[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