[Federal Register Volume 87, Number 31 (Tuesday, February 15, 2022)]
[Proposed Rules]
[Pages 8474-8498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02049]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3 and 4
RIN 2900-AQ72
Schedule for Rating Disabilities--Ear, Nose, Throat, and
Audiology Disabilities; Special Provisions Regarding Evaluation of
Respiratory Conditions; Schedule for Rating Disabilities--Respiratory
System
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to revise
sections that address the ear, nose, throat, audiology, and respiratory
systems. The purpose of these changes is to update medical terminology,
incorporate medical advances that have occurred since the last review,
and provide well-defined criteria in accordance with actual clinical
practice. VA will also rename the body system currently designated for
conditions related to hearing and the ear, to include the nose and
throat. VA will also consolidate within the scope of otolaryngology
several diagnostic codes (DCs) currently listed within the respiratory
system.
DATES: VA must receive comments on or before April 18, 2022.
ADDRESSES: Comments may be submitted through
[[Page 8475]]
www.Regulations.gov. Comments received will be available at
www.Regulations.gov for public viewing, inspection or copies.
FOR FURTHER INFORMATION CONTACT: Gary Reynolds, M.D., Medical Officer,
Regulations Staff (210), Compensation Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (202) 461-9700. (This is not a toll-free
telephone number.)
SUPPLEMENTARY INFORMATION: As part of its ongoing revision of the
Schedule for Rating Disabilities (VASRD, or the Rating Schedule), VA is
proposing changes to the portions of the VASRD that address the
audiology system, which VA last addressed in 1999 (see 64 FR 25202), as
well as the respiratory system, which VA last addressed in 2006 (see 71
FR 52457). The proposed rule reflects advances in medical knowledge,
recommendations from VA experts in audiology and respiratory
conditions, and comments from experts and the public gathered during an
October 2011 forum in New York City.
VA proposes to incorporate more current respiratory and auditory
terminology and apply current standards of assessing and evaluating
impairment. Where changes to the scientific and/or medical nature of a
given condition have been proposed, VA has cited the published,
publicly-available sources for these changes. The proposed changes are
not a reflection of any particular expert's comments or recommendations
but were based on published, peer-reviewed materials. Materials from
the public forum are available for public inspection at the Office of
Regulation Policy and Management (see the ADDRESSES section of this
rulemaking), and other deliberative materials are cited herein.
VA also intends to reorganize the Rating Schedule so its
classifications of injuries and diseases more closely resemble those
used in health care. This reorganization involves moving several
diagnostic codes (DCs) from ``The Respiratory System'' to a new body
system designated as ``Ear, Nose, Throat, and Auditory Disabilities.''
I. The Respiratory System
A. Proposed Changes to 38 CFR 4.96
VA proposes to revise Sec. 4.96 to clarify, simplify, and
eliminate redundancies in the special provisions regarding respiratory
conditions. Paragraph (a) currently precludes simultaneous ratings for
specific coexisting respiratory conditions. VA proposes to amend
paragraph (a) by simply stating that VA may not combine, under 38 CFR
4.25, Combined Ratings Table, coexisting respiratory conditions unless
otherwise directed. Under this proposed rule, the only respiratory
disability that VA may combine with other respiratory disabilities is
DC 6847, sleep apnea. The proposed rule notes which DCs may be combined
with DC 6847.
VA does not propose any change to current paragraph (b), which
discusses veterans who received, or were entitled to receive,
compensation for tuberculosis as of August 19, 1968.
VA proposes to remove paragraph (c), which deals with special
monthly compensation (SMC) for complete organic aphonia. Complete
organic aphonia, currently evaluated under DC 6519, is among those
disabilities that VA is proposing to move to the new body system,
``Ear, Nose, Throat, and Auditory Disabilities,'' as DC 6230, with a
footnote discussing SMC. Therefore, the respiratory system no longer
requires this paragraph.
As a result of this deletion, VA intends to redesignate current
paragraph (d) as paragraph (c). The current paragraph (d) provides
information on the use of pulmonary function tests (PFTs) to evaluate
the severity of certain respiratory conditions. As discussed in detail
below, VA proposes to evaluate a number of respiratory conditions using
a General Rating Formula for Respiratory Conditions (General Rating
Formula), which reference various PFTs. As such, VA proposes to amend
the subheading for revised Sec. 4.96(c) to expand the list of all DCs
that VA will rate using the General Rating Formula.
Within revised paragraph (c), VA proposes to amend subparagraph
(1). Currently, Sec. 4.96(d)(1)(ii) states that PFTs are not necessary
when an individual is diagnosed with pulmonary hypertension, cor
pulmonale, or right ventricular hypertrophy. A new DC addressing the
requirements for ``pulmonary hypertension'' (discussed below) is being
proposed herein. Furthermore, the proposed General Rating Formula for
Respiratory Conditions includes METS as an evaluation criteria, which
are the same evaluation criteria used in the General Rating Formula for
Diseases of the Heart. This means cor pulmonale and right ventricular
hypertrophy can both be evaluated within the respiratory system under
its General Rating Formula. Therefore, the current subparagraph
(d)(1)(ii) will no longer be necessary. With the absence of that
subparagraph, VA proposes to redesignate current subparagraphs
(d)(1)(iii) and (d)(1)(iv) as subparagraphs (c)(1)(ii) and (c)(1)(iii),
respectively.
Current subparagraph (d)(2) discusses the use of diffusion capacity
of the lung for carbon monoxide by the single breath method (DLCO
(SB)). The new General Rating Formula and proposed pulmonary
hypertension code have sufficient alternative criteria to evaluate
respiratory disabilities when the DLCO (SB) is not available. VA may
still consider using DLCO (SB) to evaluate respiratory disabilities,
but VA will not require it and the examiner need not state why the test
would not be useful or valid in a particular case. Accordingly, VA
proposes to delete current subparagraph (d)(2).
VA proposes to remove current subparagraphs (d)(4) and (d)(5).
These paragraphs discuss the need for post-bronchodilator studies
during examinations, except in certain circumstances, and the need to
utilize post-bronchodilator results as a more accurate value in
evaluating respiratory disabilities. VA proposes to remove these
subparagraphs because whether pre- or post-bronchodilator studies
accurately reflect an individual's medical condition is a medical
determination and therefore is more appropriately decided by a medical
practitioner and/or examiner; this information should be considered as
part of the medical record, to include treatment notes and/or
examination. Therefore, there is no need to instruct rating personnel
on the use of post-bronchodilator studies.
VA also proposes to remove current subparagraph (d)(7) because it
is inaccurate. Obstructive respiratory disease may be present, ratable,
and compensable even though both Forced Expiratory Volume in one second
(FEV-1) and Forced Vital Capacity (FVC) are greater than 100 percent.
See Matthew J. Hegewald and Robert O. Crapo, ``Pulmonary Function
Testing,'' Murray and Nadel's Textbook of Respiratory Medicine 527-28
(5th ed. 2010).
As a result of the above deletions, VA intends to redesignate
current subparagraph (d)(3) as (c)(2), and redesignate current
subparagraph (d)(6) as (c)(3), with no substantive changes.
Finally, VA proposes to add a new paragraph (d), Respiratory
conditions and comorbid cardiovascular conditions. A MET is defined as
the amount of oxygen consumed by a person at rest. This measurement is
used to calculate the energy cost of a specific activity in multiples
of the amount of oxygen consumed by a person at rest. Oxygen
consumption is possible through the integrated operation of two
distinct body systems, the cardiovascular and respiratory systems. The
respiratory system
[[Page 8476]]
captures and collects oxygen, while the cardiovascular system delivers
the oxygen to muscles (including the heart itself) performing the work
associated with a specific activity. See M. Jette. ``Metabolic
Equivalents (METS) in Exercise Testing, Exercise Prescription, and
Evaluation of Functional Capacity,'' 13(8) Clin. Cardiol. 555-65
(1990).
Typically, when disability affects either the cardiovascular or
respiratory systems, it is easy to apportion disability using METs to
the affected system. However, when both the cardiovascular and
respiratory systems are involved, it is difficult to apportion the
contribution to the observed disability by each system. To avoid the
potential rating complications posed by situations where coexistent
cardiovascular and respiratory disabilities can be evaluated using
METs, VA will instruct raters to evaluate only one body system using
METs and evaluate the other body system using criteria other than METs,
absent instructions otherwise in individual DCs. (The evaluation levels
for METs will be the same in both cardiovascular and respiratory
systems--that is, the METs yielding a 60 percent evaluation level in
the cardiovascular system will yield the same evaluation in the
respiratory system.) The General Rating Formula for Respiratory
Conditions in Sec. 4.97 lists several types of test results that can
be used to evaluate a respiratory condition. When METs are used to
evaluate a respiratory disability under Sec. 4.97, they will not be
used to evaluate a comorbid cardiovascular disability under Sec.
4.104, and vice versa. Raters will use METs in the evaluation of the
disability that would provide the veteran with the most advantageous
combined rating.
B. Proposed Changes to 38 CFR 4.97
This proposed rule addresses VA's outdated organization of the DCs
within the current respiratory schedule. This rule also updates
diagnostic naming conventions and evaluation criteria according to
modern medical practice.
1. Removal of ``Diseases of the Nose and Throat''
VA proposes to remove the heading ``Diseases of the Nose and
Throat.'' As discussed in more detail below, VA is relocating DCs 6502
through 6524, currently located under this heading, to 38 CFR 4.87, as
they share similarities in features, impairment assessment, and
severity levels. Such similarities are more closely related to the
disability criteria that VA will propose for the ear, nose, and throat
schedule.
2. General Rating Formula for Respiratory Conditions
VA also proposes adding the General Rating Formula to the beginning
of the respiratory system. The proposed formula incorporates much of
the criteria currently used by several DCs for respiratory conditions,
notably DCs 6600, 6603, 6604, 6825 through 6833, and 6840 through 6845.
VA designed the proposed General Rating Formula to more succinctly
organize the Rating Schedule by referring applicable DCs to a single
formula, rather than repeating the same formula after each DC to which
it applies. The introduction of the General Rating Formula for
Respiratory Conditions revises the criteria for multiple DCs.
VA derived the model for the General Rating Formula from the table
entitled ``Pulmonary Dysfunction'' in Guides to the Evaluation of
Permanent Impairment 88 (Robert D. Rondinelli et al. eds., 6th ed.
2008). The table defines four different levels of impairment severity
based on FVC, FEV-1, DLCO (SB), Maximum Oxygen Consumption (VO2 Max),
and METs. VA proposes to modify these levels to rate respiratory
conditions. The General Rating Formula VA proposes will utilize common
PFT findings, such as FEV-1, FVC, the ratio of FEV-1 to FVC (FEV-1/
FVC), and DLCO (SB), and continue to utilize most of the levels found
throughout current Sec. 4.97, as they differ only slightly from the
levels found in the ``Pulmonary Dysfunction'' table and are generally
more advantageous to veterans.
One change from current Sec. 4.97, however, is to require less of
a reduction in FEV-1 to qualify for 100 percent disability rating (an
FEV-1 of less than 45 percent of predicted value, rather than the
current 40 percent), which is advantageous to veterans. Another is to
no longer provide a 100 percent rating for outpatient oxygen therapy:
The need for oxygen is not a sufficiently accurate measure of the
severity of a disability to allow for a consistent evaluation without
regard to other more objective measures.
VA also proposes to adjust the values for maximum oxygen
consumption, which has a fixed relationship to METs (every 3.5 ml of
oxygen consumed is equal to 1 MET). This modification will ensure
equity with values already used in other body systems using METs to
evaluate disability (in particular, the cardiovascular system).
Finally, VA proposes to continue utilizing FEV-1/FVC as a PFT that can
be used for rating purposes despite its absence from the ``Pulmonary
Dysfunction'' table.
Note (1) to the proposed General Rating Formula will instruct
rating personnel to base the impairment assessment on the criteria that
reflects the greatest impairment and, therefore, the greatest
evaluation. Note (2) will address combined ratings, consistent with
proposed Sec. 4.96(a).
Finally, VA will add Note (3) to the proposed General Rating
Formula, which will address comorbid respiratory and cardiovascular
disabilities in accord with proposed Sec. 4.96(d). As noted above,
raters may use METs to evaluate the respiratory disability under Sec.
4.97 or the cardiovascular disability under Sec. 4.104, but not both.
It should be noted that the General Rating Formula does not
reference cor pulmonale and right ventricular hypertrophy. Under
current Sec. 4.97, some evaluation criteria reference cor pulmonale
and right ventricular hypertrophy without an associated respiratory
system disability. One of VA's goals with this revision is to ensure
that all evaluation criteria within Sec. 4.97 contain at least one
element of respiratory disability. Thus, under the proposed rule, any
cardiovascular disabilities incorporated within Sec. 4.97 will be
associated with at least one respiratory disability as part of any and
all evaluation criteria.
3. Other Changes to Sec. 4.97
In addition to incorporating the General Rating Formula, VA
proposes a number of organizational changes to the respiratory system.
Specifically, VA proposes removing the current headings and subheadings
and reorganizing the VASRD Respiratory System under two broad headings.
The first heading will be ``Intrinsic Lung Diseases.'' VA proposes to
add seven subheadings under Intrinsic Lung Diseases: ``Airway Disorders
(Trachea, Bronchi),'' ``Tuberculous Lung Diseases,'' ``Vascular Lung
Diseases,'' ``Lung Neoplasms,'' ``Bacterial Lung Diseases,''
``Parenchymal Lung Disease (Including Interstitium and Alveolar
Spaces),'' and ``Mycotic Lung Diseases.'' The second heading that VA
proposes is ``Other Respiratory Conditions.'' VA will include these
remaining respiratory diagnoses in accordance with modern medical
practice. See Peter D. Wagner et al., ``Ventilation, Blood Flow and Gas
Exchange,'' Murray and Nadel's Textbook of Respiratory Medicine 53-88
(5th ed. 2010).
To help the reader understand VA's proposed changes to the
individual DCs within the Respiratory System, VA has organized the
following discussion by the seven subheadings under Intrinsic
[[Page 8477]]
Lung Diseases in the order of their appearance. VA will then discuss
changes within the proposed Other Respiratory Conditions.
i. Airway Disorders (Trachea, Bronchi)
Current DCs 6600 through 6604 shall appear in their current order
under this proposed rule after the subheading Airway Disorders
(Trachea, Bronchi). VA proposes to modify the rating criteria for DCs
6600, 6601, 6603, and 6604 to refer to the General Rating Formula,
which assesses severity using current medical understanding. As
discussed above, VA is proposing a General Rating Formula to simplify
evaluations and expand the criteria upon which to evaluate respiratory
conditions, to include FEV-1 and METs. Regarding DC 6602, bronchial
asthma, VA proposes to maintain most of the current evaluation criteria
but reorganize how the VASRD presents the various criteria for improved
usefulness. This reorganization is similar to the proposed General
Rating Formula: Each evaluation requires meeting at least one of its
criteria.
ii. Tuberculous Lung Diseases
VA proposes removing the heading ``Diseases of the Lung and Pleura-
Tuberculosis'' and replacing it with ``Tuberculous Lung Diseases.'' VA
proposes to retain the current subheadings, ``Ratings for Pulmonary
Tuberculosis Entitled on August 19, 1968,'' ``Ratings for Pulmonary
Tuberculosis Initially Evaluated After August 19, 1968,'' and their
corresponding DCs. These changes organize the DCs along current medical
practice.
VA will not substantively alter the criteria for evaluating
tuberculosis for individuals entitled on August 19, 1968, though it
will delete a statutory reference that no longer exists. It also will
not substantively change the current rating instructions for chronic,
active pulmonary tuberculosis (DC 6730). However, VA proposes to amend
the evaluation criteria for DC 6731, Chronic, inactive primary
pulmonary tuberculosis. The current criteria evaluate residuals ``as
interstitial lung disease, restrictive lung disease, or, when
obstructive lung disease is the major residual, as chronic bronchitis
(DC 6600).'' The amended rule would refer specifically to the General
Rating Formula and provide notes consistent with the language of
current DC 6731. VA proposes this change because the General Rating
Formula provides sufficient rating criteria for assessing residual lung
function of this disorder. VA proposes no substantive change to DC
6732.
iii. Vascular Lung Diseases
VA proposes to replace the current heading, ``Nontuberculous
diseases,'' with the subheading ``Vascular Lung Diseases.'' This
arrangement will form the third subheading under ``Intrinsic Lung
Diseases.'' VA also proposes that DC 6817, presently ``Pulmonary
vascular disease,'' be renamed as ``Pulmonary thromboembolic disease.''
The new name reflects current medical terminology for the same
condition. See Timothy A. Morris and Peter F. Fedullo, ``Pulmonary
Thromboembolism,'' Murray and Nadel's Textbook of Respiratory Medicine
1186 (5th ed. 2010).
VA proposes the following changes to the criteria of DC 6817: (1)
Removing ``primary pulmonary hypertension'' from the 100 percent
evaluation criteria, because it will be rated under new DC 6849, (2)
removing references to cor pulmonale, which can be adequately evaluated
under the proposed General Rating Formula, (3) recharacterizing the
current note as Note (1), (4) adding a note (Note (2)) prohibiting
separate evaluations for pulmonary thromboembolic disease with right
ventricular hypertrophy and selected comorbid cardiovascular conditions
in order to avoid pyramiding, and (5) adding a note (Note (3))
outlining when a rating under DC 6817 can be combined with other
ratings under Sec. 4.97.
Additionally, VA proposes adding a new DC 6849 for ``Pulmonary
hypertension.'' Currently, VA rates pulmonary hypertension analogously
to other respiratory conditions. However, this common condition has its
own features and treatments, so evaluations analogous to other
respiratory DCs may be inadequate or inappropriate. As indicated
previously, medicine assesses impairment by changes in right
ventricular diameter, B-natriuretic levels, and mean pulmonary artery
pressure. The rating criterion VA proposes for DC 6849 applies such
measurements to this unique respiratory condition. VA proposes four
levels of disability, similar to the levels of the proposed General
Rating Formula. Where rating criteria METs levels conflict with other
METs levels found within the cardiovascular system, the conflicting
METs levels will conform to those found within the cardiovascular
system. See Rondinelli, supra at 71-73.
Three notes would accompany DC 6849. The first would state that
acute pulmonary hypertension is not a disability for ratings purposes.
VA compensates disabilities that impair earning capacity, not temporary
conditions that generally do not impact earning capacity. See 38 U.S.C.
1155; Davis v. Principi, 276 F.3d 1341, 1345-47 (Fed. Cir. 2002); see
also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). The
second note would prohibit separate evaluations for pulmonary
hypertension and selected coexisting cardiovascular conditions;
instead, one rating would be assigned either under DC 6849 or under the
appropriate cardiovascular DC (38 CFR 4.104), whichever represents the
predominant disability. Compensating the same disability under two
different body systems would represent pyramiding, which is
impermissible under 38 CFR 4.14. The third note would outline when a
rating under DC 6849 can be combined with other ratings under Sec.
4.97.
iv. Lung Neoplasms
VA next proposes to reorganize DCs 6819, ``Neoplasms, malignant,
any specified part of respiratory system exclusive of skin growths,''
and 6820, ``Neoplasms, benign, any specified part of respiratory
system,'' under the proposed subheading ``Lung Neoplasms.'' DCs 6819
and 6820 are currently listed under ``Nontuberculous Diseases.''
VA also proposes to modify the note for DC 6819, which currently
instructs rating personnel to evaluate residuals six months after the
cessation of all forms of active treatment. VA intends to refer rating
personnel to the General Rating Formula because this evaluation tool
provides the most appropriate criteria for assessing residual
impairment from a malignant lung neoplasm. Potential residuals include,
but are not limited to, removal (resection) of a lung (in part or in
whole) or persistent pleural effusions.
Similarly, VA proposes that DC 6820, benign neoplasms of the
respiratory system, be rated under the General Rating Formula.
Currently, DC 6820 directs rating personnel to ``Evaluate using an
appropriate respiratory analogy.'' The General Rating Formula provides
a broad range of alternative criteria with which to assess most
respiratory conditions.
v. Bacterial Lung Diseases
VA proposes renaming the heading ``Bacterial Infections of the
Lung'' to the subheading ``Bacterial Lung Diseases.'' DCs 6822 through
6824 will continue to appear under Bacterial Lung Diseases. VA does not
propose any substantive criteria changes for the rating formula for
these DCs.
[[Page 8478]]
vi. Parenchymal Lung Disease (Including Interstitium and Alveolar
Spaces)
VA proposes to remove the current subheading, ``Interstitial Lung
Disease,'' to add instead, ``Parenchymal Lung Disease (Including
Interstitium and Alveolar Spaces).'' VA also proposes to relocate DC
6846 (Sarcoidosis) from the current ``Restrictive Lung Disease''
subheading to the newly proposed ``Parenchymal Lung Disease (Including
Interstitium and Alveolar Spaces)'' subheading, as sarcoidosis is
medically-categorized as a parenchymal lung disease. This new
subheading reflects modern medical terminology for the associated DCs.
In addition, VA proposes to rate these conditions under the General
Rating Formula. This change will incorporate current medical standards
for assessing impairment. By applying the General Rating Formula, VA
proposes to expand the types of PFT results, to include FEV-1/FVC, and
METs, to evaluate these conditions.
In addition, VA proposes to include a note for DCs 6825 through
6833 and DC 6846. This note instructs rating personnel to add an
additional 10 percent to any rating during certain kinds of treatment,
specifically, oral prednisone greater than 20 milligrams (mg) daily, or
daily second-line immunosuppressive medication (e.g., non-steroidal
agents; such immunomodulatory drugs as azathioprine or
cyclophosphamide; anti-fibrotic agents such as colchicine;
penicillamine; or biologic agents such as etanercept). VA proposes to
add this additional 10 percent rating because the treatments themselves
may result in adverse effects involving the blood-forming organs or the
gastrointestinal system. See M. Selman et al., ``Idiopathic
Interstitial Pneumonias,'' Murray and Nadel's Textbook of Respiratory
Medicine 1380-81 (5th ed. 2010).
VA also proposes to rename DC 6825, ``Diffuse interstitial fibrosis
(interstitial pneumonitis, fibrosing alveolitis), to ''Diffuse
interstitial fibrosis (interstitial pneumonitis, fibrosing alveolitis,
idiopathic fibrosis).'' The proposed name reflects current medical
terminology. See id. at 1370.
vii. Mycotic Lung Diseases
VA also proposes to rename ``Mycotic Lung Disease'' to ``Mycotic
Lung Diseases'' and organize DCs 6834 through 6839 under this
subheading. No substantive criteria changes are proposed for these
diseases.
viii. Other Respiratory Conditions
The final organizational change VA proposes for the respiratory
system is assembling all remaining respiratory disabilities under the
heading ``Other Respiratory Conditions.'' VA will arrange DCs 6840
through 6847 under this heading.
In addition to moving these DCs under the new heading, VA proposes
to rename DCs 6841 and 6842. Specifically, VA intends to rename DC
6841, currently ``Spinal cord injury with respiratory insufficiency,''
as ``Respiratory insufficiency due to spinal cord injury.'' As for DC
6842, ``Kyphoscoliosis, pectus excavatum, pectus carinatum,'' VA
proposes to rename it as ``Pulmonary disease secondary to
kyphoscoliosis, pectus excavatum, or pectus carinatum.'' Renaming these
DCs clarifies that the primary disability is related to the respiratory
system.
VA proposes that DCs 6840 through 6846 be rated under the General
Rating Formula. This proposed change modifies the current criteria by,
most notably, adding FVC and METs as additional measures. This proposed
change favors veterans because it allows additional, alternative
criteria to assess disability that do not currently exist in these DCs.
As previously discussed, VA proposes to change these criteria to
reflect current medical standards for assessing the severity of
impairment.
VA also proposes to modernize the rating criteria for DC 6847,
``Sleep Apnea Syndromes (Obstructive, Central, Mixed)'' and retitle
that DC as ``Sleep Apnea Syndromes (Obstructive, Central, or Mixed)''.
The discipline of sleep medicine has greatly evolved since VA published
the existing criteria. The American Academy of Sleep Medicine (AASM),
founded since then, conducted in-depth, peer-reviewed research in
conjunction with its partners to develop scientifically-refined
criteria regarding the definition, measurement, and treatment of sleep
apnea. Sleep apnea may be defined as complaints of unintentional sleep
episodes and/or awakenings and/or snoring associated with an apnea-
hypopnea index (AHI) equal to or greater than 5 per hour or,
alternatively, an asymptomatic patient with an AHI greater than 15 per
hour. See Richard B. Berry, Fundamentals of Sleep Medicine 238 (2012).
Additional findings supporting a diagnosis of sleep apnea include
oxygen desaturation greater than 4 percent and/or a reduction in
airflow below 70 percent. Such measurements can evaluate the
effectiveness of treatment intervention or lifestyle modifications such
as weight loss.
VA proposes to extensively revise the rating criteria for sleep
apnea to primarily provide compensation that is more compatible with
earning impairment than the current criteria. The current criteria
evaluate based upon treatment rather than actual impairment. VA
currently assigns higher ratings to individuals when their physicians
prescribe more intensive therapies, such as continuous airway pressure
(CPAP) machines, without regard to whether individuals first tried more
conservative therapies, such as weight loss or oral appliances, or what
actual impairment continues following use of CPAP machines. As
discussed below, VA's proposed criteria will focus on the result rather
than the type of treatment. Hence, individuals whose treatments are
equally effective will receive equal disability ratings, regardless of
the treatments. Individuals for whom treatment similarly fails (or is
only partially effective) will also receive similar ratings. These
proposed changes for sleep apnea comply with 38 U.S.C. 1155 that the
VASRD ratings reflect average losses in earning capacity.
Specifically, VA proposes to assign a 0 percent evaluation when
sleep apnea syndrome is asymptomatic, with or without treatment. VA
would assign a 10 percent evaluation when treatment yields ``incomplete
relief.'' VA would assign ratings above 10 percent (e.g., 50 and 100
percent) only when treatment is either ineffective or the veteran is
unable to use the prescribed treatment due to comorbid conditions. VA
would assign a 100 percent evaluation only if there is also end-organ
damage. VA proposes to include an informational note that defines and
gives examples of qualifying comorbid conditions, i.e., conditions
that, in the opinion of a qualified medical provider, directly impede
or prevent the use of, or implementation of, a recognized form of
treatment intervention normally shown to be effective.
VA proposes to add a new DC 6848 for ``Lung transplantation.'' Lung
transplantation involves a unique treatment that is not addressed in
the current Rating Schedule. This procedure for a service connected
pulmonary condition results in significant disability that is not
adequately captured by the current rating schedule. For one, recovery
with pulmonary function testing performance usually takes about 12
months. Yet outcome studies reveal significant variation in return to
work time. This can be explained when you look at the two main
populations receiving lung
[[Page 8479]]
transplants. There is a population who receive the lung transplant due
to hereditary/genetic conditions that would preclude military service
all together (such as cystic fibrosis), and another population who
receive a lung transplant due to acquired conditions (such as chronic
obstructive pulmonary disease). VA believes the population with lung
transplantation due to acquired conditions is a better characterization
of the population of veterans who might receive this procedure and thus
would be eligible for compensation. On this basis, VA intends to assign
a 100 percent evaluation for lung transplantation surgery, and for one
year following discharge from the hospital for such surgery.
Thereafter, consistent with other respiratory conditions, VA will base
the evaluation on residuals according to the proposed General Rating
Formula, but with a minimum evaluation of 30 percent. See Lisa Cicutto
et al., ``Factors Affecting Attainment of Paid Employment After Lung
Transplantation,'' 23 J. Heart Lung Transplant 481-86 (2004); see also
Dmitry Tumin et al., ``Attained Functional Status Moderates Functional
Outcomes of Return to Work After Lung Transplantation,'' 194 Lung 437-
45 (2016).
II. Ear, Nose, Throat, and Audiology Disabilities
Otolaryngology is the field of medicine concerned with diseases of,
and injury to, the ears, nose, and throat. Currently, the VASRD spreads
these diseases and conditions among several systems. This disbursement
of diseases and conditions amongst several body systems does not
represent the current scientific and medical understanding of the
specific anatomy, etiology, and disabling effect of diseases and
conditions of the ears, nose, and throat. Reorganization of these
diseases and conditions to reflect current medical and scientific
practice improves rating efficiency and effectiveness by allowing for
easy identification of the medical source for each rating and reducing
the need to rely on analogous codes when evaluating certain
disabilities.
The system titled ``Impairment of Auditory Acuity,'' found at 38
CFR 4.85-4.87, already includes conditions of hearing and the ear,
including the symptom of tinnitus (ringing in the ear), hearing loss,
vestibular disorders (dizziness), neoplasms (tumors), and infections.
For the reasons discussed above, VA proposes to rename the body system
``Ear, Nose, Throat, and Auditory Disabilities'' and relocate 16 DCs
from Sec. 4.97, the Respiratory System, to Sec. 4.87. Under Sec.
4.87, VA will redesignate DCs 6502 through 6524 as DCs 6220 through
6235, respectively. VA discusses in more detail below any changes to
the sections and/or DCs under this new arrangement (e.g., Sec. Sec.
4.85 through 4.87).
A. Audiology and Hearing Loss
1. Defining Hearing Loss Disability
VA considered expanding the current definition of hearing loss,
located at 38 CFR 3.385, to include the concept of acoustic ``notches''
(see below). However, VA concluded that the current definition of
hearing loss is sufficient and fair for evaluating levels of
disability.
Noise exposure is often associated with a pattern of hearing loss
across frequencies referred to as ``noise notches'' or a ``notch.''
According to a 2006 Institute of Medicine (IOM) study, a noise notch
typically shows hearing that is normal or nearly normal at lower
frequencies (less than 2000 Hertz (Hz)), with worse hearing thresholds
typically occurring at frequencies in the 3000-6000 Hz region, with
better hearing thresholds at 8000 Hz. IOM, Noise and Military Service:
Implications for Hearing Loss and Tinnitus 38 (The National Academies
Press, 2006). A notched pattern in the 3000-6000 Hz frequency region,
together with supporting evidence from a detailed case history, can
lead to the diagnosis of noise-induced hearing loss. However, this
characteristic pattern in the high frequencies is not limited to noise-
induced hearing loss. The high-frequency hearing loss pattern from
aging is indistinguishable from the cumulative effects of noise-induced
hearing loss. See Linda M. Luxon, ``The clinical diagnosis of noise
induced hearing loss,'' Biological Effects of Noise 83-113 (Deepak
Prasher and Linda Luxon eds. 1998); Victor Osei-Lah and L.H. Yeoh,
``High-frequency audiometric notch: an outpatient clinic survey,''
49(2) Int'l J. of Audiology 95-98 (2010).
More recent publications examined noise notches in the veteran
population to again define the presence or absence of a noise notch
more objectively than by simply relying on the visual pattern of high
frequency hearing loss. See, e.g., Richard H. Wilson and Rachel
McArdle, ``Characteristics of the Audiometric 4,000 Hz Notch (744,553
veterans) and 3,000, 4,000 and 6,000 Hz Notches (539,932 veterans),''
50 J. of Rehabilitative Research and Development 111-32 (2013); Ross
Coles et al., ``Guidelines on the diagnosis of noise-induced hearing
loss for medicolegal purposes,'' 25(4) Clin. Otolaryngology 264-73
(2000). However, the observed pattern of hearing loss in these studies
neither rebutted nor confirmed noise injuries. In the Wilson and
McArdle study, nothing indicated that notched audiograms were
characteristic of audiograms in veterans of any age. Similarly, Coles
et al. noted that the presence of notches was not indicative of noise
exposure because such configurations were found in people with no
significant noise exposure and not in persons with known exposure.
Given the results of these studies, VA concludes that including notches
in a definition of hearing loss disability would not rationally justify
compensation benefits to veterans. Therefore, VA proposes no
substantive changes to the current definition in Sec. 3.385.
2. Proposed Changes to Audiology
Although VA will not alter its definition of hearing loss for
compensation purposes, it proposes several updates of the current
terminology found in 38 CFR 3.385, 4.85-4.86. VA also proposes a note
to Sec. 4.85 adding a 10 percent evaluation for noncompensable hearing
loss with tinnitus present, where tinnitus is related to the diagnosis
of hearing loss.
i. Terminology Updates
VA proposes a number of nonsubstantive changes for readability and
to update terminology according to current medicine. VA proposes to
replace the terms ``speech recognition'' and ``speech discrimination''
with ``word recognition'' in Sec. 3.385 and throughout Sec. 4.85.
Although used interchangeably, the term most frequently used today is
``word recognition.''
VA also proposes to replace the term ``hearing impairment'' or
``impaired hearing'' with ``hearing loss'' throughout Part 3 and Part
4, as ``hearing loss'' is more commonly used today.
In addition, VA proposes to change the spelling of ``puretone''
throughout Sec. Sec. 4.85 and 4.86, to include tables VI and VIA.
According to Dorland's Illustrated Medical Dictionary 179 (32d ed.
2012), two words form the correct spelling, i.e., ``pure tone'' or, as
a compound adjective before the noun, ``pure-tone threshold.''
During the October 2011 audiology forum, VA received a
recommendation to clarify the units that it uses to measures hearing
loss. Therefore, VA also proposes to add to 4.85, paragraph (a),
``Hearing levels are measured in decibels and expressed as dB HL.''
Finally, VA proposes to replace the term ``rating veterans service
representative'' in Sec. 4.86 with ``rating
[[Page 8480]]
activity.'' This terminology update recognizes that not all claims are
adjudicated by a rating veterans service representative (RVSR); some
decisions are rendered by a decision review officer (DRO) or another
individual with the proper authority to adjudicate a claim for
benefits. This terminology update does not otherwise change the
application of the provisions in Sec. 4.86.
ii. Pure-Tone Air Conduction Threshold
Currently, VA evaluates hearing loss using pure-tone thresholds,
but no regulation specifies the type of measurement. Audiology pure-
tone threshold uses either air or bone conduction testing. See Joe
Walter Kutz Jr. et al., ``Audiology Pure-Tone Testing,'' Medscape
Reference, http://emedicine.medscape.com/article/1822962-overview#showall (last visited July 24, 2018). VA proposes to clarify
that pure-tone thresholds refer to air conduction thresholds throughout
Sec. Sec. 3.385, 4.85, and 4.86, to include tables VI and VIA. VA
chose this particular technique because it measures the usual mode of
hearing. On the other hand, bone conduction testing is simply a
diagnostic tool and one of a battery of tests by which audiologists
determine the etiology and severity of hearing loss. To reflect this
change, VA proposes to replace the term ``puretone threshold'' with
``pure-tone air conduction threshold'' wherever it appears in
Sec. Sec. 4.85 and 4.86. Similarly, VA also proposes to replace the
references to ``auditory'' thresholds in Sec. 3.385 with ``pure-tone
auditory air conduction'' thresholds.
iii. Word Recognition Testing
Current Sec. 4.85(c) provides that ``Table VIA will be used when
the examiner certifies that use of the speech discrimination test is
not appropriate because of language difficulties, inconsistent speech
discrimination scores, etc., or when indicated under the provisions of
Sec. 4.86.'' VA proposes to clarify the term ``language difficulties''
with the addition of the phrase ``e.g., English non-fluency.'' Several
VA audiology experts with whom the Veterans Benefits Administration
consulted noted that the most common language difficulty in service
members is that their first language is not English, thus invalidating
the speech discrimination scores. Additionally, an increased number of
service members have cognitive difficulties resulting from traumatic
brain injuries. These injuries result in decreased speech
discrimination scores. See, e.g., Henry L. Lew et al., ``Audiology
dysfunction in Traumatic Brain Injury,'' 44(7) J. of Rehabilitation
Research & Development 921-28 (2007). Therefore, VA also proposes to
add ``cognitive difficulties'' to the list of reasons why word
recognition testing may be inappropriate.
iv. Percentage Evaluation for Hearing Loss (Diagnostic Code 6100)
VA proposes to revise the evaluation criteria for this DC in order
to provide (1) a 10 percent rating for tinnitus associated with
service-connected, noncompensable hearing loss, and (2) two notes
pertaining to tinnitus. Tinnitus is defined as the perception of sound
in the absence of an external source. In many cases, the patient cannot
identify the onset or cause of the tinnitus. J.L. Stouffer and Richard
S. Tyler, ``Characterization of tinnitus by tinnitus patients,'' 55(3)
J. of Speech and Hearing Disorders, 439-53 (Aug. 1990). However,
current medicine reflects that tinnitus likely results from abnormal
neural activity at some point or points in the auditory pathway, which
is incorrectly interpreted by the brain as an actual sound. Id. As a
result, it is a symptom associated with an underlying condition, such
as hearing loss, Meniere's disease, traumatic brain injury and cerebral
atherosclerosis, not an independent disease. Id.
Recognition of tinnitus for evaluation purposes dates back to at
least 1925, when raters were instructed to ``add 15 [percent] to loss
of hearing as a combined rating.'' ``The Schedule for Rating of
Disability Ratings,'' U.S. Veterans' Bureau, Table II, p.59 (1925 ed.).
Accordingly, tinnitus was rated in conjunction with hearing loss,
rather than a disease in and of itself. In a final rule published in
1976, VA's rating criteria recognized tinnitus for evaluation purposes
when ``[p]ersistent as a symptom of head injury, concussion, or
acoustic trauma.'' 41 FR 11291, 11298 (Mar. 18, 1976). In a final rule
published in 1999, in part motivated by an effort to standardize
tinnitus evaluations beyond these three specific injuries, the
regulation was changed to award a single 10 percent evaluation without
mention of the underlying condition resulting in tinnitus. 64 FR 25202,
25206 (May 11, 1999). While not intended by VA, this rulemaking created
the impression that tinnitus is an independent condition, rather than a
symptom associated with an underlying condition. VA's intent with the
presently proposed revision is to accurately restore the medically-
supported relationship between tinnitus and an underlying pathology,
consistent with current medical practice.
VA proposes to evaluate tinnitus only as part of its underlying
pathology and to delete DC 6260 entirely. In other words, tinnitus will
be compensated through application of DCs 6100, 6204, 6205, 8045, 8046,
or 9305, depending on its service-connected cause. For tinnitus
associated with service-connected hearing loss in particular, the
presence of tinnitus generally does not impact earning capacity beyond
what is already contemplated at the compensable levels of hearing loss,
though VA recognizes that the presence of tinnitus combined with
noncompensable hearing loss could have more than a 0% impact on earning
capacity. Thus, DC 6100 will provide a 10% evaluation for tinnitus
associated with hearing loss only when hearing loss is noncompensable
(only when hearing loss, on its own, does not warrant a 10% evaluation
or higher). If hearing loss is compensable (warranting a 10% evaluation
or greater), an additional 10% evaluation for tinnitus associated with
the hearing loss shall not be assigned.
To that end, VA will add two notes under DC 6100. The first note
will list examples of which disabilities contemplate tinnitus as a
symptom of a given underlying pathology. The second note will provide
that tinnitus is only compensated as part of an underlying service-
connected condition. VA notes that this proposal will have no impact on
veterans currently in receipt of service connection for tinnitus under
DC 6260; these evaluations are governed under the provisions of 38 CFR
3.951(a).
v. DC 6100 and Extraschedular Consideration
In Doucette v. Shulkin, 28 Vet. App. 366, 373 (2017), the U.S.
Court of Appeals for Veterans Claims noted the potential value if VA
``provide[d] additional guidance on what symptoms the rating criteria
[for hearing loss] contemplate.'' Doucette involved a veteran who
argued for extraschedular consideration under 38 CFR 3.321(b)(1)
because his hearing loss resulted in difficulty distinguishing sounds
in a crowded environment, locating the source of sounds, understanding
conventional speech, hearing the television, and using the telephone.
Id. at 371. The court held that such functional effects of decreased
hearing and difficulty understanding speech in an everyday environment
were contemplated by the schedular rating criteria, id. at 369, 371-72,
though a dissenting judge argued that the ``criteria are inadequate to
contemplate a veteran's functional effects and entire disability
picture.'' Id. at 374 (Schoelen, J., dissenting).
[[Page 8481]]
In response to the court's statement concerning additional
guidance, we clarify here that DC 6100 contemplates all natural or
expected effects of decreased hearing. It is expected and natural that
a veteran with hearing loss like Mr. Doucette will, for example,
experience difficulties distinguishing sounds or using the telephone.
The schedule was designed to determine a veteran's level of hearing
loss disability through objective testing and match it to a disability
rating that compensates for the average impairment in earning capacity
associated with that level of disability. 38 U.S.C. 1155; 38 CFR 4.1,
4.10, 4.85. To the extent a particular veteran's hearing loss may seem
more impactful than the rating provided, that is characteristic of a
schedule that compensates for ``the average impairments of earning
capacity''--it is not an indication that the schedule is inadequate. 38
U.S.C. 1155.
When a symptom of a hearing loss disability properly rated under
this code is unusual or exceptional for that disability, and not
contemplated by the code, there are alternative methods to ensure that
a veteran is adequately compensated. First, if the symptom of the
hearing loss disability implicates a disability addressed elsewhere in
the schedule, an evaluation may be appropriate under the listed
diagnostic code which accounts for the disability. If the symptom
implicates a disability that is not listed in the schedule, an
evaluation may be appropriate by analogy using a closely related
disease or injury, giving due consideration to the functions affected,
anatomical localization, and symptomatology. 38 CFR 4.20. In such a
case, because another diagnostic code in the schedule addresses a
disability analogous to the disability implicated by the symptom, the
schedule is not inadequate to rate the veteran's disability. Finally,
if the unusual or exceptional symptom of the hearing loss disability
does not implicate any other provision or code in the schedule (either
directly or through analogy), the schedule may not contemplate the
hearing loss disability presented; and 38 CFR 3.321(b)(1) may be
considered.
B. Ear, Nose, and Throat Disabilities--Proposed Changes to Sec. 4.87
As noted above, VA proposes to relocate a number of conditions from
Sec. 4.97 to Sec. 4.87. It also intends to update several of the
relocated codes, as well as DCs already included in Sec. 4.87, to
ensure that the medical descriptions reflect the most current
knowledge, practice, and standards of care, and that the criteria
determining the levels of compensation provide fair and accurate
benchmarks for veterans. As VA intends to relocate a number of
conditions affecting the nose, throat and larynx (voice box) to Sec.
4.87, VA proposes to retitle this section from ``Schedule of ratings--
ear'' to ``Schedule of ratings--ear, nose, and throat.''
1. Diagnostic Code 6200
VA proposes to revise the note under this DC from ``Evaluate
hearing loss, and complications such as labyrinthitis, tinnitus, facial
nerve paralysis, or bone loss of skull, separately.'' to ``Evaluate
hearing loss and complications such as labyrinthitis, facial nerve
paralysis, or bone loss of skull, separately.'' This revision is
necessary as tinnitus associated with hearing loss is now contemplated
under DC 6100.
2. Diagnostic Code 6202
VA currently evaluates otosclerosis under DC 6202. To ensure
greater consistency in decision making, VA proposes to rename this code
to include residuals of stapedectomy and stapedotomy. Surgeons perform
these procedures involving the middle ear to prevent further
deterioration of hearing caused by otosclerosis by improving the
movement of sound to the inner ear. The primary residual of
stapedectomy and stapedotomy is continued hearing loss, albeit without
further deterioration of hearing, so VA may evaluate these conditions
similarly to otosclerosis by the degree of the hearing loss. See S.
George Lesinski, ``Causes of Conductive Hearing Loss After Stapedectomy
or Stapedotomy: A Prospective Study of 279 Consecutive Surgical
Revisions,'' 23(3) Otology & Neurotology 281-88 (May 2002).
3. Diagnostic Code 6204
Peripheral vestibular disorders (DC 6204) may originate in one or
both ears and may cause varying degrees of disability. B. Gurr and N.
Moffat, ``Psychological consequences of vertigo and the effectiveness
of vestibular rehabilitation for brain injury patients,'' 15 Brain
Injury 387 (2001); Hannelore K. Neuhauser et al., ``Burden of dizziness
and vertigo in the community,'' 168 Archives of Internal Medicine 2118
(2008). DC 6204 currently evaluates such disorders using only dizziness
and staggering (i.e., alteration of gait). VA therefore proposes to
amend DC 6204 to better reflect the full scope of these disorders and
their effect on a veteran's ability to work and engage in other
activities that impact earning capacity.
Specifically, VA proposes to provide increasingly higher ratings
depending on the impact of a veteran's vestibular disorder on
activities of self-care. VA may evaluate self-care activities for the
purposes of this DC using assessments by qualified health care
providers that address the capacity to bathe, dress, eat, manage
hygiene, and/or move the body from place to place. VA will also
evaluate the ability to work, to include whether the veteran requires
significant modification and/or accommodation to accomplish tasks.
Additionally, VA intends to expand the current disability evaluation
levels from two (10 and 30 percent) to three (10, 30, and 100 percent);
the 100 percent evaluation will include veterans whose vestibular
disorders severely impact their life and result in the substantial
inability to work.
The proposed criteria provide a 10 percent evaluation for a
documented vestibular disorder with symptoms during the last six months
that require brief and temporary modification of activity but do not
prevent continuation of normal activities such as self-care and/or
work. VA proposes a 30 percent evaluation for symptoms that occur with
sufficient frequency to require routine limitation in activities, which
the individual can overcome with effort and some modification and/or
accommodation. VA proposes a 100 percent evaluation for symptoms that
result in an inability to independently perform self-care and/or work
activities, even with modification of activity or accommodation.
Finally, VA proposes two notes for this DC--one defining self-care
activities and another continuing this DC's current requirement of
objective findings supporting the diagnosis.
4. Diagnostic Code 6205
Originating in the inner ear, the specific causes of Meniere's
syndrome (DC 6205) remain unclear. However, the effects, which may
include vertigo, tinnitus, hearing loss, and unstable gait, may impact
a veteran's earning capacity. The current rating criteria for DC 6205
provide for 30, 60, and 100 percent evaluations depending upon the
presence of hearing loss and the frequency of attacks of vertigo and
cerebellar gait. Alternatively, rating personnel must separately
evaluate vertigo (as a peripheral vestibular disorder) and hearing loss
if a higher combined rating for Meniere's syndrome results.
VA does not intend to significantly alter the current rating
criteria for DC 6205. However, it does propose to change evaluative
criteria so they are consistent and clear. VA proposes to alter the
frequency for the 100 percent evaluation from ``more than once
[[Page 8482]]
weekly'' to ``five or more times a month'' to be consistent with the
monthly timeframes provided in the 30 and 60 percent levels. VA also
proposes to eliminate the current reference to ``attacks of vertigo and
cerebellar gait.'' Individuals with Meniere's syndrome experience
attacks of dizziness (or vertigo) that appear suddenly but may or may
not result in gait disturbance. See ``Meniere's disease,'' National
Institute on Deafness and Other Communication Disorders, https://www.nidcd.nih.gov/health/balance/pages/meniere.aspx (last visited July
24, 2018). Occasionally, however, an individual's vertigo is so extreme
and frequent that it results in disequilibrium or gait instability. Id.
Therefore, VA proposes to include vertigo in all evaluation levels,
with the only reference to gait being the 100 percent evaluation. VA
proposes a 100 percent evaluation for hearing loss with either
persistent disequilibrium and gait instability, or with vertigo
occurring five or more times a month. Finally, VA proposes to
reorganize the criteria within each evaluation for improved clarity and
usability. Specifically, VA notes that each evaluation currently
includes hearing loss. The crucial point is the frequency of vertigo
or, for a 100-percent evaluation, the presence of persistent
disequilibrium. VA proposes to reorganize the criteria to emphasize
this.
VA intends to amend the current note to DC 6205 and redesignate it
as Note (3). For reasons explained in this preamble's discussion of
tinnitus, proposed Note (3) will no longer include any reference to a
separate evaluation for tinnitus.
To ensure consistent evaluations, VA proposes to include a new Note
(1), which will indicate that the Meniere's diagnosis must be made by a
otolaryngologist or neurologist. Id. The requirement for a specialist
evaluation is based on the complexity of the diagnostic work up. This
work up is best performed by those whose focus is on this area of
medical care, as opposed to a provider without focused expertise, to
ensure the proper diagnostic assessment is made. In addition, VA
proposes a new Note (2) to direct rating personnel to calculate the
average vertigo frequency using a six-month period. This period ensures
that the assigned evaluation represents the average level of
impairment, taking into account occasional flare-ups that may not
represent a true increase in the overall severity of the disease.
5. Diagnostic Code 6260
As previously noted under revisions to Sec. 4.85, VA proposes to
remove DC 6260.
6. Relocated Diagnostic Codes
As previously noted, VA proposes to move 16 conditions from Sec.
4.97 (the Respiratory System) to Sec. 4.87 (the proposed ENT System).
VA will redesignate these DCs, currently designated 6502 through 6524,
as DCs 6220 through 6240, respectively. VA proposes to change the
evaluation criteria for a number of these relocated DCs. However, VA
proposes no substantive changes to the following codes: DC 6502,
Septum, nasal, deviation of (proposed DC 6220); DC 6515, Laryngitis,
tuberculous, active or inactive (proposed DC 6227); DC 6516,
Laryngitis, chronic (proposed DC 6228); DC 6518, Laryngectomy, total
(proposed DC 6229); DC 6519, Aphonia, complete organic (proposed DC
6230); and DC 6521, Pharynx, injuries to (proposed DC 6232). VA will
update accordingly any references to these DCs within other codes.
i. Diagnostic Code 6504
In relocating DC 6504, loss of part of the nose or nasal scars, to
Sec. 4.87, VA proposes to redesignate it as DC 6221. The current
criteria for DC 6504 assign 10 or 30 percent evaluations based on the
exposure of nasal passages, loss of ala (the wings of the nose), or
other obvious disfigurement. This focus on loss of particular nasal
parts, rather than on the overall quantifiable loss of nasal tissue
and/or structure, may result in inconsistent evaluations for similarly
disabling conditions. As such, VA proposes to assign evaluations based
on defined loss of the nose (i.e., more or less than half).
Additionally, because the use of nasal prosthetics often has a positive
impact on an individual's psychosocial functioning, VA proposes to
incorporate the mitigating value of any nasal prosthetics used. VA
intends to provide for higher ratings when the loss is not amenable to
the use of prosthesis. See Satyabodh S. Guttal et al., ``Interim
Prosthetic Rehabilitation of a Patient Following Partial Rhinectomy: A
Clinical Report,'' 4(4) European J. of Dentistry 482, 482-83 (Oct.
2010).
Under the proposed criteria, VA would assign a 0 percent evaluation
for any loss or disfigurement of the nose for which a qualified medical
provider does not require or recommend a prosthesis. VA would assign a
10 percent evaluation for any loss of the nose for which a qualified
medical provider requires or recommends a prosthesis and the patient is
capable of using it. VA proposes a 20 percent evaluation for a loss
that a prosthesis cannot treat (as documented by a qualified provider)
and that loss involves less than 50 percent of the nose. Finally, VA
proposes a 30 percent evaluation for a loss that a prosthesis cannot
treat (as documented by a qualified provider) and that loss involves at
least 50 percent or more of the nose. VA intends to retain the current
note directing rating personnel to alternatively evaluate any loss or
scar under DC 7800, disfiguring scars of the head, face, or neck.
ii. Diagnostic Codes 6510, 6511, 6512, 6513, and 6514
Current DCs 6510 through 6514 all refer to various types of chronic
sinusitis evaluated using the General Rating Formula for Sinusitis,
located under DC 6514. VA proposes to redesignate these codes as DCs
6222 through 6226, respectively, under Sec. 4.87; additionally, VA
proposes to rename each code to reflect current medical terminology. VA
proposes to rename the redesignated DC 6222 as ``Rhinosinusitis,
pansinusitis.'' VA proposes to rename the redesignated DC 6223 as
``Rhinosinusitis, ethmoid.'' VA proposes to rename the redesignated DC
6224 as ``Rhinosinusitis, frontal.'' VA proposes to rename the
redesignated DC 6225 as ``Rhinosinusitis, maxillary.'' VA proposes to
rename the redesignated DC 6226 as ``Rhinosinusitis, sphenoid.'' VA
also proposes to reflect current medical terminology by renaming the
General Rating Formula for Sinusitis as General Rating Formula for
Chronic Rhinosinusitis and Recurrent Acute Rhinosinusitis. VA will
place this renamed rating formula immediately before the redesignated
DC 6222.
To modernize the rating schedule in regard to chronic sinusitis, VA
will first introduce current medical terminology and definitions.
Rhinosinusitis is defined as symptomatic inflammation of the paranasal
sinuses and nasal cavity. Modern medicine understands three different
clinical presentations of inflamed nasal passages and sinuses
(rhinosinusitis): Acute, recurrent acute, and chronic. Richard M.
Rosenfeld et al., ``Clinical practice guideline: Adult sinusitis,''
137(3 Supp.) Otolaryngology-Head and Neck Surgery S19, Table 10 (2007).
Acute rhinosinusitis (ARS) is defined as up to four weeks of
purulent drainage (anterior, posterior, or both) accompanied by nasal
obstruction, facial fullness, or both. Acute rhinosinusitis can occur
as viral rhinosinusitis (or VRS, defined as rhinosinusitis caused by a
virus and
[[Page 8483]]
typically lasting less than 10 days). Acute rhinosinusitis can also
occur as acute bacterial rhinosinusitis (or ABRS, defined as a
bacterial infection that causes symptoms of rhinosinusitis for at least
10 days after the onset of an upper respiratory infection or causes
recurrence of symptoms within seven days after initial improvement). If
rhinosinusitis symptoms last at least four but less than 12 weeks, it
is defined as subacute rhinosinusitis (SAR). Id.
Recurrent acute rhinosinusitis (RARS) is defined as four or more
episodes of ABRS without signs or symptoms of rhinosinusitis between
episodes. Id.
Finally, chronic rhinosinusitis, or CRS, is defined as 12 weeks or
more of at least two of the following--mucopurulent drainage (anterior,
posterior, or both); nasal obstruction (congestion); facial pain-
pressure-fullness; or decreased sense of smell--in combination with
inflammation as documented by at least one of the following: Purulent
mucus (not clear) in the middle meatus or ethmoid region; polyps in the
nasal cavity or the middle meatus; or radiographic imaging showing
inflammation of the paranasal sinuses. Id.
VA compensates disabilities that impair earning capacity, not
temporary conditions that generally do not impact earning capacity. See
38 U.S.C. 1155; Davis, 276 F.3d at 1345-47; see also Moore, 555 F.3d at
1373. In that regard, CRS and RARS are distinguishable from ARS and
SAR. To assist the public and rating activity in better understanding
what disabilities are compensated under this General Rating Formula, VA
proposes to include a note identifying which conditions are eligible
for compensation and another note specifying which conditions are
explicitly excluded from compensation.
The present rating criteria evaluate chronic sinusitis
predominantly on the frequency of ``incapacitating episodes,'' which
includes prolonged antibiotic treatment, as well as the need for ``bed
rest'' and ``treatment by a physician.'' Current standards of medical
care, however, no longer describe incapacitating episodes or bed rest
as treatment. VA therefore proposes to retain those elements of the
existing criteria--namely, frequency/duration of antibiotic treatment--
that still relate to current medical practice and eliminate reference
to incapacitating episodes. VA also proposes to retain the 50 percent
criteria that require unresponsiveness to surgery to reflect the
severity of disability that accompanies that rating level.
In light of the above, VA's proposed General Rating Formula for
Chronic Rhinosinusitis (CRS) and Recurrent Acute Rhinosinusitis (RARS)
will retain the same rating levels as the current General Rating
Formula for Sinusitis (i.e., 0, 10, 30, and 50 percent). The criteria
begin with a 50 percent evaluation granted for CRS/RARS which requires
12 weeks or more of treatment with antibiotics and unresponsiveness to
surgical intervention with endoscopy or other surgical procedure
designed to treat CRS/RARS. A 30 percent evaluation will be granted for
CRS/RARS that requires 12 weeks or more of treatment with antibiotics
during the preceding 12-month period. A 10 percent evaluation will be
granted for CRS/RARS which requires antibiotic treatment for at least
four weeks but less than 12 weeks during the preceding 12-month period.
Finally, a 0 percent evaluation will be granted when there has been
less than four weeks treatment with antibiotics during the preceding
12-month period. Rosenfeld, supra, at S1-31; see also Thomas A. Tami,
``Granulomatous Diseases and Chronic Rhinosinusitis,'' 38 Otolaryngol.
Clin. N. Am. 1267-78 (2005).
Finally, DC 6514 currently contains a note that defines an
``incapacitating episode'' for purposes of assigning evaluations. The
proposed criteria above render this note no longer necessary, so VA
proposes to delete it.
iii. Diagnostic Code 6520
VA proposes to redesignate stenosis of the larynx, currently
evaluated under DC 6520, as DC 6231. It also proposes to amend the
rating criteria for this DC, which will result in evaluations based
upon the measured degree of stenosis, rather than the current
utilization of PFTs. While stenosis of the trachea may affect PFTs,
many other diseases may also impact them. Advances in diagnostic
devices, including fiber optics, have improved visualization of the
larynx and its associated structures and allowed more accurate
assessment of anatomy. L. Sulica, ``Hoarseness,'' 137 Archives of
Otolaryngology-Head and Neck Surgery 616 (2011). Hence, VA proposes to
update its evaluative criteria.
Specifically, VA proposes to evaluate partial obstruction of the
larynx with less than 25 percent narrowing of the airways as 30 percent
disabling. VA proposes a 50 percent evaluation for partial obstruction
of the larynx, with 25 percent to less than 50 percent narrowing of
airways. Partial obstruction of the larynx, with 50 percent or more
narrowing of airways, will warrant a 70 percent evaluation. Finally, VA
proposes to assign a 100 percent evaluation for obstruction of the
larynx, requiring permanent tracheostomy. VA will retain the current
note allowing for an alternative evaluation as aphonia. VA notes that
research indicates airway cross-sectional area reduced by 50 percent or
more impairs breathing. See Sylvia Verbanck et al., ``Detecting upper
airway obstruction in patients with tracheal stenosis,'' 109 J. of
Applied Physiology 47 (July 2010). As such, obstruction less than 50
percent reflects no more than moderate disability (i.e., warranting a
30 or 50 percent evaluation).
iv. Diagnostic Code 6522
The current DC 6522 is ``Allergic or vasomotor rhinitis'' and VA
will rename it ``Rhinitis, allergic or nonallergic (vasomotor).'' VA
proposes to redesignate this DC as 6240 under Sec. 4.87. VA also
proposes to modify the rating criteria to reflect current medical
understanding and practice. First, VA proposes to modify the criteria
for a 10 percent rating to require continuous therapy (almost always
self-administered) to control symptoms. VA also proposes a 30 percent
rating for the presence of polyps, preserving the prior rating
criteria. VA will add a note that directs personnel to rate under
proposed DC 6233 (rhinosinusitis, allergic and nonallergic (vasomotor)
related) using the General Rating Formula for Rhinosinusitis instead of
proposed DC 6240 (Rhinitis, allergic or nonallergic (vasomotor)) if
either chronic or recurrent acute form of rhinosinusitis is present.
See Rosenfeld, supra at S1-31.
v. Diagnostic Code 6523
Currently, DC 6523 (bacterial rhinitis) addresses chronic residuals
related to bacterial infection of the sinuses. VA proposes to
redesignate DC 6523 as 6234 under Sec. 4.87. Additionally, VA proposes
to rename this DC, ``Rhinosinusitis, infection related,'' for clarity
to ensure that readers understand that it includes rhinosinusitis
caused by bacterial or fungal agents.
VA proposes that infection-related rhinosinusitis be evaluated
under the proposed General Rating Formula for CRS and RARS to, again,
reflect current medical understanding.
vi. Diagnostic Code 6524
Current DC 6524 (granulomatous rhinitis) provides for a 100 percent
evaluation for Wegener's granulomatosis or lethal midline granuloma; VA
assigns a 20 percent evaluation for other types of granulomatous
infection. These evaluations are outdated for a number of reasons.
Modern medical science has identified lethal midline granuloma (also
referred to as lymphomatoid
[[Page 8484]]
granulomatosis or polymorphic reticulosis) as a peripheral T-cell
lymphoma. Wegener's (now referred to as granulomatous disease with
polyangiitis, or GPA), Churg-Strauss disease (now referred to as
eosinophilic granulomatous disease with polyangiitis, or EGPA), and
sarcoidosis are all autoimmune conditions that can affect the sinuses
and nasal passages. They typically require systemic immunosuppressive
treatment for extended periods (one to two years, or more) and may
recur, requiring resumption of immunosuppressive treatment. As a
result, VA proposes several revisions to incorporate current medical
understanding of these conditions.
First, VA proposes to redesignate this code as DC 6235 under Sec.
4.87. Second, VA proposes to rename this code ``Rhinosinusitis,
autoimmune, granulomatous or other causes,'' to update terminology.
Third, VA proposes to ensure consistent application by adding a note
that directs rating personnel to evaluate lethal midline granuloma
under proposed DC 6238, as such condition is best characterized as a
malignant neoplasm. Fourth, VA proposes to transfer the 100 percent
evaluation from the current DC 6524 to the new DC 6235, as well as
modify its criteria by linking it to the current use of systemic
immunosuppressive therapy. Fifth, VA proposes to direct personnel to
use the proposed General Rating Formula for CRS and RARS for any
evaluation less than 100 percent under proposed DC 6235. This
instruction helps ensure appropriate, uniform ratings for any chronic
residuals that do not rise to the level of malignancy.
7. Proposed New Diagnostic Codes
In addition to amending current DCs under Sec. 4.87 and relocating
those from Sec. 4.97, VA proposes to add several new conditions to
better evaluate veterans using a more complete ear, nose and throat
schedule.
i. Diagnostic Code 6233
The first new DC VA proposes to add to Sec. 4.87 is
Rhinosinusitis, allergic and nonallergic (vasomotor) related (DC 6233).
This DC enables rating personnel to capture CRS or RARS as a
consequence of DC 6240 (Rhinitis, allergic or nonallergic (vasomotor)).
DC 6240 will instruct rating personnel to select DC 6233
(rhinosinusitis, allergic or nonallergic (vasomotor) related) if either
CRS or RARS is present.
ii. Diagnostic Code 6236
A new condition frequently present in veterans that VA proposes to
add to Sec. 4.87 is vocal cord paralysis (DC 6236). Its primary
symptom is hoarseness, so VA proposes to direct rating personnel to
evaluate this condition analogous to chronic laryngitis (DC 6228) or
aphonia (DC 6230). See Seth R. Schwartz et al., ``Clinical practice
guideline: Hoarseness (dysphonia),'' 141(Supp. 3) Otolaryngology-Head
and Neck Surgery S1 (2009).
iii. Diagnostic Codes 6237 and 6238
Benign and malignant neoplasms of the nasopharynx occur with such
sufficient frequency among veterans that VA proposes to add discrete
codes (DCs 6237 and 6238, respectively) for these conditions. VA
proposes to rate benign neoplasms according to impairment of function
by utilizing the most appropriate evaluation criteria because the
disability due to these neoplasms varies. The addition of DC 6237 does
not represent a substantive change in the evaluation of benign
neoplasms, but it allows for better tracking and data analysis of this
condition by providing a specific DC.
VA proposes to evaluate malignant neoplasms similarly to other
malignancies in the VASRD. Specifically, VA will assign an evaluation
of 100 percent for six months beyond the cessation of any surgery,
radiation treatment, antineoplastic chemotherapy, or other therapeutic
procedures. Then, VA will determine the appropriate disability rating
by ordering a mandatory VA examination. VA will apply the provisions of
Sec. 3.105(e) of this chapter to any change in evaluation based upon
that or any subsequent examination. Rating personnel will evaluate
residual impairment of function barring subsequent local recurrence or
metastasis.
iv. Diagnostic Code 6239
VA proposes to add a new DC for diseases of the salivary glands,
other than neoplasms (DC 6239). These conditions generally result in
xerostomia (dry mouth), a condition that may lead to secondary effects
of dental disease, nutritional deficit, pain, formation of salivary
duct stones, and/or changes in taste. See James J. Sciubba and David
Goldenberg., ``Oral complications of radiotherapy,'' 7 Lancet Oncology
175 (2006); S.B. Jensen et al., ``A systematic review of salivary gland
hypofunction and xerostomia induced by cancer therapies: management
strategies and economic impact,'' 18 Support Care Cancer 1061 (2010).
VA proposes to assign a 0 percent evaluation for xerostomia (dry
mouth) not accompanied by secondary conditions such as difficulty in
mastication of food or painless swelling of the salivary glands. VA
would assign a 10 percent evaluation for xerostomia with altered
sensation of taste and difficulty with lubrication and mastication of
food but without associated weight loss or increase in dental caries.
VA would also award a 10 percent evaluation if there was chronic
inflammation of a salivary gland with pain and swelling on eating; or
one or more salivary calculi, or gland stricture. Finally, VA proposes
a maximum 20 percent evaluation for xerostomia with altered sensation
of taste and difficulty with lubrication and mastication of food that
results in either weight loss or an increase in dental caries. Diseases
of the salivary glands may also result in neurological residuals and
facial disfigurement due to swelling, so VA intends to include a note
directing rating personnel to evaluate such residuals under the
appropriate code(s).
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 an economically 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 proposed 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 no small
entities or businesses assign evaluations for disability claims.
Therefore, pursuant to 5 U.S.C. 605(b), the initial and final
regulatory flexibility
[[Page 8485]]
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 is likely to 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 given year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act
Although this proposed rule contains provisions constituting a
collection of information under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3521), no new or proposed revised collections of
information are associated with this proposed rule. Specifically, the
information collection requirements associated with this proposed rule
are related to the filing of disability benefits claims (VA Form 21-
526EZ) as well as Disability Benefits Questionnaires (DBQs) (Groups 3
and 4) which enable claimants to gather the necessary information from
his or her treating physician as to the current symptoms and severity
of a disability. The information collection requirements are approved
by OMB and have been assigned OMB control numbers 2900-0747, 2900-0778,
and 2900-0781.
Assistance Listing
The Assistance Listing numbers and titles for this rule are 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.
List of Subjects
38 CFR Part 3
Claims, Disability benefits, Pensions, Veterans.
38 CFR Part 4
Disability benefits, Pensions, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on July 6, 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.
Michael P. Shores,
Director, Office of Regulation Policy & Management, Office of the
Secretary, Department of Veterans.
For the reasons set forth in the preamble, VA proposes to amend 38
CFR parts 3 and 4 as set forth below:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, subpart A, continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. Amend Sec. 3.350 by revising paragraphs (e)(1)(iii), (e)(1)(iv),
(f)(2)(v), and (f)(2)(vi) to read as follows:
Sec. 3.350 Special monthly compensation ratings.
* * * * *
(e) * * *
(1) * * *
(iii) Bilateral deafness rated at 60 percent or more disabling (and
the hearing loss in either one or both ears is service connected) in
combination with service-connected blindness with bilateral visual
acuity 20/200 or less.
(iv) Service-connected total deafness in one ear or bilateral
deafness rated at 40 percent or more disabling (and the hearing loss in
either one of both ears is service-connected) in combination with
service-connected blindness of both eyes having only light perception
or less.
* * * * *
(f) * * *
(2) * * *
(v) Blindness in both eyes having only light perception or less, or
rated under paragraph (f)(2)(iii) of this section, when accompanied by
bilateral deafness (and the hearing loss in either one or both ears is
service-connected) rated at 10 or 20 percent disabling, will afford
entitlement to the next higher intermediate rate, or if the veteran is
already entitled to an intermediate rate, to the next higher statutory
rate under 38 U.S.C. 1114, but in no event higher than the rate for
(o).
(Authority: Sec. 112, Pub. L. 98-223)
(vi) Blindness in both eyes rated under 38 U.S.C. 1114 (l), (m) or
(n), or rated under paragraphs (f)(2)(i), (ii) or (iii) of this
section, when accompanied by bilateral deafness rated at no less than
30 percent, and the hearing loss in one or both ears is service-
connected, will afford entitlement to the next higher statutory rate
under 38 U.S.C. 1114, or if the veteran is already entitled to an
intermediate rate, to the next higher intermediate rate, but in no
event higher than the rate for (o).
(Authority: 38 U.S.C. 1114(p))
0
3. Amend Sec. 3.383 by revising paragraph (a)(3) and the Cross
References to read as follows:
Sec. 3.383 Special considerations for paired organs and extremities.
(a) * * *
(3) Hearing loss in one ear compensable to a degree of 10 percent
or more as a result of service-connected disability and hearing loss as
a result of nonservice-connected disability that meets the provisions
of Sec. 3.385 in the other ear.
* * * * *
Cross References:
Sec. 3.385 Disability due to hearing loss; Sec. 4.85 Evaluation of
hearing loss.
0
4. Amend Sec. 3.815 by revising paragraph (d)(6)(viii) to read as
follows:
Sec. 3.815 Monetary allowance under 38 U.S.C. chapter 18 for an
individual with disability from covered birth defects whose biological
mother is or was a Vietnam veteran; identification of covered birth
defects.
* * * * *
(d) * * *
(6) * * *
(viii) Post-infancy deafness/hearing loss (onset after the age of
one year);
0
5. Revise Sec. 3.385 to read as follows:
Sec. 3.385 Disability due to hearing loss.
For the purposes of administering its laws, VA will consider
hearing loss to be a disability when the pure-tone auditory air
conduction threshold in any of the frequencies of 500, 1000, 2000,
3000, or 4000 Hertz is 40 decibels or greater; or when the pure-tone
auditory air conduction thresholds for at least three of the
frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels
or greater; or when word recognition scores using the Maryland CNC Test
are less than 94 percent.
PART 4--SCHEDULE FOR RATING DISABILITIES
Subpart B--Disability Ratings
0
6. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155, unless otherwise noted.
0
7. Revise the undesignated center heading before Sec. 4.85 to read as
follows:
[[Page 8486]]
Ear, Nose, Throat, and Auditory Disabilities
0
8. Amend Sec. 4.85 by:
0
a. Revising the section heading;
0
b. Revising paragraphs (a) through (g);
0
c. Revising tables VI, VIA, and VII;
0
d. Adding entry for diagnostic code 6100; and,
0
e. Adding authority citation.
The revisions and additions read as follows:
Sec. 4.85 Evaluation of hearing loss.
(a) An examination for hearing loss for VA purposes must be
conducted by a state-licensed audiologist and must include a controlled
word recognition test (Maryland CNC) and a pure-tone audiometry test.
Examinations will be conducted without the use of hearing aids. Hearing
levels are measured in decibels and expressed as dB HL.
(b) Table VI, ``Numeric Designation of Hearing Loss Based on Pure-
Tone Air Conduction Threshold Average and Word Recognition,'' is used
to determine a Roman numeral designation (I through XI) for hearing
loss based on a combination of the percent of word recognition
(horizontal rows) and the pure-tone air conduction threshold average
(vertical columns). The Roman numeral designation is located at the
point where the percentage of word recognition and pure-tone air
conduction threshold average intersect.
(c) Table VIA, ``Special Numeric Designation of Hearing Loss Based
Only on Pure-Tone Air Conduction Threshold Average,'' is used to
determine a Roman numeral designation (I through XI) for hearing loss
based only on the pure-tone air conduction threshold average. Table VIA
will be used when the examiner certifies that use of the word
recognition test is not appropriate because of language difficulties
(e.g., English non-fluency), cognitive difficulties, inconsistent word
recognition scores, etc., or when indicated under the provisions of
Sec. 4.86.
(d) ``Pure-tone air conduction threshold average,'' as used in
Tables VI and VIA, is the sum of the pure-tone air conduction
thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz, divided by four.
This average is used in all cases (including those in Sec. 4.86) to
determine the Roman numeral designation for hearing loss from Table VI
or VIA.
(e) Table VII, ``Percentage Evaluations for Hearing Loss,'' is used
to determine the percentage evaluation by combining the Roman numeral
designations for hearing loss of each ear. The horizontal rows
represent the ear having the better hearing and the vertical columns
the ear having the poorer hearing. The percentage evaluation is located
at the point where the row and column intersect.
(f) If hearing loss is service-connected in only one ear, in order
to determine the percentage evaluation from Table VII, the non-service-
connected ear will be assigned a Roman Numeral designation for hearing
loss of I, subject to the provisions of Sec. 3.383 of this chapter.
(g) When evaluating any claim for hearing loss, refer to Sec.
3.350 of this chapter to determine whether the veteran may be entitled
to special monthly compensation due either to deafness, or to deafness
in combination with other specified disabilities.
* * * * *
BILLING CODE 8320-01-P
[GRAPHIC] [TIFF OMITTED] TP15FE22.025
[[Page 8487]]
[GRAPHIC] [TIFF OMITTED] TP15FE22.026
[GRAPHIC] [TIFF OMITTED] TP15FE22.027
BILLING CODE 8320-01-C
[[Page 8488]]
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
6100 Hearing Loss:
If hearing loss is evaluated at 0 percent under Table 10
VII and tinnitus is diagnosed as associated with
underlying hearing loss...............................
Otherwise, evaluate using the Tables above.
Note (1): The 10 percent evaluation is only applicable
to tinnitus diagnosed as associated with non-
compensable service-connected hearing loss. Tinnitus
diagnosed as associated with another service-connected
disability (i.e., Meniere's disease, residuals of
traumatic brain injury (TBI), cerebral
arteriosclerosis, vascular neurocognitive disorder)
must be evaluated as a part of that disability without
a separate evaluation for tinnitus under diagnostic
code 6100.
Note (2): Tinnitus will only be compensated as part of
an underlying service-connected condition.
------------------------------------------------------------------------
(Authority: 38 U.S.C. 1155)
0
9. Revise Sec. 4.86 to read as follows:
Sec. 4.86 Exceptional patterns of hearing loss.
(a) When the pure-tone air conduction threshold at each of the four
specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 dB HL or
more, the rating activity will determine the Roman numeral designation
for hearing loss from either Table VI or Table VIA, whichever results
in the higher numeral. Each ear will be evaluated separately.
(b) When the pure-tone air conduction threshold is 30 dB HL or less
at 1000 Hertz, and 70 dB HL or more at 2000 Hertz, the rating activity
will determine the Roman numeral designation for hearing loss from
either Table VI or Table VIA, whichever results in the higher numeral.
That numeral will then be elevated to the next higher Roman numeral.
Each ear will be evaluated separately.
(Authority: 38 U.S.C. 1155)
0
10. Amend Sec. 4.87 by:
0
a. Revising the section heading;
0
b. Removing the heading ``Diseases of the Ear'';
0
c. Revising entries for diagnostic codes 6200 through 6205;
0
d. Adding entries for diagnostic codes 6220 through 6240 in numerical
order; and
0
e. Removing entry for diagnostic code 6260.
The revisions and additions read as follows:
Sec. 4.87 Schedule of ratings--ear, nose, and throat.
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
* * * * * * *
6200 Chronic suppurative otitis media, mastoiditis, or
cholesteatoma (or any combination):
During suppuration, or with aural polyps 10
Note: Evaluate hearing loss and complications such as
labyrinthitis, facial nerve paralysis, or bone loss of
skull, separately.
6201 Chronic nonsuppurative otitis media with effusion
(serious otitis media):
Rate based on hearing loss.
6202 Otosclerosis, stapedectomy, stapedotomy, residuals of:
Rate based on hearing loss.
6204 Peripheral vestibular disorders:
Vestibular disorder in one or both ears with symptoms 100
during the last six months of sufficient frequency and
intensity to result in an inability to engage in work
and/or self-care and an inability to perform routine
activities of daily living without assistance of
others, even with modification of activity or
accommodation.........................................
Vestibular disorder with symptoms during the last six 30
months that occur with sufficient frequency to require
routine limitation in activities such as those related
to work and/or self-care but that enable independent
activity with effort and some modification and/or
accommodation.........................................
Vestibular disorder with symptoms during the last six 10
months that require brief and temporary modification
of activity but do not prevent continuation of normal
functions such as work and/or self-care...............
Note (1): Self-care activities for the purposes of this
DC consist of bathing, dressing, eating, managing
hygiene, handling basic transfers, and/or mobility; a
qualified health care provider must determine that the
individual has difficulties with these activities.
Note (2): VA requires objective findings supporting the
diagnosis of peripheral vestibular disorder before
assigning a compensable evaluation under this code. VA
will separately evaluate and combine hearing loss or
suppuration...........................................
6205 Meniere's syndrome (endolymphatic hydrops):
In all cases, with hearing loss, with or without
tinnitus; and
Either:
Vertigo occurring five or more times a month; or
With persistent disequilibrium and gait instability 100
Vertigo occurring one to four times a month............ 60
Vertigo less than once a month......................... 30
Note (1): The Meniere's syndrome diagnosis must be made
by a otolaryngologist or neurologist.
Note (2): For evaluation purposes, calculate the
average vertigo frequency using a six-month period.
Note (3): Evaluate Meniere's syndrome either under
these criteria or by separately evaluating vertigo (as
a peripheral vestibular disorder) and hearing loss,
whichever method results in a higher overall
evaluation. However, do not combine an evaluation for
hearing loss or vertigo with an evaluation under this
diagnostic code.
* * * * * * *
6220 Septum, nasal, deviation of:
Traumatic only,
With 50 percent obstruction of the nasal passage on 10
both sides or complete obstruction on one side........
6221 Nose, loss of part of, or scars:
Loss of half or more, unable to use prosthesis (as 30
documented by a qualified medical provider)...........
Loss of less than half, unable to use prosthesis (as 20
documented by a qualified medical provider)...........
Any loss of the nose for which a prosthesis is required 10
or recommended by a qualified medical provider and is
capable of use........................................
[[Page 8489]]
Loss or disfigurement for which a prosthesis is not 0
required or recommended by a qualified medical
provider..............................................
Note: Or evaluate as DC 7800 (scars, disfiguring, head,
face, or neck).
General Rating Formula for Chronic Rhinosinusitis (CRS) and
Recurrent Acute Rhinosinusitis (RARS): DCs 6222-6226; 6233-
6235
12 or more weeks of treatment with antibiotics for CRS/ 50
RARS during the preceding 12-month period AND
unresponsive to endoscopic or other surgery used to
treat CRS/RARS........................................
12 or more weeks of treatment with antibiotics for CRS/ 30
RARS during the preceding 12-month period.............
At least four weeks, but less than 12 weeks of 10
treatment with antibiotics for CRS/RARS during the
preceding 12-month period.............................
Less than four weeks of treatment with antibiotics for 0
CRS/RARS during the preceding 12-month period.........
Note (1): VA will only compensate chronic
rhinosinusitis (CRS) and recurrent acute
rhinosinusitis (RARS). CRS is defined as 12 weeks or
more of at least two of the following--(a)
mucopurulent drainage (anterior, posterior, or both);
(b) nasal obstruction (congestion); (c) facial pain-
pressure-fullness; or (d) decreased sense of smell--in
combination with inflammation as documented by either
(a) purulent mucus (not clear) in the middle meatus or
ethmoid region; (b) polyps in the nasal cavity or the
middle meatus; or (c) radiographic imaging showing
inflammation of the paranasal sinuses. RARS is defined
as four or more episodes of acute bacterial
rhinosinusitis (ABRS) without signs or symptoms of
rhinosinusitis (inflammation of the paranasal sinuses
and nasal cavity) between episodes.
Note (2): VA will not compensate the following
conditions: (a) Acute rhinosinusitis (ARS), which is
defined as up to four weeks of purulent drainage
(anterior, posterior, or both) accompanied by nasal
obstruction, facial fullness, or both; (b) Viral
rhinosinusitis (VRS), which is defined as
rhinosinusitis caused by a virus and typically lasting
less than 10 days); (c) ABRS, which is defined as a
bacterial infection which causes symptoms of
rhinosinusitis for at least 10 days after the onset of
an upper respiratory infection, or causes recurrence
of symptoms within seven days after initial
improvement); and (d): Subacute rhinosinusitis (SAR),
which is defined as rhinosinusitis symptoms lasting at
least four but less than 12 weeks.
6222 Rhinosinusitis, pansinusitis.
6223 Rhinosinusitis, ethmoid.
6224 Rhinosinusitis, frontal.
6225 Rhinosinusitis, maxillary.
6226 Rhinosinusitis, sphenoid.
6227 Laryngitis, tuberculous, active or inactive. Rate
under Sec. Sec. 4.88c or 4.89, whichever is
appropriate.
6228 Laryngitis, chronic:
Hoarseness, with thickening or nodules of cords, 30
polyps, submucous infiltration, or pre-malignant
changes on biopsy.....................................
Hoarseness, with inflammation of cords or mucous 10
membranes.............................................
6229 Laryngectomy, total................................... \1\100
Rate the residuals of partial laryngectomy as
laryngitis (DC 6228), aphonia (DC 6230), or stenosis
of larynx (DC 6231).
6230 Aphonia, complete organic:
Constant inability to communicate by speech............ \1\ 100
Constant inability to speak above a whisper............ 60
Note: Evaluate incomplete aphonia as laryngitis,
chronic (DC 6228).
6231 Larynx, stenosis of, including residuals of laryngeal
trauma (unilateral or bilateral):
Total obstruction of larynx, requiring permanent 100
tracheostomy..........................................
Partial obstruction of larynx with 50 percent or more 70
narrowing of airways..................................
Partial obstruction of larynx with 25 percent to less 50
than 50 percent narrowing of airways..................
Partial obstruction of larynx with less than 25 percent 30
narrowing of airways..................................
Note: Or, evaluate as aphonia (DC 6230).
6232 Pharynx, injuries to:
Stricture or obstruction of pharynx or nasopharynx; 50
absence of soft palate secondary to trauma, chemical
burn, or granulomatous disease; or paralysis of soft
palate with swallowing difficulty (nasal
regurgitation) and speech impairment..................
6233 Rhinosinusitis, allergic or nonallergic (vasomotor)
related.
6234 Rhinosinusitis, infection related.
6235 Rhinosinusitis, autoimmune, granulomatous or other
causes:
While receiving systemic immunosuppressive treatment, 100
or for a period of six months after cessation of
treatment.............................................
Otherwise evaluate using the General Rating Formula for
CRS and RARS.
Note: Evaluate lethal midline granuloma (also referred
to as lymphomatoid granulomatosis or polymorphic
reticulosis) under neoplasm, malignant (DC 6238).
6236 Vocal cord paralysis:
Evaluate under laryngitis, chronic (DC 6228) or
aphonia, complete organic (DC 6230).
6237 Neoplasm, nasopharyngeal, and/or sinus, benign: 100
Rate on impairment of function.
6238 Neoplasm, nasopharyngeal, and/or sinus, malignant..... 100
Note: A rating of 100 percent shall continue beyond the
cessation of any surgery, radiation treatment,
antineoplastic chemotherapy, or other prescribed
therapeutic procedures. Six months after
discontinuance of such treatment, the appropriate
disability rating shall be determined by mandatory VA
examination. Any change in evaluation based upon that
or any subsequent examination shall be subject to the
provisions of Sec. 3.105(e) of this chapter. If
there has been no local recurrence or metastasis,
evaluate on residual impairment of function.
6239 Disease of the salivary glands and/or associated
ducts, other than neoplasm:
Xerostomia (dry mouth) with altered sensation of taste 20
and difficulty with lubrication and mastication of
food resulting in either weight loss (as defined in
Sec. 4.112 of this chapter) or an increase in dental
caries................................................
Xerostomia (dry mouth) with altered sensation of taste 10
and difficulty with lubrication and mastication of
food without weight loss or an increase in dental
caries; chronic inflammation of salivary gland with
pain and swelling on eating; or one or more salivary
calculi or salivary gland stricture...................
Xerostomia (dry mouth) without difficulty in 0
mastication of food or painless swelling of salivary
gland.................................................
Note: Evaluate facial nerve (cranial nerve VII)
impairment under diagnostic code 8207 (paralysis of
seventh (facial) cranial nerve), and any disfigurement
due to facial swelling under diagnostic code 7800
(disfigurement or scars of the head, face, or neck).
6240 Rhinitis, allergic or nonallergic (vasomotor):
[[Page 8490]]
With documented evidence of polyps..................... 30
Requires continuous therapy (e.g., inhaled 10
corticosteroids, oral or inhaled antihistamines)......
Note: If complicated by either chronic or recurrent
acute rhinosinusitis, evaluate instead under
rhinosinusitis, allergic or nonallergic (vasomotor)
related (DC 6233).
------------------------------------------------------------------------
\1\ Review for entitlement to special monthly compensation under Sec.
3.350 of this chapter.
(Authority: 38 U.S.C. 1155)
0
11. Amend Sec. 4.96 by:
0
a. Revising paragraph (a);
0
b. Removing paragraph (c);
0
c. Redesignating paragraph (d) as paragraph (c);
0
d. Revising newly redesignated paragraph (c); and
0
e. Adding new paragraph (d).
The revisions and additions read as follows:
Sec. 4.96 Special provisions regarding evaluation of respiratory
conditions.
(a) Rating coexisting respiratory conditions. Unless otherwise
directed in Sec. 4.97, do not combine ratings under that section.
Assign a single rating under the diagnostic code that reflects the
predominant disability, elevating it to the next higher evaluation when
warranted by the severity of the overall disability picture. When
permitted, combine coexisting conditions in accordance with Sec. 4.25.
* * * * *
(c) Special provisions regarding Diagnostic Codes 6600 through
6604, 6731, 6820, 6825 through 6833, 6840 through 6846, and 6848. (1)
Pulmonary Function Tests (PFTs) are required to evaluate these
conditions except when one of the following circumstances exists:
(i) When the results of a maximum exercise capacity test are of
record and are 20 milliliters per kilogram per minute (ml/kg/min) or
less. If a maximum exercise capacity test is not of record, evaluate
based on alternative criteria.
(ii) When there have been one or more episodes of acute respiratory
failure.
(iii) When outpatient oxygen therapy is required.
(2) When the PFTs are not consistent with clinical findings,
evaluate based on the PFTs unless the examiner states why they are not
a valid indication of respiratory functional impairment in a particular
case.
(3) When there is a disparity between the results of different PFTs
(FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital
Capacity), etc.), so that the level of evaluation would differ
depending on which test result is used, use the test result that the
examiner states most accurately reflects the level of disability.
(d) Respiratory conditions and comorbid cardiovascular conditions.
Absent instructions otherwise in individual diagnostic codes, if there
are comorbid respiratory and cardiovascular conditions that can be
evaluated by METs, only the disability from one body system may be
evaluated using METs, while the disability involving the other body
system must be evaluated by criteria other than METs.
0
12. In Sec. 4.97 amend the table by:
0
a. Removing the heading ``DISEASES OF THE NOSE AND THROAT'';
0
b. Removing entries for diagnostic codes 6502 through 6524;
0
c. Adding introductory text;
0
d. Adding entry for ``General Rating Formula for Respiratory
Conditions'';
0
e. Removing the heading ``DISEASE OF THE TRACHEA AND BRONCHI'' and
adding in its place ``INTRINSIC LUNG DISEASES'';
0
f. Adding the subheading ``Airway Disorders (Trachea, Bronchi)'' under
``INTRINSIC LUNG DISEASES'';
0
g. Revising entries for diagnostic codes 6600 through 6604;
0
h. Removing the heading ``DISEASES OF THE LUNGS AND PLEURA--
TUBERCULOSIS'' and adding in its place ``Tuberculous Lung Diseases'';
0
i. Revising entries for diagnostic codes 6704, 6724, 6730, and 6731;
0
j. Removing the heading ``NONTUBERCULOUS DISEASES'' and adding in its
place ``Vascular Lung Diseases'';
0
k. Revising entry for diagnostic code 6817;
0
l. Adding entry for diagnostic code 6849 under diagnostic code 6817;
0
m. Adding the subheading ``Lung Neoplasms'' above diagnostic code 6819;
0
n. Revising entries for diagnostic codes 6819 and 6820;
0
o. Removing the subheading ``Bacterial Infections of the Lung'' and
adding in its place ``Bacterial Lung Diseases'';
0
p. Adding entry for ``General Rating Formula for Bacterial Lung
Diseases'' above diagnostic code 6822;
0
q. Republishing entry for diagnostic code 6822;
0
r. Removing the subheading ``Interstitial Lung Disease'' and adding in
its place ``Parenchymal Lung Disease (Including Interstitium and
Alveolar Spaces)'';
0
s. Adding note above diagnostic code 6825;
0
t. Revising entry for diagnostic code 6825;
0
u. Republishing entry for diagnostic code 6833;
0
v. Adding entry for diagnostic code 6846 under diagnostic code 6833;
0
w. Removing entry for ``General Rating Formula for Interstitial Lung
Disease (diagnostic codes 6825 through 6833)'';
0
x. Removing the subheading ``Mycotic Lung Disease'' and adding in its
place ``Mycotic Lung Diseases'';
0
y. Adding entry for ``General Rating Formula for Mycotic Lung Disease''
above diagnostic code 6834;
0
z. Republishing entry for diagnostic code 6834;
0
aa. Removing entry for ``General Rating Formula for Mycotic Lung
Disease (diagnostic codes 6834 through 6839)'';
0
bb. Removing the subheading ``Restrictive Lung Disease'' and adding in
its place ``OTHER RESPIRATORY CONDITIONS'';
0
cc. Revising entries for diagnostic codes 6841 and 6842;
0
dd. Removing entry for ``General Rating Formula for Lung Diseases
(diagnostic codes 6840 through 6845)'';
0
ee. Removing entry for diagnostic code 6846 under diagnostic code 6845;
0
ff. Revising entry for diagnostic code 6847; and
0
gg. Adding entry for diagnostic code 6848.
The revisions and additions read as follows:
Sec. 4.97 Schedule of Ratings--Respiratory System.
[[Page 8491]]
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
Unless otherwise directed, evaluate diseases of the
Respiratory System under the General Rating Formula for
Respiratory Conditions.
General Rating Formula for Respiratory Conditions:
At least one of the following.......................... 100
Forced Vital Capacity (FVC) less than 50 percent of
predicted value; or
Forced Expiratory Volume in one second (FEV-1) less
than 45 percent of predicted value; or
Diffusion Capacity of the Lung for Carbon Monoxide
by the Single Breath Method (DLCO(SB)) less than
40 percent predicted; or
The ratio of FEV-1 to FVC (FEV-1/FVC) less than 40
percent; or
Maximum Oxygen Consumption measured in milliliters
per kilogram per minute (mL/Kg/min) (VO2 Max) less
than 10.5; or
Workload of 3 Metabolic Equivalents (METs) or less.
At least one of the following.......................... 60
FVC of 50 to 64 percent predicted; or
FEV-1 of 45 to 55 percent predicted; or
DLCO(SB) of 40 to 55 percent predicted; or
FEV-1/FVC of 40 to 55 percent; or
VO2 Max of 10.5 to 17.5; or
Workload of 3.1-5.0 METs.
At least one of the following.......................... 30
FVC of 65 to 74 percent predicted; or
FEV-1 of 56 to 70 percent predicted; or
DLCO(SB) of 56 to 65 percent predicted; or
FEV-1/FVC of 56 to 70 percent; or
VO2 Max of 17.6 to 24.5; or
Workload of 5.1-7.0 METs.
At least one of the following.......................... 10
FVC of 75 to 80 percent predicted; or
FEV-1 of 71 to 80 percent predicted; or
DLCO(SB) of 66 to 80 percent predicted; or
FEV-1/FVC of 71 to 80 percent.
Note (1): Base the rating on the criteria that reflects
the greatest impairment and, therefore, the greatest
disability percentage, unless otherwise directed by
the examiner (see Sec. 4.96(c)(3)).
Note (2): Do not combine a rating assigned from this
formula with other ratings under Sec. 4.97, except
for sleep apnea syndromes (DC 6847).
Note (3): Per Sec. 4.96(d), when METs are used to
evaluate a respiratory disability under Sec. 4.97,
do not use METs to evaluate a comorbid cardiovascular
disability under Sec. 4.104, and vice versa.
------------------------------------------------------------------------
INTRINSIC LUNG DISEASES
------------------------------------------------------------------------
Airway Disorders (Trachea, Bronchi)
------------------------------------------------------------------------
6600 Bronchitis, chronic.
6601 Bronchiectasis.
6602 Asthma, bronchial:
At least one of the following.......................... 100
FEV-1 less than 45 percent predicted; or
FEV-1/FVC less than 40 percent; or
More than one attack per week with episodes of
respiratory failure; or
Requires daily use of systemic (oral or parenteral)
high-dose corticosteroids or immuno-suppressive
medications.
At least one of the following.......................... 60
FEV-1 of 45 to 55 percent predicted; or
FEV-1/FVC of 40 to 55 percent; or
At least monthly visits to a physician for required
care of exacerbations; or
Intermittent (at least three per year) courses of
systemic (oral or parenteral) corticosteroids.
At least one of the following.......................... 30
FEV-1 of 56 to 70 percent predicted; or
FEV-1/FVC of 56 to 70 percent; or
Daily inhalational or oral bronchodilator therapy
or inhalational anti-inflammatory medication.
At least one of the following.......................... 10
FEV-1 of 71 to 80 percent predicted; or
FEV-1/FVC of 71 to 80 percent; or
less than daily inhalational or oral bronchodilator
therapy.
Note (1): In the absence of clinical findings of asthma
at the time of examination, a verified history of
asthmatic attacks must be of record.
Note (2): Do not combine a rating assigned under this
diagnostic code with other ratings under Sec. 4.97,
except for sleep apnea syndromes (DC 6847).
6603 Emphysema, pulmonary.
6604 Chronic obstructive pulmonary disease.
------------------------------------------------------------------------
Tuberculous Lung Diseases
------------------------------------------------------------------------
Ratings for Pulmonary Tuberculosis Entitled on August 19, 1968
[[Page 8492]]
* * * * * * *
6704 Tuberculosis, pulmonary, chronic, active, advancement 100
unspecified...............................................
General Rating Formula for Inactive Pulmonary
Tuberculosis:
For two years after date of inactivity, following 100
active tuberculosis, which was clinically
identified during service or subsequently.........
Thereafter for four years, or in any event, to six 50
years after date of inactivity....................
Thereafter, for 5 years, or to 11 years after date 30
of inactivity.....................................
Following far advanced lesions diagnosed at any 30
time while the disease process was active, minimum
Following moderately advanced lesions, provided 20
there is continued disability, emphysema, dyspnea
on exertion, impairment of health, etc............
Otherwise.......................................... 0
Note (1): The 100 percent rating under codes 6701
through 6724 is not subject to a requirement of
precedent hospital treatment. It will be reduced to 50
percent for failure to submit to examination or to
follow prescribed treatment upon report to that effect
from the medical authorities. When a veteran is placed
on the 100 percent rating for inactive tuberculosis,
the medical authorities will be appropriately notified
of the fact, and of the necessity to notify the
Veterans Service Center in the event of failure to
submit to examination or to follow treatment.
Note (2): The graduated 50 percent and 30 percent
ratings and the permanent 30 percent and 20 percent
ratings for inactive pulmonary tuberculosis are not to
be combined with ratings for other respiratory
disabilities. Following thoracoplasty, the rating will
be for removal of ribs combined with the rating for
collapsed lung. Resection of the ribs incident to
thoracoplasty will be evaluated as removal.
* * * * * * *
6724 Tuberculosis, pulmonary, chronic, inactive,
advancement unspecified.
* * * * * * *
6730 Tuberculosis, pulmonary, chronic, active.............. 100
Note: Active pulmonary tuberculosis will be considered
permanently and totally disabling for non-service-
connected pension purposes in the following
circumstances:
(a) Associated with active tuberculosis involving
other than the respiratory system.
(b) With severe associated symptoms or with
extensive cavity formation.
(c) Reactivated cases, generally.
(d) With advancement of lesions on successive
examinations or while under treatment.
(e) Without retrogression of lesions or other
evidence of material improvement at the end of 6
months hospitalization or without change of
diagnosis from ``active'' at the end of 12 months
hospitalization. Material improvement means
lessening or absence of clinical symptoms, and X-
ray findings of a stationary or retrogressive
lesion.
6731 Tuberculosis, primary, chronic, inactive:
Depending on the specific findings, evaluate
respiratory residuals using General Rating Formula for
Respiratory Conditions.
Note (1): Evaluate thoracoplasty as removal of ribs
under DC 5297.
Note (2): Request a mandatory examination immediately
following notification that active tuberculosis
evaluated under DC 6730 has become inactive. Implement
any change in evaluation under the provisions of Sec.
3.105(e).
* * * * * * *
------------------------------------------------------------------------
Vascular Lung Diseases
------------------------------------------------------------------------
6817 Pulmonary thromboembolic disease:
Chronic pulmonary thromboembolism with evidence of 100
either pulmonary hypertension or right ventricular
hypertrophy...........................................
At least one of the following.......................... 60
Chronic pulmonary thromboembolism requiring
anticoagulant therapy; or
Following inferior vena cava surgery without
evidence of pulmonary hypertension or right
ventricular dysfunction.
Symptomatic, following resolution of acute pulmonary 30
embolism..............................................
Asymptomatic, following resolution of pulmonary 0
thromboembolism.......................................
Note (1): Evaluate other residuals following pulmonary
embolism under the most appropriate diagnostic code,
such as chronic bronchitis (DC 6600) or chronic
pleural effusion or fibrosis (DC 6844), but do not
combine that evaluation with any of the above
evaluations.
Note (2): Do not assign separate evaluations for
pulmonary thromboembolic disease with right
ventricular hypertrophy and a comorbid cardiovascular
condition listed under Sec. 4.104, diagnostic codes
(DCs) 7000-7020. Assign a single rating under this
diagnostic code or under DCs 7000-7020, whichever
reflects the predominant disability.
Note (3): Do not combine a rating assigned under this
diagnostic code with other ratings under Sec. 4.97,
except for sleep apnea syndromes (DC 6847).
6849 Pulmonary hypertension:
Echocardiogram with severe right ventricular (RV)
enlargement (greater than 4 cm), and at least one of
the following:
Maximum Oxygen Consumption measured in milliliters
per kilogram per minute (mL/Kg/min) (VO2 Max) less
than 15; or
Workload of 3 Metabolic Equivalents (METs) or less. 100
Echocardiogram with severe RV enlargement (greater than
4 cm), and at least one of the following:
Brain natriuretic peptide (BNP) greater than 500;
VO2 Max of 15 to 20; or
Workload of 3.1 to 5.0 METs........................ 60
Echocardiogram with moderate RV enlargement (3 to 4
cm), and at least one of the following:
BNP of 100 to 500; or
Workload of 5.1 to 7.0 METs........................ 30
One of the following:
BNP less than 100; or
VO2 Max greater than 20............................ 0
[[Page 8493]]
Note (1): Acute pulmonary hypertension is not a
disability for rating purposes.
Note (2): Do not assign separate evaluations for
pulmonary hypertension and a comorbid cardiovascular
condition listed under Sec. 4.104, diagnostic codes
(DCs) 7000-7020. Assign a single rating under this
diagnostic code or under DCs 7000-7020, whichever
reflects the predominant disability.
Note (3): Do not combine a rating assigned under this
diagnostic code with other ratings under Sec. 4.97,
except for sleep apnea syndromes (DC 6847).
------------------------------------------------------------------------
Lung Neoplasms
------------------------------------------------------------------------
6819 Neoplasms, malignant, any specified part of 100
respiratory system exclusive of skin growths..............
Note: A rating of 100 percent shall continue beyond the
cessation of any surgical, X-ray, antineoplastic
chemotherapy, or other prescribed therapeutic
procedure. Six months after discontinuance of such
treatment, the appropriate disability rating shall be
determined by mandatory VA examination. Any change in
evaluation based upon that or any subsequent
examination shall be subject to the provisions of Sec.
3.105(e) of this chapter. If there has been no local
recurrence or metastasis, evaluate on residuals by
using the General Rating Formula for Respiratory
Conditions.
6820 Neoplasms, benign, any specified part of respiratory
system.
------------------------------------------------------------------------
Bacterial Lung Diseases
------------------------------------------------------------------------
General Rating Formula for Bacterial Lung Diseases:
Active infection with systemic symptoms such as fever, 100
night sweats, weight loss, or hemoptysis..............
Depending on the specific findings, evaluate the most
severe residual analogously.
Note: Do not combine a rating assigned under this
formula with other ratings under Sec. 4.97, except
for sleep apnea syndromes (DC 6847).
6822 Actinomycosis.
* * * * * * *
------------------------------------------------------------------------
Parenchymal Lung Disease (Including Interstitium and Alveolar Spaces)
------------------------------------------------------------------------
Note (1): Evaluate using the General Rating Formula for
Respiratory Conditions.
Note (2): For DCs 6825 through 6833 and DC 6846, add 10
percent to any rating if a physician prescribes either of
the following: Oral prednisone greater than 20mg daily or
daily second-line (i.e., non-steroidal) immunosuppressive
medication.
6825 Diffuse interstitial fibrosis (interstitial
pneumonitis, fibrosing alveolitis, or idiopathic
fibrosis).
* * * * * * *
6833 Asbestosis.
6846 Sarcoidosis.
------------------------------------------------------------------------
Mycotic Lung Diseases
------------------------------------------------------------------------
General Rating Formula for Mycotic Lung Diseases:
Chronic pulmonary mycosis with persistent fever, weight 100
loss, night sweats, or massive hemoptysis.............
Chronic pulmonary mycosis requiring suppressive therapy 50
with no more than minimal symptoms such as occasional
minor hemoptysis or productive cough..................
Chronic pulmonary mycosis with minimal symptoms such as 30
occasional minor hemoptysis or productive cough.......
Healed and inactive mycotic lesions, asymptomatic...... 0
Note (1): Coccidioidomycosis has an incubation period
up to 21 days, and the disseminated phase is
ordinarily manifest within 6 months of the primary
phase. However, there are instances of dissemination
delayed for years after the initial infection, which
may have been unrecognized. Accordingly, when
considering service connection, in the absence of
record or other evidence of the disease in service,
service in southwestern United States, where the
disease is endemic, and absence of prolonged residence
in this locality before or after service will be the
deciding factor.
Note (2): Do not combine a rating assigned under this
formula with other ratings under Sec. 4.97, except
for sleep apnea syndromes (DC 6847).
6834 Histoplasmosis of lung.
------------------------------------------------------------------------
OTHER RESPIRATORY CONDITIONS
------------------------------------------------------------------------
* * * * * * *
6841 Respiratory insufficiency due to spinal cord injury.
6842 Pulmonary disease secondary to kyphoscoliosis, pectus
excavatum, or pectus carinatum.
* * * * * * *
6847 Sleep apnea syndromes (obstructive, central, or
mixed):
Treatment ineffective (as determined by sleep study) or 100
unable to use treatment due to comorbid conditions;
and with end-organ damage.............................
Treatment ineffective (as determined by sleep study) or 50
unable to use treatment due to comorbid conditions;
and without end-organ damage..........................
Incomplete relief (as determined by sleep study) with 10
treatment.............................................
Asymptomatic with or without treatment................. 0
Note: Qualifying comorbidities are conditions that, in
the opinion of a qualified medical provider, directly
impede or prevent the habitual use of a recognized
form of treatment shown by sleep study to be effective
in the affected veteran's case (e.g., contact
dermatitis where the mask or interface touches the
face or nares, Parkinson's disease, missing limbs,
facial disfigurement, or skull fracture).
[[Page 8494]]
6848 Lung transplantation:
Following transplant surgery........................... 100
Thereafter, evaluate residuals under the General Rating 30
Formula for Respiratory Conditions, minimum rating....
Note (1): A rating of 100 percent shall be assigned as
of the date of hospital admission for lung transplant.
One year following discharge, the appropriate
disability rating shall be determined by mandatory VA
examination. Any change in evaluation based upon that
or any subsequent examination shall be subject to the
provisions of Sec. 3.105(e) of this chapter.
Note (2): Do not combine a rating assigned under this
diagnostic code with other ratings under Sec. 4.97,
except for sleep apnea syndromes (DC 6847).
------------------------------------------------------------------------
0
13. Amend Sec. 4.104 by:
0
a. Removing Note (1);
0
b. Redesignating Note (2) as Note (1); and
0
c. Redesignating Note (3) as Note (2).
The revisions read as follows:
Sec. 4.104 Schedule of ratings--cardiovascular system.
* * * * *
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
Note (1): One MET (metabolic equivalent) is the energy cost
of standing quietly at rest and represents an oxygen
uptake of 3.5 milliliters per kilogram of body weight per
minute. When the level of METs at which breathlessness,
fatigue, angina, dizziness, or syncope develops is
required for evaluation, and a laboratory determination of
METs by exercise testing cannot be done for medical
reasons, a medical examiner may estimate the level of
activity (expressed in METs and supported by specific
examples, such as slow stair climbing or shoveling snow)
that results in those symptoms.
Note (2): For this general formula, heart failure symptoms
include, but are not limited to, breathlessness, fatigue,
angina, dizziness, arrhythmia, palpitations, or syncope.
* * * * * * *
------------------------------------------------------------------------
0
14. Amend appendix A to part 4 by:
0
a. Adding entry for Sec. 4.85;
0
b. Revising entries for Sec. Sec. 4.87 and 4.87a;
0
c. Revising entries for diagnostic codes 6502 through 6516, 6518
through 6604, 6731, and 6817, 6819, 6820, and 6822 through 6847; and
0
d. Adding entries for diagnostic codes 6848 and 6849 in numerical
order.
The revisions and additions read as follows:
Appendix A to Part 4-Table of Amendments and Effective Dates Since 1946
------------------------------------------------------------------------
Diagnostic
Sec. code No.
------------------------------------------------------------------------
* * * * * * *
4.85............. 6100 Criterion [effective date of final
rule].
4.87............. ........... Tables VI and VII replaced by new Tables
VI, VIA, and VII December 18, 1987.
6200 Revised and redesignated Sec. 4.87
June 10, 1999; criterion [effective
date of final rule].
6201 Revised and redesignated Sec. 4.87
June 10, 1999; criterion [effective
date of final rule].
6202 Revised and redesignated Sec. 4.87
June 10, 1999; title [effective date of
final rule].
6204 Revised and redesignated Sec. 4.87
June 10, 1999; criterion [effective
date of final rule].
6205 Revised and redesignated Sec. 4.87
June 10, 1999; criterion [effective
date of final rule].
6207-6211 Revised and redesignated Sec. 4.87
June 10, 1999.
6220-6240 Added [effective date of final rule].
6260 Revised and redesignated Sec. 4.87
June 10, 1999; Removed [effective date
of final rule].
4.87a............ 6275-6276 Moved from Sec. 4.87b June 10, 1999.
* * * * * * *
4.97............. 6502-6514 Criterion October 7, 1996; Revised and
moved to Sec. 4.87 [effective date of
final rule].
6515 Criterion March 11, 1969; Revised and
moved to Sec. 4.87 [effective date of
final rule].
6516 Criterion October 7, 1996; Revised and
moved to Sec. 4.87 [effective date of
final rule].
6517 Removed October 7, 1996.
6518-6520 Criterion October 7, 1996; Revised and
moved to Sec. 4.87 [effective date of
final rule].
6521-6524 Added October 7, 1996; Revised and moved
to Sec. 4.87 [effective date of final
rule].
6600 Evaluation September 9, 1975; criterion
October 7, 1996; criterion [effective
date of final rule].
6601 Criterion October 7, 1996; criterion
[effective date of final rule].
6602 Criterion September 9, 1975; criterion
October 7, 1996; criterion [effective
date of final rule].
6603 Added September 9, 1975; criterion
October 7, 1996; criterion [effective
date of final rule].
6604 Added October 7, 1996; criterion
[effective date of final rule].
* * * * * * *
6731 Evaluation September 22, 1978; criterion
October 7, 1996; criterion [effective
date of final rule].
* * * * * * *
6817 Evaluation October 7, 1996; title,
criterion [effective date of final
rule].
[[Page 8495]]
* * * * * * *
6819 Criterion March 10, 1976; criterion
October 7, 1996; criterion [effective
date of final rule].
6820 Criterion [effective date of final
rule].
6821 August 23, 1948; Removed October 7,
1996.
6822-6824 Added October 7, 1996; criterion
[effective date of final rule].
6825 Added October 7, 1996; title, criterion
[effective date of final rule].
6826-6840 Added October 7, 1996; criterion
[effective date of final rule].
6841-6842 Added October 7, 1996; title, criterion
[effective date of final rule].
6843-6847 Added October 7, 1996; criterion
[effective date of final rule].
6848 Added [effective date of final rule].
6849 Added [effective date of final rule].
* * * * * * *
------------------------------------------------------------------------
0
15. Amend appendix B to part 4 by:
0
a. Removing the heading ``THE EAR'' and adding in its place ``EAR,
NOSE, and THROAT'';
0
b. Adding entry for diagnostic code 6100;
0
c. Revising diagnostic code 6202;
0
d. Adding diagnostic codes 6220 through 6240;
0
e. Removing diagnostic code 6260;
0
f. Removing the subheading ``Nose and Throat'';
0
g. Removing diagnostic codes 6502 through 6524;
0
h. Removing the subheading ``Trachea and Bronchi'' and adding in its
place ``Airway Disorders (Trachea, Bronchi)'';
0
i. Removing the subheading ``Lungs and Pleura Tuberculosis'' and adding
in its place ``Tuberculosis Lung Disease'';
0
j. Removing the subheading ``Nontuberculous Diseases'' and adding in
its place ``Vascular Lung Disease'';
0
k. Revising diagnostic code 6817;
0
l. Adding entry for diagnostic code 6849 under diagnostic code 6817;
0
m. Adding the subheading ``Lung Neoplasms'' above diagnostic code 6819;
0
n. Republishing diagnostic code 6819;
0
o. Removing the subheading ``Bacterial Infections of the Lung'' and
adding in its place ``Bacterial Lung Diseases'';
0
p. Removing the subheading ``Interstitial Lung Disease'' and adding in
its place ``Parenchymal Lung Disease (Including Interstitium and
Alveolar Spaces)'';
0
q. Revising diagnostic codes 6825, 6829, and 6830;
0
r. Removing the subheading ``Mycotic Lung Disease'' and adding in its
place ``Mycotic Lung Diseases'';
0
s. Removing the subheading ``Restrictive Lung Disease'' and adding in
its place ``Other Respiratory Conditions'';
0
t. Revising diagnostic codes 6841 and 6842; and
0
u. Adding diagnostic code 6848.
The revisions and additions read as follows:
Appendix B to Part 4--Numerical Index of Disabilities
------------------------------------------------------------------------
Diagnostic code No.
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
EAR, NOSE, and THROAT
------------------------------------------------------------------------
6100................... Hearing loss.
* * * * * * *
6202................... Otosclerosis, stapedectomy, stapedotomy,
residuals of.
* * * * * * *
6220................... Septum, nasal, deviation of.
6221................... Nose, loss of part of, or scars.
6222................... Rhinosinusitis, pansinusitis, chronic;
infectious.
6223................... Rhinosinusitis, ethmoid, chronic; infectious.
6224................... Rhinosinusitis, frontal, chronic; infectious.
6225................... Rhinosinusitis, maxillary, chronic; infectious.
6226................... Rhinosinusitis, sphenoid, chronic; infectious.
6227................... Laryngitis, tuberculous, active or inactive.
6228................... Laryngitis, chronic.
6229................... Laryngectomy, total.
6230................... Aphonia, complete organic.
6231................... Larynx, stenosis of, including residuals of
laryngeal trauma (unilateral or bilateral).
6232................... Pharynx, injuries to.
6233................... Rhinosinusitis, allergic or nonallergic
(vasomotor) related.
6234................... Rhinosinusitis, infection related.
6235................... Rhinosinusitis, autoimmune, granulomatous, or
other causes.
6236................... Vocal cord paralysis.
[[Page 8496]]
6237................... Neoplasm, nasopharyngeal and/or sinus, benign.
6238................... Neoplasm, nasopharyngeal, and/or sinus,
malignant.
6239................... Salivary gland and/or associated ducts disease
other than neoplasm.
6240................... Rhinitis, allergic or nonallergic (vasomotor).
* * * * * * *
------------------------------------------------------------------------
THE RESPIRATORY SYSTEM
------------------------------------------------------------------------
Airway Disorders (Trachea, Bronchi)
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
Tuberculous Lung Diseases
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
Vascular Lung Diseases
------------------------------------------------------------------------
6817................... Pulmonary thromboembolic disease.
6849................... Pulmonary hypertension.
------------------------------------------------------------------------
Lung Neoplasms
------------------------------------------------------------------------
6819................... Neoplasms, malignant.
* * * * * * *
------------------------------------------------------------------------
Bacterial Lung Diseases
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
Parenchymal Lung Disease (Including Interstitium and Alveolar Spaces)
------------------------------------------------------------------------
6825................... Diffuse interstitial fibrosis.
* * * * * * *
6829................... Drug-induced pulmonary pneumonitis and
fibrosis.
6830................... Radiation-induced pulmonary pneumonitis and
fibrosis.
* * * * * * *
------------------------------------------------------------------------
Mycotic Lung Diseases
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
Other Respiratory Conditions
------------------------------------------------------------------------
* * * * * * *
6841................... Respiratory insufficiency due to spinal cord
injury.
6842................... Pulmonary disease secondary to kyphoscoliosis,
pectus excavatum, pectus carinatum.
* * * * * * *
6848................... Lung transplantation.
* * * * * * *
------------------------------------------------------------------------
0
16. Amend appendix C to part 4 by:
0
a. Revising entries for ``Aphonia, organic'' and ``Injury: Pharynx'';
0
b. Removing entry for ``Injury: Sacroiliac: Spinal cord'' and
``Kyphoscoliosis, pectus excavatum/carinatum'';
0
c. Adding entry for ``Hearing loss'';
0
d. Revising entries for ``Laryngectomy'', ``Laryngitis:'', ``Larynx,
stenosis of'', and ``Loss of: Nose, part of, or scars'';
0
e. Adding entries for ``Lung, transplantation of'', ``Neoplasms:
Benign: Nasopharyngeal'', and ``Neoplasms: Malignant: Nasopharyngeal'';
0
f. Revising entry for ``Otosclerosis'';
0
g. Adding entries for ``Pulmonary: Disease secondary to kyphoscoliosis,
pectus excavatum, pectus carinatum'' and ``Pulmonary: Hypertension'';
[[Page 8497]]
0
h. Removing entry for ``Pulmonary: Vascular disease'' and adding in its
place ``Pulmonary: Thromboembolic disease'';
0
i. Adding entry for ``Respiratory insufficiency due to spinal cord
injury'';
0
j. Revising entry for ``Rhinitis'';
0
k. Adding entries for ``Rhinosinusitis'', ``Salivary gland and/or
associated ducts disease other than neoplasm'', and ``Septum, nasal,
deviation of'';
0
l. Removing entry for ``Sinusitis'';
0
m. Revising entry for ``Sleep Apnea Syndrome'';
0
n. Removing entry for ``Tinnitus, recurrent''; and
0
o. Adding entry for ``Vocal cord paralysis''.
The revisions and additions read as follows:
Appendix C to Part 4--Alphabetical Index of Disabilities
------------------------------------------------------------------------
Diagnostic
code No.
------------------------------------------------------------------------
* * * * * * *
Aphonia, organic........................................... 6230
* * * * * * *
Pharynx.................................................... 6232
* * * * * * *
Hearing loss............................................... 6100
* * * * * * *
Laryngectomy............................................... 6229
Laryngitis, chronic........................................ 6228
Laryngitis, tuberculosis................................... 6227
Larynx, stenosis of........................................ 6231
* * * * * * *
Loss of:
* * * * * * *
Nose, part of, or scars................................ 6221
* * * * * * *
Lung, transplantation of................................... 6848
* * * * * * *
Neoplasms:
Benign:
* * * * * * *
Nasopharyngeal..................................... 6237
* * * * * * *
Malignant:
Nasopharyngeal..................................... 6328
* * * * * * *
Otosclerosis, stapedectomy, stapedotomy.................... 6202
* * * * * * *
Pulmonary: ...........
Disease secondary to kyphoscoliosis, pectus excavatum, 6842
pectus carinatum......................................
Hypertension........................................... 6849
Thromboembolic disease................................. 6817
* * * * * * *
Respiratory insufficiency due to spinal cord injury........ 6841
* * * * * * *
Rhinitis, allergic or nonallergic (vasomotor).............. 6240
Rhinosinusitis:
Allergic or nonallergic (vasomotor) related............ 6223
Autoimmune, granulomatous or other causes.............. 6235
Ethmoid................................................ 6233
Frontal................................................ 6224
Infection related...................................... 6234
Maxillary.............................................. 6225
Pansinusitis........................................... 6222
Sphenoid............................................... 6226
* * * * * * *
Salivary gland and/or associated ducts disease other than 6239
neoplasm..................................................
[[Page 8498]]
* * * * * * *
Septum, nasal, deviation of................................ 6220
* * * * * * *
Sleep apnea syndromes...................................... 6847
* * * * * * *
Vocal cord paralysis....................................... 6236
* * * * * * *
------------------------------------------------------------------------
[FR Doc. 2022-02049 Filed 2-14-22; 8:45 am]
BILLING CODE 8320-01-P