[Federal Register Volume 86, Number 187 (Thursday, September 30, 2021)]
[Rules and Regulations]
[Pages 54081-54089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19997]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AQ71
Schedule for Rating Disabilities; The Genitourinary Diseases and
Conditions
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
Schedule for Rating Disabilities (VASRD) by revising the portion of the
schedule that addresses the genitourinary system. This action ensures
that the rating schedule uses current medical terminology and provides
detailed and updated criteria for evaluation of genitourinary
conditions for disability rating purposes.
DATES: This final rule is effective November 14, 2021.
FOR FURTHER INFORMATION CONTACT: Ioulia Vvedenskaya, M.D., M.B.A.,
Medical Officer, VASRD Program Office (210), Compensation Service
(21C), Veterans Benefits Administration, Department of Veterans
Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-9752.
(This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION: On October 15, 2019, VA published the
proposed rule for Schedule of Rating Disabilities; The Genitourinary
Diseases and Conditions in the Federal Register. See 84 FR 55086. VA
received 12 comments during the 60-day comment period. VA appreciates
the comments submitted in response to the proposed rule. Based on the
rationale stated in the proposed rule and in this document, the
proposed rule is adopted as a final rule with minor changes noted
below.
[[Page 54082]]
I. Comments of General Support
One commenter welcomed the proposed changes to 38 CFR 4.115a,
including the replacement of a vague term (``intermittent intensive
management'') with a more specific reference (``suppressive drug
therapy'') in the urinary tract infection (UTI) criteria. The commenter
supported VA's proposal to eliminate subjective terms such as
``markedly,'' ``some,'' and ``slight'' in the renal dysfunction
criteria and to replace them with specific, objective laboratory
findings, such as the glomerular filtration rate (GFR) and albumin/
creatinine ratio (ACR). The commenter noted that these revisions will
likely result in a more efficient application of the rating schedule of
disabilities and will benefit many veterans with kidney diseases. VA
appreciates the commenter's support and makes no changes based on this
comment.
Another commenter supported VA's proposal to update medical
terminology and 38 CFR 4.115a. The commenter noted that the proposed
changes include more specific, objective laboratory findings such as
GFR. The commenter also noted that the National Kidney Foundation
indicated that an estimated glomerular filtration (eGFR) is the best
test to measure the level of kidney function and to determine the stage
of the kidney disease. VA appreciates the commenter's support and makes
no changes based on this comment.
II. Comments Regarding 38 CFR 4.115a
One commenter expressed an opinion that the GFR values in a
previously proposed rule, which was published on July 28, 2017, are
more in line with National Kidney Foundation standards. See 82 FR
35140. However, that July 2017 proposal was formally withdrawn through
notice published in the Federal Register on March 5, 2019. See 84 FR
7844. Although the commenter asserted that the July 2017 proposal's GFR
values more accurately reflected disease progression, VA found during
its internal review that the renal dysfunction rating criteria proposed
in July 2017 contained erroneous values and units of measure for ACR
and GFR. These erroneous proposed values were not in line with the
National Kidney Foundation guidelines and would have resulted in
erroneous disability evaluations for multiple renal disabilities. In
contrast, the October 2019 proposed rule cited corrected GFR values
aligned with the National Kidney Foundation's definition and
classification of chronic kidney disease. Nat'l Kidney Found., ``KDIGO
2012 Clinical Practice Guideline for the Evaluation and Management of
Chronic Kidney Disease,'' 3(1) Kidney Int'l Suppl. 5 (Jan. 2013),
available at https://kdigo.org/wp-content/uploads/2017/02/KDIGO_2012_CKD_GL.pdf (last viewed May 15, 2020) [hereinafter
``KDIGO'']. Therefore, VA makes no changes based on this comment.
Another commenter stated that a recent study showed that an
overestimation of renal function was correlated with patients' post-
amputation status. The commenter stated that this study suggested that
a cystatin C test would be a more accurate measure of kidney function
in patients who have had amputations. According to the National Kidney
Foundation, a blood test for cystatin C can be helpful in some
instances, but it is not the usual or regular way to estimate a GFR.
National Kidney Foundation, ``Cystatin C,'' https://www.kidney.org/atoz/content/cystatinC (last viewed May 15, 2020). A recently published
study examined the accuracy of kidney function estimates when
prescribing renally-eliminated medications in non-traumatic amputees.
Aakjaer et al., ``Differences in Kidney Function Estimates Based on
Creatinine and/or Cystatin C in Non-Traumatic Amputation Patients and
Their Impact on Drug Prescribing,'' 8(1) J Clin Med. 89 (2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6351924/ (last viewed May 15,
2020). The conclusions of this study highlighted the fact that a non-
traumatic amputation of a lower extremity has a significant effect on
both eGFR and cystatin C. Furthermore, there are significant
differences between eGFR and cystatin C (both before and after
amputation) and these differences impact how renally-eliminated
medications should be prescribed. VA appreciates this comment. However,
the VA rating schedule for disabilities is not used for diagnosis and
treatment of medical conditions; it is used to evaluate disabilities in
accord with average earnings loss. VA has determined that, for VA
disability evaluation purposes, GFR, eGFR, and ACR values present
adequate measurements of functional impairment due to kidney disease.
VA makes no changes based on this comment.
Another commenter disagreed with the changes made in 38 CFR 4.115a
by stating that decreasing the required GFR for the 80, 60 and 30
percent rating criteria would disqualify many veterans with chronic
kidney disease from future increases in their disability rating if
their conditions worsen. However, VA did not propose a decrease in GFR
values; rather, VA replaced subjective terms such as ``markedly,''
``some,'' and ``slight'' in the current evaluation criteria with
specific, objective laboratory findings, such as GFR and ACR. To the
extent that the comment was intended to suggest that VA should use the
GFR values in the proposed rule published in July 2017 and later
withdrawn, VA has determined, as stated above, that the GFR values
proposed in October 2019 are more accurate and better aligned with the
National Kidney Foundation's definition and classification of chronic
kidney disease. VA makes no changes based on this comment.
The same commenter was concerned that, under the proposed GFR
values, a veteran would have to be at the point of getting a kidney
transplant in order to reach an 80 percent disability evaluation. VA
proposed an 80 percent evaluation for individuals with a GFR between 15
and 29 mL/min/1.73 m\2\ for at least three consecutive months. This
aligned VA's functional impairment evaluation with the most current
clinical guidelines. Nat'l Kidney Found., ``Managing Your Adult
Patients Who Have a Kidney Transplant,'' at 2 (2011), available at
https://www.kidney.org/sites/default/files/02-50-4079_ABB_ManagingTransRecipBk_PC.pdf (last viewed May 15, 2020)
[hereinafter ``Managing'']. According to the National Kidney Foundation
guidelines, only patients with kidney failure (GFR value <15 or
dialysis) are considered for kidney replacement therapy (kidney
transplant). Id. For patients with severely decreased kidney function
(GFR between 15 and 29 mL/min/1.73 m\2\), a referral to a nephrologist
for evaluation of chronic kidney disease progression is recommended.
Id. Such evaluation would include a range of activities in preparation
for kidney replacement therapy such as patient and family education,
dialysis access, and preemptive transplant. Id. VA makes no changes
based on this comment.
Another commenter referenced a study that showed a link between
kidney disease and/or kidney failure and prolonged use of proton pump
inhibitors such as Prilosec and Nexium. The commenter suggested that
the overuse and/or prolonged use of proton pump inhibitors during
military service and the medications' side effects should be included
in the schedule for rating disabilities. VA appreciates this comment.
The comment appears directed more toward establishment of service
connection for a condition resulting in disability than to rating the
level of disability attributable to the
[[Page 54083]]
condition. Nonetheless, to ensure that the full range of relevant
factors is adequately addressed, VA intends to establish a work group
that will consider this issue at a future time. Upon consideration and
assessment of the work group's findings, VA will determine whether any
additional amendments to the criteria are necessary; if so, they would
be addressed in a future proposal. At this time, however, VA makes no
changes based on this comment.
Another commenter expressed concern that the proposed rule did not
make clear how the stages of chronic kidney disease (CKD) translate
into the proposed rating criteria for renal disfunction. To be clear,
VA proposed 100, 80, 60, 30, and 0 percent evaluations based on the
stages of CKD according to most current clinical guidelines,
specifically, those of the National Kidney Foundation. See KDIGO at 8.
The National Kidney Foundation guidelines distinguish between patients
with kidney failure (that is, GFR value <15 or dialysis), severely
decreased kidney function (GFR value 15 to 29), moderately to severely
decreased kidney function (GFR value 30 to 44), mildly to moderately
decreased kidney function (GFR value 45 to 59), and mildly decreased
kidney function (GFR value 60 to 89). Id. VA's proposed (and now final)
rating criteria for renal dysfunction provide the same staging. VA
makes no changes based on this comment.
Another commenter welcomed VA's decision to base its disability
evaluations for renal dysfunction on GFR and ACR laboratory findings,
but was concerned that VA would use only these laboratory findings
without taking into consideration other available evidence in the
claims file. By law, VA must consider all available evidence when
determining whether the criteria for a particular a disability
evaluation are met. 38 U.S.C. 5107(b). As noted above, the GFR and ACR
laboratory findings are an objective, accurate, and standard method for
measuring renal dysfunction. Other relevant evidence in the claims file
may implicate broader issues such as separate ratings or secondary
service connection in a given case but, for the renal dysfunction
rating specifically, the GFR and ACR laboratory findings will govern.
VA makes no changes based on this comment.
The same commenter referenced a National Institutes of Health (NIH)
study and alleged that renal dysfunction due to cold injury-related
venous congestion cannot be rated based on GFR values. VA disagrees.
The NIH report does not appear to make such an allegation; indeed, it
used GFR values to measure renal impairment. Mullens et al.,
``Importance of Venous Congestion for Worsening of Renal Function in
Advanced Decompensated Heart Failure,'' 53(7) J Am Coll Cardiol. 589-
596 (2009), available at https://pubmed.ncbi.nlm.nih.gov/19215833/
(last visited May 19, 2020). According to the National Kidney
Foundation, GFR is widely accepted as the best overall index of kidney
function, KDIGO at 19, and the commenter does not appear to present an
alternative measure. VA makes no changes based on this comment.
The same commenter stated that basing the renal dysfunction rating
on GFR values would exclude combat veterans with warm water immersion
foot and paddy foot injuries from receiving VA disability compensation.
VA disagrees. To the extent that these injuries cause renal
dysfunction, that dysfunction can be measured through GFR, and
compensation can be provided based on the GFR value. VA makes no
changes based on this comment.
The same commenter proposed the addition of new diagnostic codes
for kidney dysfunction due to the warm water immersion foot and paddy
foot injuries. VA appreciates this comment. To ensure that the full
range of relevant factors is adequately addressed, VA intends to
establish a work group that will consider this issue at a future time.
Upon consideration and assessment of the work group's findings, VA will
determine whether any additional amendments to the criteria are
necessary; if so, they would be addressed in a future proposal. At this
time, however, VA makes no changes based on this comment.
Based on its internal review, however, VA makes one change to the
general rating formula for renal dysfunction: Adding the word
``eligible'' to the 100 percent evaluation that describes a kidney
transplant recipient. This addition is made to ensure that all veterans
with service-connected renal disease who are eligible to receive a
kidney transplant will be entitled to a 100 percent evaluation as soon
as they are deemed eligible for a kidney transplant, whether or not the
transplant has been scheduled.
III. Comments Regarding Diagnostic Codes 7520 Through 7522
VA received several comments regarding the proposed changes to DCs
7520 through 7522, which address removal and deformity of the penis.
One commenter asked VA to provide a rationale for its decision to
remove the ability to rate the removal of the penis or glans as voiding
dysfunction. Under most circumstances, the removal of the penis or
glans does not result in voiding dysfunction. Most commonly, the loss
of penis or glans will affect the ability to void while standing, which
is not considered a compensable functional impairment under the
criteria for voiding dysfunction in 38 CFR 4.115a. Santucci et al.,
``Penile Fracture and Trauma,'' Medscape (updated 2019), https://emedicine.medscape.com/article/456305-overview (last visited May 15,
2020). Furthermore, if, in the course of penis or glans surgical
removal, there is associated urethral trauma resulting in voiding
dysfunction, it should be separately rated under DC 7518, which
addresses the stricture of the urethra. For these reasons, VA does not
find it appropriate to direct rating personnel to reference the voiding
dysfunction criteria of 38 CFR 4.115a when evaluating DCs 7520 and
7521. VA therefore makes no changes based on this comment.
The same commenter recognized that erectile dysfunction alone may
not equate to a reduction in earning capacity, but nevertheless
asserted that VA should acknowledge that erectile dysfunction could
lead to mental distress, such as depression and anxiety, and could
impact a veteran's ability to work. The commenter recommended that VA
grant compensation for any secondary condition that is related to
erectile dysfunction that causes a reduction in earning capacity. VA
agrees with the commenter's assessment that a mental disorder related
to service-connected erectile dysfunction could warrant secondary
service connection. That mental disorder would require its own
diagnosis, service connection, and a disability evaluation under 38 CFR
4.130, which governs ratings for mental disorders. VA already
recognizes this concept in 38 CFR 3.310(a), which directs that any
disability which is proximately due to or the result of a service-
connected disability shall be service connected. VA makes no changes
based on this comment.
Another commenter disagreed with the proposed changes to DC 7522,
which addresses erectile dysfunction and penile deformity. The
commenter expressed concern that, by removing a compensable evaluation
for penis deformity, VA will unreasonably deprive certain veterans of
benefits, specifically, veterans with Peyronie's disease. The commenter
listed several signs and symptoms of Peyronie's disease to include scar
tissue, a
[[Page 54084]]
significant bend to the penis, erection problems, shortening of the
penis, pain with or without erection, and mental health disorders due
to stress and anxiety. The commenter indicated that the severity of the
overall impact of Peyronie's disease on male veterans is evidenced by
the prevalence of mental health disorders associated with it. The
commenter expressed an opinion that the functional impairment due to
Peyronie's disease affects veterans' ability to function under the
ordinary conditions of life and work. Additionally, the commenter
stated that, though disabilities relating to creative organs may not
affect earning capacity directly, they impact non-economic factors such
as personal inconvenience, social inadaptability, or psychological
factors. The commenter proposed the addition of a diagnostic code and
specific rating criteria for Peyronie's disease, including penile
deformity and pain.
Moreover, two commenters asked VA to provide a rationale for its
decision to exclude Peyronie's disease from ratable conditions. The
commenters expressed concern that Peyronie's disease may be caused by
trauma as a result of an in-service injury and, in some cases, prevent
a veteran from having sexual intercourse or make it difficult to get or
maintain an erection.
Peyronie's disease is typically associated with painful erections
or intercourse or a curve in the penis that prevents sexual
intercourse. According to the NIH, and based on studies of men who
reported having symptoms of Peyronie's disease, researchers estimate
that Peyronie's disease affects more than one in 10 men. ``Penile
Curvature (Peyronie's Disease),'' National Institute of Diabetes and
Digestive and Kidney Diseases (NIDDK), NIH, https://www.niddk.nih.gov/health-information/urologic-diseases/penile-curvature-peyronies-disease
(last viewed May 15, 2020). The etiology of Peyronie's disease remains
partially understood. More recently, Peyronie's disease has been
thought to result from vascular trauma or injury to the penis that
causes scarring and deformity of the penis. Lizza et al., ``Peyronie's
Disease,'' Medscape (2018), https://emedicine.medscape.com/article/456574-overview#a7 (last visited May 15, 2020).
VA agrees with the commenters that penile trauma as a result of an
in-service injury should be recognized under DC 7522. Accordingly, VA
in this final rule is adding a note under DC 7522 to clarify how rating
personnel should evaluate disabling effects of penile trauma or
disease, to include Peyronie's disease. The note states that, for the
purpose of VA disability evaluation, a disease or traumatic injury of
the penis resulting in scarring or deformity shall be rated under DC
7522. With this clarification, VA ensures that a traumatic injury or
disease of the penis will be recognized by the VASRD. VA would review
any mental health disorders associated with erectile dysfunction or
Peyronie's disease under 38 CFR 4.125, 4.126, and 4.130. Furthermore,
DC 7522's footnote regarding consideration of special monthly
compensation for loss of use of a creative organ, where warranted, will
apply for both erectile dysfunction or Peyronie's disease.
Nevertheless, as noted in the preamble to the proposed rule, VA
provides disability compensation for conditions based on the average
impairment of earning capacity pursuant to 38 U.S.C. 1155. Erectile
dysfunction, with or without penile deformity, is not associated
directly with reductions in earning capacity, which is why VA proposed
to provide a noncompensable evaluation for erectile dysfunction under
DC 7522. Similarly, the potentially painful erections and intercourse
associated with Peyronie's disease do not, on average, impair earning
capacity at a compensable level. To the extent these conditions impact
social or psychological factors, VA has a variety of mental health and
counseling services available for service-connected veterans. But the
law specifically links disability compensation to impairment of earning
capacity. 38 U.S.C. 1155. VA thanks the commenters for their input.
IV. Comments Regarding Diagnostic Code 7542
One commenter expressed concern with VA's proposal to rate
neurogenic bladder as voiding dysfunction or urinary tract infection,
whichever is predominant. The commenter asserted that VA would fail to
adequately compensate a veteran who suffers from both effects.
Historically, 38 CFR 4.115a has recognized that ``[d]iseases of the
genitourinary system generally result in disabilities related to renal
or voiding dysfunctions, infections, or a combination of these.''
Further, Sec. 4.115a directs rating personnel to evaluate such
disabilities on the ``predominant area of dysfunction.'' VA's proposal
for DC 7542 to evaluate neurogenic bladder conditions based on voiding
dysfunction or urinary tract infection mirrors the instructions in
Sec. 4.115a, which instruct that only the predominant area of
dysfunction shall be considered when evaluating genitourinary
conditions. Moreover, Sec. 4.14 directs that the evaluation of the
same disability under various diagnoses is to be avoided. Both urinary
tract infections and voiding dysfunctions affect urinary tract
functioning, specifically, urination. Consequently, these dysfunctions
do not lend themselves to distinct and separate disability evaluations
without violating the fundamental principle relating to pyramiding as
outlined in Sec. 4.14. VA declines to make any changes based on this
comment.
V. Comments Regarding Diagnostic Code 7543
One commenter expressed concern that the noncompensable disability
rating for varicocele and hydrocele under proposed DC 7543 does not
provide proper compensation for individuals with severe cases of
varicocele or hydrocele that result in acute pain during walking or
driving. The commenter suggested a 10 percent disability rating for
such severe cases of varicocele or hydrocele. However, the evidence
indicates that varicoceles are often asymptomatic and hydroceles are
usually painless and disappear without treatment. See Junnile, J. and
Lassen, P., ``Testicular Masses,'' 57(4) Am Fam Physician 685-692
(1998), available at https://www.aafp.org/afp/1998/0215/p685.html (last
viewed May 15, 2020). While these conditions may cause a decrease in
fertility, or the existence of infertility, neither cause a reduction
in earning capacity that would warrant a compensable rating. However,
where varicocele or hydrocele causes pain that necessitates surgery, a
rating under an appropriate diagnostic code may be available for post-
surgery residuals. Also, in any instance in which a veteran has loss of
use of a creative organ due to a service-connected condition, VA
provides special monthly compensation for this functional loss. See 38
CFR 3.350(a). VA makes no changes based on these comments.
VI. Comments Beyond the Scope of This Rulemaking
One commenter stated that many combat veterans are unknowingly and
silently enduring cold injury kidney dysfunction, and VA neglected to
notify 1.7 million combat veterans of the long-term sequelae of warm
water immersion foot injuries. These aspects of the comment relate to
notice and education for veterans, not the rating criteria used in the
evaluation of service-connected genitourinary conditions. Therefore,
these issues are not within the scope of this rulemaking. VA makes no
changes based on these comments.
[[Page 54085]]
The same commenter stated that physicians at VA medical centers do
not know and have no reasonable means to ascertain information related
to the disability rating criteria associated with immersion foot
injuries and related kidney dysfunction, in order to properly treat
disabled veterans. Furthermore, the commenter discussed in detail his
medical conditions and claims' adjudication process. VA appreciates
these comments; however, the comments relate to diagnosis and treatment
of cardiovascular and renal conditions rather than disability
evaluations in the rating schedule. Therefore, these issues are not
within the scope of this rulemaking. VA makes no changes based on these
comments.
VII. Proposed Changes to Sec. 4.115
In its proposed rule, VA deemed the first three sentences of Sec.
4.115 unnecessary and proposed to remove them. However, during its
internal review and additional considerations of such removal, VA
realized that further study of this action is warranted to account for
complex relationships between cardiovascular and genitourinary
disabilities.
Currently, VA does not assign separate evaluations for heart
disease and any form of nephritis due to its close interrelationship
with cardiovascular disabilities. However, VA can separately evaluate
non-nephritis renal disease and cardiovascular disease (e.g., diabetic
nephropathy and coronary artery disease) when complications do not
overlap.
VA proposed new terminology for Sec. 4.115, but did not clearly
define renal disease and its relationship with cardiovascular
conditions. Thus, if the proposed changes were to be made effective,
they might be interpreted as precluding separate evaluations for non-
nephritis renal disease and cardiovascular disabilities. This was not
an intended consequence of this rulemaking, and would be
disadvantageous to veterans who suffer from service-connected renal and
cardiovascular conditions.
Therefore, VA withdraws its proposal to revise Sec. 4.115. VA will
review and update Sec. 4.115 during its next revision of the VA Rating
Schedule for Disabilities.
VII. Technical Correction
In the proposed rule, VA updated its general rating formula for
renal dysfunction by replacing subjective criteria with specific,
objective laboratory findings, such as the GFR and ACR. Upon further
review, VA realized that it inadvertently omitted a reference to the
period of evaluation for the GFR and ACR values. VA makes a clarifying
change in the text for the 100, 80, 60, 30, and 0 percent disability
evaluations by adding the reference ``during the past 12 months'' to
``Chronic kidney disease with GFR . . . for at least 3 consecutive
months.'' This change to the language does not result to any
substantive changes to the criteria in the general rating formula for
renal dysfunction.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Information and Regulatory Affairs has determined that
this rule is a significant regulatory action under Executive Order
12866. The Regulatory Impact Analysis associated with this rulemaking
can be found as a supporting document at www.regulations.gov.
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). The certification is based on the fact that small entities or
businesses are not affected by revisions to the VASRD. 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.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This final rule will have no such effect on
State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program numbers and
titles affected by this document are 64.009, Veterans Medical Care
Benefits; 64.104, Pension for Non-Service-Connected Disability for
Veterans; 64.109, Veterans Compensation for Service-Connected
Disability.
List of Subjects in 38 CFR Part 4
Disability benefits, Pensions, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on June 22, 2021, 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.
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 of this rule and the
proposed rule, the Department of Veterans Affairs amends 38 CFR part 4
as follows:
PART 4--SCHEDULE FOR RATING DISABILITIES
0
1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155, unless otherwise noted.
Subpart B--Disability Ratings
0
2. Amend Sec. 4.115a by revising the introductory text and the table
entries for ``Renal dysfunction'' and ``Urinary tract infection'' to
read as follows:
Sec. 4.115a Ratings of the genitourinary system--dysfunctions.
Diseases of the genitourinary system generally result in
disabilities related to renal or voiding dysfunctions, infections, or a
combination of these. The following section provides descriptions of
various levels of disability in each of these symptom
[[Page 54086]]
areas. Where diagnostic codes refer the decision maker to these
specific areas of dysfunction, only the predominant area of dysfunction
shall be considered for rating purposes. Distinct disabilities may be
evaluated separately under this section, pursuant to Sec. 4.14, if the
symptoms do not overlap. Since the areas of dysfunction described below
do not cover all symptoms resulting from genitourinary diseases,
specific diagnoses may include a description of symptoms assigned to
that diagnosis.
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
Renal dysfunction:
Chronic kidney disease with glomerular filtration 100
rate (GFR) less than 15 mL/min/1.73 m\2\ for at
least 3 consecutive months during the past 12
months; or requiring regular routine dialysis; or
eligible kidney transplant recipient...............
Chronic kidney disease with GFR from 15 to 29 mL/min/ 80
1.73 m\2\ for at least 3 consecutive months during
the past 12 months.................................
Chronic kidney disease with GFR from 30 to 44 mL/min/ 60
1.73 m\2\ for at least 3 consecutive months during
the past 12 months.................................
Chronic kidney disease with GFR from 45 to 59 mL/min/ 30
1.73 m\2\ for at least 3 consecutive months during
the past 12 months.................................
GFR from 60 to 89 mL/min/1.73 m\2\ and either
recurrent red blood cell (RBC) casts, white blood
cell (WBC) casts, or granular casts for at least 3
consecutive months during the past 12 months; or
GFR from 60 to 89 mL/min/1.73 m\2\ and structural
kidney abnormalities (cystic, obstructive, or
glomerular) for at least 3 consecutive months
during the past 12 months; or
GFR from 60 to 89 mL/min/1.73 m\2\ and albumin/ 0
creatinine ratio (ACR) >=30 mg/g for at least 3
consecutive months during the past 12 months.......
Note: GFR, estimated GFR (eGFR), and creatinine-based
approximations of GFR will be accepted for evaluation
purposes under this section when determined to be
appropriate and calculated by a medical professional.
* * * * * * *
Urinary tract infection:
Poor renal function: Rate as renal dysfunction.
Recurrent symptomatic infection requiring drainage 30
by stent or nephrostomy tube; or requiring greater
than 2 hospitalizations per year; or requiring
continuous intensive management....................
Recurrent symptomatic infection requiring 1-2 10
hospitalizations per year or suppressive drug
therapy lasting six months or longer...............
Recurrent symptomatic infection not requiring 0
hospitalization, but requiring suppressive drug
therapy for less than 6 months.....................
------------------------------------------------------------------------
0
3. Amend Sec. 4.115b by:
0
a. Revising the entry for diagnostic code 7508;
0
b. Removing the entry for diagnostic code 7510;
0
c. Revising the entries for diagnostic codes 7520, 7521, 7522, 7524,
7525, 7527, 7533, 7534, 7537, 7539, 7541, and 7542; and
0
d. Adding entries in numerical order for diagnostic codes 7543, 7544,
and 7545.
The revisions and additions read as follows:
Sec. 4.115b Ratings of the genitourinary system--diagnoses.
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
* * * * * * *
7508 Nephrolithiasis/Ureterolithiasis/Nephrocalcinosis:
Rate as hydronephrosis, except for recurrent stone 30
formation requiring invasive or non-invasive
procedures more than two times/year................
* * * * * * *
7520 Penis, removal of half or more..................... \1\ 30
7521 Penis, removal of glans............................ \1\ 20
7522 Erectile dysfunction, with or without penile \1\ 0
deformity..............................................
Note: For the purpose of VA disability evaluation, a
disease or traumatic injury of the penis resulting in
scarring or deformity shall be rated under diagnostic
code 7522.
* * * * * * *
7524 Testis, removal:
Both................................................ \1\ 30
One................................................. \1\ 0
Note: In cases of the removal of one testis as the
result of a service-incurred injury or disease, other
than an undescended or congenitally undeveloped testis,
with the absence or nonfunctioning of the other testis
unrelated to service, an evaluation of 30 percent will
be assigned for the service-connected testicular loss.
Testis, undescended, or congenitally undeveloped is not
a ratable disability.
7525 Prostatitis, urethritis, epididymitis, orchitis
(unilateral or bilateral), chronic only:
Rate as urinary tract infection.
For tubercular infections: Rate in accordance with
Sec. Sec. 4.88b or 4.89, whichever is
appropriate.
7527 Prostate gland injuries, infections, hypertrophy,
postoperative residuals, bladder outlet obstruction:
Rate as voiding dysfunction or urinary tract
infection, whichever is predominant.
[[Page 54087]]
* * * * * * *
7533 Cystic diseases of the kidneys:
Rate as renal dysfunction.
Note: Cystic diseases of the kidneys include, but are
not limited to, polycystic disease, uremic medullary
cystic disease, medullary sponge kidney, and similar
conditions such as Alport's syndrome, cystinosis,
primary oxalosis, and Fabry's disease.
7534 Atherosclerotic renal disease (renal artery
stenosis, atheroembolic renal disease, or large vessel
disease, unspecified):
Rate as renal dysfunction.
* * * * * * *
7537 Interstitial nephritis, including gouty
nephropathy, disorders of calcium metabolism:
Rate as renal dysfunction.
* * * * * * *
7539 Renal amyloid disease:
Rate as renal dysfunction.
Note: This diagnostic code pertains to renal involvement
secondary to all glomerulonephritis conditions, all
vasculitis conditions and their derivatives, and other
renal conditions caused by systemic diseases, such as
Lupus erythematosus, systemic lupus erythematosus
nephritis, Henoch-Schonlein syndrome, scleroderma,
hemolytic uremic syndrome, polyarthritis, Wegener's
granulomatosis, Goodpasture's syndrome, and sickle cell
disease.
* * * * * * *
7541 Renal involvement in diabetes mellitus type I or
II:
Rate as renal dysfunction.
7542 Neurogenic bladder:
Rate as voiding dysfunction or urinary tract
infection, whichever is predominant.
7543 Varicocele/Hydrocele............................... \1\ 0
7544 Renal disease caused by viral infection such as
human immunodeficiency virus (HIV), Hepatitis B, and
Hepatitis C:
Rate as renal dysfunction.
7545 Bladder, diverticulum of:
Rate as voiding dysfunction or urinary tract
infection, whichever is predominant.
------------------------------------------------------------------------
\1\ Review for entitlement to special monthly compensation under Sec.
3.350 of this chapter.
0
4. Amend appendix A to part 4 by:
0
a. Revising the entry for Sec. 4.115a;
0
b. Under the entry for Sec. 4.115b, revising the entries for
diagnostic codes 7500, 7501, 7502, 7504, 7507, 7508, 7509, 7510, 7511,
7516, 7520, 7521, 7522, 7524, 7525, 7527, 7528, 7529, 7530, 7531, 7532,
7533, 7534, 7535, 7536, 7537, 7538, 7539, 7540, 7541, and 7542; and
0
c. Under the entry for Sec. 4.115b, adding in numerical order entries
for diagnostic codes 7543 through 7545.
The revisions and additions read as follows:
Appendix A to Part 4--Table of Amendments and Effective Dates Since
1946
------------------------------------------------------------------------
Diagnostic
Sec. code No.
------------------------------------------------------------------------
* * * * * * *
4.115a............... .............. Re-designated and revised as Sec.
4.115b; new Sec. 4.115a
``Ratings of the genitourinary
system-dysfunctions'' added
February 17, 1994; revised
November 14, 2021.
4.115b............... 7500 Note July 6, 1950; evaluation
February 17, 1994, criterion
September 8, 1994; criterion
November 14, 2021.
7501 Evaluation February 17, 1994;
criterion November 14, 2021.
7502 Evaluation February 17, 1994;
criterion November 14, 2021.
* * * * * * *
7504 Evaluation February 17, 1994;
criterion November 14, 2021.
* * * * * * *
7507 Evaluation February 17, 1994;
criterion November 14, 2021.
7508 Evaluation February 17, 1994;
title, criterion November 14,
2021.
7509 Evaluation February 17, 1994;
criterion November 14, 2021.
7510 Evaluation February 17, 1994;
removed November 14, 2021.
7511 Evaluation February 17, 1994;
criterion November 14, 2021.
* * * * * * *
7516 Evaluation February 17, 1994;
criterion November 14, 2021.
* * * * * * *
7520 Criterion February 17, 1994;
criterion, footnote November 14,
2021.
7521 Criterion February 17, 1994;
criterion, footnote November 14,
2021.
7522 Criterion September 8, 1994;
title, criterion, note November
14, 2021.
* * * * * * *
7524 Note July 6, 1950; evaluation
February 17, 1994; evaluation
September 8, 1994; note November
14, 2021.
7525 Criterion March 11, 1969;
evaluation February 17, 1994;
title and criterion November 14,
2021.
[[Page 54088]]
* * * * * * *
7527 Criterion February 17, 1994;
title and criterion November 14,
2021.
7528 Criterion March 10, 1976;
criterion February 17, 1994;
criterion November 14, 2021.
7529 Evaluation February 17, 1994;
criterion November 14, 2021.
7530 Added September 9, 1975;
evaluation February 17, 1994;
criterion November 14, 2021.
7531 Added September 9, 1975;
criterion February 17, 1994;
criterion November 14, 2021.
7532 Evaluation February 17, 1994;
criterion November 14, 2021.
7533 Added February 17, 1994; title,
criterion, and note November 14,
2021.
7534 Added February 17, 1994; title
and criterion November 14, 2021.
7535 Evaluation February 17, 1994;
criterion November 14, 2021.
7536 Evaluation February 17, 1994;
criterion November 14, 2021.
7537 Added February 17, 1994; title
and criterion November 14, 2021.
7538 Evaluation February 17, 1994;
criterion November 14, 2021.
7539 Added February 17, 1994; note and
criterion November 14, 2021.
7540 Evaluation February 17, 1994;
criterion November 14, 2021.
7541 Added February 17, 1994; title
and criterion November 14, 2021.
7542 Added February 17, 1994;
criterion November 14, 2021.
7543 Added November 14, 2021.
7544 Added November 14, 2021.
7545 Added November 14, 2021.
* * * * * * *
------------------------------------------------------------------------
0
5. Amend appendix B to part 4 by:
0
a. Revising the entries for diagnostic codes 7508, 7522, 7525, 7527,
7533, 7534, 7537, and 7541;
0
b. Removing the entry for diagnostic code 7510; and
0
c. Adding in numerical order entries for diagnostic codes 7543 through
7545.
The revisions and additions read as follows:
Appendix B to Part 4--Numerical Index of Disabilities
------------------------------------------------------------------------
Diagnostic code No.
------------------------------------------------------------------------
The Genitourinary System
------------------------------------------------------------------------
* * * * * * *
7508......................... Nephrolithiasis/Ureterolithiasis/
Nephrocalcinosis.
* * * * * * *
7522......................... Erectile dysfunction, with or without
penile deformity.
* * * * * * *
7525......................... Prostatitis, urethritis, epididymitis,
orchitis (unilateral or bilateral),
chronic only.
7527......................... Prostate gland injuries, infections,
hypertrophy, postoperative residuals,
bladder outlet obstruction.
* * * * * * *
7533......................... Cystic diseases of the kidneys.
7534......................... Atherosclerotic renal disease (renal
artery stenosis, atheroembolic renal
disease, or large vessel disease,
unspecified).
* * * * * * *
7537......................... Interstitial nephritis, including gouty
nephropathy, disorders of calcium
metabolism.
* * * * * * *
7541......................... Renal involvement in diabetes mellitus
type I or II.
* * * * * * *
7543......................... Varicocele/Hydrocele.
7544......................... Renal disease caused by viral infection
such as HIV, Hepatitis B, and Hepatitis
C.
7545......................... Bladder, diverticulum of.
* * * * * * *
------------------------------------------------------------------------
0
6. Amend appendix C to part 4 by:
0
a. Under the heading ``Bladder,'' adding in alphabetical order an entry
for ``Diverticulum of'' (diagnostic code 7545);
0
b. Revising the entry for ``Interstitial nephritis'' (diagnostic code
7537);
0
c. Revising the entry for ``Nephrolithiasis'' (diagnostic code 7508);
0
d. Under the heading ``Penis,'' removing the entry for ``Deformity,
with loss of erectile power'' (diagnostic code 7522), and adding an
entry for ``Erectile dysfunction'' in its place;
[[Page 54089]]
0
e. Revising the entry for ``Prostate gland'' (diagnostic code 7527);
0
f. Under the heading ``Renal,'' adding in alphabetical order an entry
for ``Disease caused by viral infection such as HIV, Hepatitis B, and
Hepatitis C'' (diagnostic code 7544);
0
g. Under the heading ``Renal,'' removing the entry for ``Involvement in
systemic diseases'' (diagnostic code 7541), and adding an entry for
``Involvement in diabetes mellitus type I or II'' in its place;
0
h. Removing the entry for ``Ureterolithiasis'' (diagnostic code 7510);
0
i. Removing the entry for ``Epididymo-orchitis'' (diagnostic code
7525);
0
j. Adding in alphabetical order an entry for ``Prostatitis, urethritis,
epididymitis, orchitis (unilateral or bilateral), chronic only''
(diagnostic code 7525); and
0
k. Adding in alphabetical order an entry for ``Varicocele/Hydrocele''
(diagnostic code 7543).
The additions and revisions read as follows:
Appendix C to Part 4--Alphabetical Index of Disabilities
------------------------------------------------------------------------
Diagnostic
code No.
------------------------------------------------------------------------
* * * * * * *
Bladder:
Calculus in......................................... 7515
Diverticulum of..................................... 7545
Fistula in.......................................... 7516
Injury of........................................... 7517
Neurogenic.......................................... 7542
* * * * * * *
Interstitial nephritis, including gouty nephropathy, 7537
disorders of calcium metabolism........................
* * * * * * *
Nephrolithiasis/Ureterolithiasis/Nephrocalcinosis....... 7508
* * * * * * *
Penis:
Erectile dysfunction................................ 7522
Removal of glans.................................... 7521
Removal of half or more............................. 7520
* * * * * * *
Prostate gland injuries, infections, hypertrophy, 7527
postoperative residuals, bladder outlet obstruction....
Prostatitis, urethritis, epididymitis, orchitis 7525
(unilateral or bilateral), chronic only................
* * * * * * *
Renal:
Amyloid disease..................................... 7539
Disease, chronic.................................... 7530
Disease caused by viral infection such as HIV, 7544
Hepatitis B, and Hepatitis C.......................
Involvement in diabetes mellitus type I or II....... 7541
Tubular disorders................................... 7532
* * * * * * *
Varicocele/Hydrocele.................................... 7543
* * * * * * *
------------------------------------------------------------------------
[FR Doc. 2021-19997 Filed 9-29-21; 8:45 am]
BILLING CODE 8320-01-P