tenosynovitis''
The revisions and additions 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
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
[[Page 76468]]
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
* * * * * * *
Compartment syndrome.................................... 5331
* * * * * * *
Decompression illness................................... 5011
* * * * * * *
Heterotopic ossification................................ 5023
Hip:
Flail joint......................................... 5254
* * * * * * *
Osteomalacia, residuals of.............................. 5014
* * * * * * *
Osteoporosis, residuals of.............................. 5013
* * * * * * *
Paralysis:
Accommodation....................................... 6030
Agitans............................................. 8004
Complete, traumatic................................. 5244
* * * * * * *
Plantar fasciitis....................................... 5285
[[Page 76469]]
* * * * * * *
Prosthetic implants:.................................... 5056
Ankle replacement................................... 5052
Elbow replacement................................... 5054
Hip, resurfacing or replacement.....................
Knee, resurfacing or replacement.................... 5055
Shoulder replacement................................ 5051
Wrist replacement................................... 5053
* * * * * * *
Rhabdomyolysis, residuals of............................ 5330
* * * * * * *
Spine:
Degenerative arthritis, degenerative disc disease 5242
other than intervertebral disc syndrome............
* * * * * * *
Tenosynovitis, tendinitis, tendinosis or tendinopathy... 5024
* * * * * * *
------------------------------------------------------------------------
[FR Doc. 2020-25450 Filed 11-27-20; 8:45 am]
BILLING CODE 8320-01-P