Schedule for Rating Disabilities; Hemic and Lymphatic Systems

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AF02

Schedule for Rating Disabilities; Hemic and Lymphatic Systems

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs' (VA)

Schedule for Rating Disabilities of the Hemic and Lymphatic Systems.

The effect of this action is to update the hemic and lymphatic portion

of the rating schedule to ensure that it uses current medical

terminology and unambiguous criteria, and that it reflects medical

advances that have occurred since the last review.

DATES: This amendment is effective October 23, 1995.

FOR FURTHER INFORMATION CONTACT:

Don England, Chief, Regulations Staff, Compensation and Pension

Service, Veterans Benefits Administration, Department of Veterans

Affairs, 1800 G Street, Washington, DC, 20420, (202) 273-7210.

SUPPLEMENTARY INFORMATION: In the Federal Register of April 30, 1993,

(58 FR 26080-83) VA published a proposal to amend the Schedule for

Rating Disabilities of the hemic and lymphatic systems. Interested

persons were invited to submit written comments, suggestions or

objections on or before June 1, 1993. We received comments from the

Veterans of Foreign Wars, the Disabled American Veterans, the Paralyzed

Veterans of America and one comment from a concerned individual.

We proposed to reduce the evaluation for splenectomy, diagnostic

code 7706, from 30 percent to 10 percent. Several commenters felt, for

various reasons, that the evaluation for splenectomy should be more

than 10 percent.

One commenter agreed that antibiotics may compensate for any

increased susceptibility to infection, but was not persuaded that

medical treatment is so effective that disabling consequences of

splenectomy are nearly eliminated. He maintained that asplenic patients

require vigilant medical intervention to ward off infections. Another

commenter suggested that after splenectomy, patients must carefully

avoid activities that may result in trauma and avoid exposure to

infection, and that these environmental restrictions substantially

limit the range of vocational possibilities, resulting in industrial

impairment greater than the 10 percent proposed for this disability. A

third commenter stated that since he has undergone a splenectomy,

employers have turned him down due to high risk and that his life

insurance is more expensive.

On reconsideration, we have determined that an evaluation of 20

percent is warranted instead of 10 percent because of the many

functions that the spleen performs in the areas of immune response,

filtration of the blood, iron reutilization, blood volume regulation

and others, and that splenectomy increases susceptibility to certain

infections, such as those caused by encapsulated pneumococcus bacteria.

This increased susceptibility requires that splenectomy patients

restrict their activities, resulting in moderate industrial impairment,

which we feel is consistent with the 20 percent level of disability.

This level of disability is assigned throughout the rating schedule for

``moderate'' disability, for example, under the diagnostic codes for

liver abscess (7313), pellagra (6315), resection of large intestine

(7329) and erythromelalgia (7119).

One commenter stated that asplenia should be included in the

evaluation criteria for sickle cell anemia. We do not agree. If removal

of the spleen is necessary in the treatment of sickle cell anemia, the

splenectomy will be evaluated separately under diagnostic code 7706,

and combined.

One commenter assumed that complications of splenectomy such as

anemia would be rated on the symptomatology demonstrated. He is correct

and, for the sake of clarity, we have added a note instructing the

rater to separately evaluate complications if they become manifest to a

compensable degree.

One commenter felt that the 30 percent evaluation for splenectomy

should be ``grandfathered'', and in fact it is. In section 103(a) of

the Veterans' Benefits Programs Improvement Act of 1991 (Pub. L. 102-

86) Congress modified 38 U.S.C. 1155 to provide that a readjustment to

the rating schedule will not result in a reduction of any disability

evaluation in effect on the date of the readjustment unless that

disability has actually improved. Given the permanent nature of a

splenectomy, a 30 percent evaluation assigned under the prior rating

schedule will be protected. The effect of this change is, therefore,

prospective only.

One commenter felt that VA should contact all veterans who would be

affected by the change in the evaluation of splenectomy, rather than

requiring them to read the Federal Register.

Publication in the Federal Register is the legal means for any

federal agency to notify the public of changes to regulations.

Furthermore, since this change is prospective, taking the additional

step of contacting asplenic veterans who are currently receiving

benefits would serve no purpose since they will not be affected by this

change in the regulation.

One commenter believed that there should be a note following the

evaluation formula for anemia, diagnostic code 7700, instructing the

rater to evaluate chronic residuals of the disease separately.

We agree and have added a note following the rating criteria for

diagnostic code 7700, anemias, to instruct the rater to evaluate the

complications of pernicious anemia, such as dementia or peripheral

neuropathy, separately. These complications occur often enough that

this instruction is warranted to ensure consistent evaluations.

Furthermore, the note is consistent with instructions for other

conditions throughout the schedule, such as lupus erythematosus,

(diagnostic code 6350), leprosy (Hansen's Disease), (6302), and

rheumatoid arthritis, (5002), which instruct the rater to evaluate

residuals separately.

The proposed levels of evaluations for anemia, diagnostic code

7700, were based solely on hemoglobin levels. One commenter noted that

the key determination in evaluating the degree of disability is not the

laboratory value, but the primary diagnosis and compensatory level of

the cardiovascular system. He felt, therefore, that the purely

objective criteria of hemoglobin levels are inadequate for rating

anemia unless clinical findings are also considered.

The normal level of hemoglobin differs by sex, with men having a

higher level, on the average, than women. Individuals also vary in the

possible compensatory mechanisms, such as tachycardia, brought to bear

when anemia develops. Along with the level of hemoglobin, the speed of

onset of the anemia helps determine the symptoms. We agree, therefore,

that levels of hemoglobin in combination with clinical findings will

allow a better

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assessment of disability than either alone. We have revised the

criteria to include clinical findings such as a weakness, easy

fatigability, headaches, lightheadedness, or shortness of breath on

mild exertion. We have also added a 10 percent evaluation because there

are patients with a hemoglobin level of 10gm/100ml or less who also

have symptoms such as weakness, easy fatigability or headaches. Those

with a hemoglobin level of 10gm/100ml or less who are asymptomatic will

be assigned a zero percent evaluation. This provide a clear separation

between the requirements for the 10% and 0% levels since they require

the same hemoglobin levels.

The proposed evaluation formulas for agranulocytosis, diagnostic

code 7702, and aplastic anemia, diagnostic code 7716, provided for 100,

50 and zero percent evaluations. One commenter suggested that there

should be a 60 percent evaluation level.

We have reviewed the proposed evaluation criteria for

agranulocytosis (diagnostic code 7702) and apastic anemia (diagnostic

code 7716) and agree that a wider range of evaluation levels is

warranted because of the range of possible manifestations of the

conditions. We have, therefore, redesignated the evaluations proposed

as 50 percent disabling for both of these disabilities as 60 percent

disabling, and added 30 percent and 10 percent evaluation levels. The

30 percent levels are based on the number of transfusions required or

infections that occur, and the 10 percent levels are based on the need

for continuous medication for control. We have removed the 0 percent

evaluation level because a noncompensable evaluation can always be

assigned under Sec. 4.31 of this section whenever the residuals

required for a compensable evaluation are not shown. Retaining the 0

percent evaluation level would be redundant. These changes provide a

realistic range of evaluations and clear guidelines for assigning those

evaluations.

The proposed regulation provided an indefinite total evaluation for

aplastic anemia, diagnostic code 7716, following bone marrow

transplant, with mandatory VA examination six months following hospital

discharge, with any change based on that examination subject to the

provisions of Sec. 3.105(e). This is consistent with other diseases of

this type, such as malignancies, leukemia and anemia.

One commenter stated that the post-hospital stabilization period

for aplastic anemia, diagnostic code 7716, should be one year, not six

months. We do not concur. A person who has required hospitalization for

aplastic anemia would not be discharged unless stable, and it is

reasonable to examine the patient six months thereafter to verify that

the condition has indeed stabilized. The purpose of the VA examination

six months after hospital discharge is to gather medical information

regarding the actual level of disability. Therefore, there would be no

possibility of an immediate reduction. Should the examination

demonstrate that the condition remains totally disabling, the

evaluation will not be changed.

The proposed evaluation formula for leukemia, diagnostic code 7703,

includes instructions to otherwise rate as anemia (code 7700) or

aplastic anemia (code 7716), whichever would result in the greater

benefit, and a note instructing the rater to continue the 100 percent

evaluation indefinitely following the cessation of surgical, X-ray,

antineoplastic chemotherapy or other therapeutic procedures, with a

mandatory BA examination six months following hospital discharge.

One commenter stated that evaluations less than 100 percent for

leukemia should not be based on diagnostic codes 7700 or 7716.

We do not agree. Using the evaluation criteria from other codes is

common in the rating schedule and this is consistent with that

practice. The symptoms and treatments in the criteria for anemia and

aplastic anemia are the same as those for leukemia and the percentage

levels reflect the amount of disability.

One commenter pointed out an inconsistency between the proposed

criteria for a 100 percent evaluation and the NOTE: the NOTE

establishes the length of time that a 100 percent evaluation will

continue after surgery or the termination of radiation, chemotherapy or

other therapeutic procedure, whereas the criteria for a 100 percent

evaluation require ``intensive treatment'' such as periodic irradiation

or transfusion. The language in the evaluation criteria was retained

from the 1945 rating schedule. Since ``intensive treatment'' might be

construed as being more restrictive than the language of the NOTE--an

effect we did not intend--we have revised that language to indicate

that a 100 percent evaluation will be assigned while the disease is

active or during a treatment phase. That language not only eliminates

the perceived disparity between the evaluation criteria and the Note

under diagnostic code 7703, it is also consistent with the language in

the evaluation criteria for Hodgkin's disease (diagnostic code 7709)

and non-Hodgkin's lymphoma (7715).

We have reworded the NOTE following code 7703, leukemia, for

clarity. No substantive change is intended.

One commenter stated that polycythemia vera, code 7704, warrants a

higher evaluation than 40 percent if myelosuppressive therapy is

necessary.

Polycythemia vera is a readily managed disorder in most patients

that can remain asymptomatic for long periods. Although inadequate

management of the red cell mass can result in both thrombotic and

hemorrhagic complications, control of blood volume and viscosity with

the use of phlebotomy, supplemented when indicated with the use of

myelosuppression, can ensure most patients with polycythemia vera a

prolonged period of relatively symptom-free survival. (Cecil, Textbook

of Medicine, 19th edition, 1992, pages 925-29.) On the other hand,

certain myelosuppressants, such as P32 and chlorambucil, can have

severe side effects and possibly lead to the development of leukemia in

polycythemia patients. On the basis of this comment, we have revised

the evaluation criteria for polycythemia by adding a 100 percent

evaluation during periods of myelosuppressive therapy and for three

months after completion of the therapy. Further, we have revised the

proposed criteria for the 40 percent evaluation, which will now be

assigned when the condition is controlled by phlebotomy, and added a 10

percent evaluation. As a result, a total evaluation will be assigned

when the disease is active and the patient is being treated with

myelosuppressants, a 40 percent evaluation will be assigned when the

disease is controlled with phlebotomy, and a 10 percent evaluation will

be assigned when the condition is stabilized with or without

medication. We have removed the 0 percent level since a noncompensable

evaluation can be assigned under Sec. 4.31 of this section at any time

when required residuals are not shown. Retaining the 0 percent

evaluation level would be redundant. In our judgment, these changes

will provide evaluations which accurately reflect the levels of this

disability.

The same commenter suggested that the frequency of phlebotomies

should be evaluated the same as the frequency of blood transfusions for

aplastic anemia (diagnostic code 7716).

Phlebotomy, the removal of blood, is a different procedure than

transfusion, the injection of blood. Different risks are involved and

the amount of time before symptoms are resolved is dramatically

different. Phlebotomy provides rapid

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remission of symptoms. Transfusions, on the other hand, may have to be

repeated several times before the desired results are attained, and

even then it may be days or weeks before symptoms completely disappear.

For these reasons, we do not believe that phlebotomy warrants an

evaluation equivalent to that assigned based on transfusions.

One commenter noted that hypertension and gout are common

complications of polycythemia vera and suggested that in the note

following the evaluation formula they be mentioned along with stroke

and thrombotic disease as complications to be rated separately.

We agree and have included these additional conditions in the note

following diagnostic code 7704, polycythemia vera.

One commenter, noting that the criteria for non-total ratings for

thrombocytopenia under diagnostic code 7705 specify that there be no

bleeding, suggested that the 100 percent evaluation be assigned during

periods of active bleeding.

We agree and have revised the criteria for the 100 percent

evaluation to require that there be active bleeding. When a patient

with thrombocytopenia is actively bleeding, he or she would be under

close medical supervision, unable to work and totally disabled.

Requiring that there be active bleeding for the 100 percent evaluation

level clearly separates the total evaluation from lower evaluations,

which specifically require no bleeding.

One commenter suggested that there should be a total rating

assigned for thrombocytopenia during an appropriate stabilization and

observation period, with an examination to follow.

We do not concur. The periods of thrombocytopenic bleeding are

relatively short, but require aggressive medical management. If the

veteran requires prolonged hospitalization (over 21 days), a total

evaluation would be assigned under the provisions of Sec. 4.29. If

medically indicated, a period of convalescence would be assigned under

the provisions of Sec. 4.30. Since an exacerbation of this severity is

closely followed by a medical professional, records of observation and

treatment which are normally available are adequate to evaluate any

progression of the disease. If they are not, an examination would be

requested.

One commenter stated that the convalescence periods for Hodgkin's

disease, diagnostic code 7709, and non-Hodgkin's lymphoma, diagnostic

code 7715, should not be reduced to six months.

The commenter appears to have misinterpreted the proposed rule to

mean that a convalescent evaluation will be terminated six months after

treatment has ceased. However, under the proposed change there cannot

be a reduction at six months because the process of re-evaluation does

not begin until that time. First, there must be a VA examination six

months after completion of treatment. Then, if the results of that or

any subsequent examination warrant a reduction in evaluation, the

reduction will be implemented under the provisions of 38 CFR 3.105(e),

which requires 60 days notice before VA reduces an evaluation and an

additional 60 days notice before the reduced evaluation takes effect.

The revision not only provides for a current examination to assure that

all residuals are noted, but also offers the veteran more

contemporaneous notice of any proposed action and expands the veteran's

opportunity to present evidence shown that the proposed action should

not be taken. In our judgment this method will better ensure that

actual side-effects and recuperation times are taken into account

because they will be noted on the required VA exam.

One commenter stated that the provisions for an examination six

months after cessation of treatment as in Hodgkin's and non-Hodgkin's

lymphoma should be applied under malignant neoplasms of the

genitourinary system (code 7528) and the gynecological system (code

7627). The revisions of these systems have been made since this comment

was received and the rating procedure of evaluating malignancies of

these systems based on an examination six months following cessation of

treatment was implemented.

We have made a number of editorial changes, primarily of syntax and

punctuation, throughout the final rule. These changes are intended to

clarify the rating criteria and represent no substantive amendment.

The Secretary hereby certifies that this regulatory amendment 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 reason for this certification is that this

amendment would not directly affect any small entities. Only VA

beneficiaries could be directly affected. Therefore, pursuant to 5

U.S.C. 601(b), this amendment is exempt from the initial and final

regulatory flexibility analysis requirements of sections 603 and 604.

This regulatory action has been reviewed by the Office of

Management and Budget under Executive Order 12866.

List of Subjects in 38 CFR Part 4

Persons with Disabilities, Pensions, Veterans.

Approved: June 13, 1995.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 4 is amended

as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

1. The authority citation for part 4 is revised to read as follows:

Authority: 38 U.S.C. 1155.

Subpart B--Disability Ratings

2. Section 4.117 is revised to read as follows:

Sec. 4.117 Schedule of ratings--hemic and lymphatic systems.

Rating

7700 Anemia, hypochromic-microcytic and megaloblastic, such

as iron-deficiency and pernicious anemia:

Hemoglobin 5gm/100ml or less, with findings such as high

output congestive heart failure or dyspnea at rest....... 100

Hemoglobin 7gm/100ml or less, with findings such as

dyspnea on mild exertion, cardiomegaly, tachycardia (100

to 120 beats per minute) or syncope (three episodes in

the last six months)..................................... 70

Hemoglobin 8gm/100ml or less, with findings such as

weakness, easy fatigability, headaches, lightheadedness,

or shortness of breath................................... 30

Hemoglobin 10gm/100ml or less with findings such as

weakness, easy fatigability or headaches................. 10

Hemoglobin 10gm/100ml or less, asymptomatic............... 0

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Note: Evaluate complications of pernicious anemia, such as dementia or

peripheral neuropathy, separately.

7702 Agranulocytosis, acute:

Requiring bone marrow transplant, or; requiring

transfusion of platelets or red cells at least once every

six weeks, or; infections recurring at least once every

six weeks................................................ 100

Requiring transfusion of platelets or red cells at least

once every three months, or; infections recurring at

least once every three months............................ 60

Requiring transfusion of platelets or red cells at least

once per year but less than once every three months, or;

infections recurring at least once per year but less than

once every three months.................................. 30

Requiring continuous medication for control............... 10

Note: The 100 percent rating for bone marrow transplant shall be

assigned as of the date of hospital admission and shall continue with a

mandatory VA examination six months following hospital discharge. 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.

7703 Leukemia:

With active disease or during a treatment phase........... 100

Otherwise rate as anemia (code 7700) or aplastic anemia

(code 7716), whichever would result in the greater

benefit.

Note: The 100 percent rating shall continue beyond the cessation of any

surgical, radiation, antineoplastic chemotherapy or other 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 recurrence, rate on residuals.

7704 Polycythemia vera:

During periods of treatment with myelosuppressants and for

three months following cessation of myelosuppressant

therapy.................................................. 100

Requiring phlebotomy...................................... 40

Stable, with or without continuous medication............. 10

Note: Rate complications such as hypertension, gout, stroke or

thrombotic disease separately.

7705 Thrombocytopenia, primary, idiopathic or immune:

Platelet count of less than 20,000, with active bleeding,

requiring treatment with medication and transfusions..... 100

Platelet count between 20,000 and 70,000, not requiring

treatment, without bleeding.............................. 70

Stable platelet count between 70,000 and 100,000, without

bleeding................................................. 30

Stable platelet count of 100,000 or more, without bleeding 0

7706 Splenectomy............................................. 20

Note: Rate complications such as systemic infections with encapsulated

bacteria separately.

7707 Spleen, injury of, healed.

Rate for any residuals.

7709 Hodgkin's disease:

With active disease or during a treatment phase........... 100

Note: The 100 percent rating shall continue beyond the cessation of any

surgical, radiation, antineoplastic chemotherapy or other 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, rate on

residuals.

7710 Adenitis, tuberculous, active or inactive.

Rate under Secs. 4.88c or 4.89 of this part, whichever is

appropriate.

7714 Sickle cell anemia:

With repeated painful crises, occurring in skin, joints,

bones or any major organs caused by hemolysis and

sickling of red blood cells, with anemia, thrombosis and

infarction, with symptoms precluding even light manual

labor.................................................... 100

With painful crises several times a year or with symptoms

precluding other than light manual labor................. 60

Following repeated hemolytic sickling crises with

continuing impairment of health.......................... 30

Asymptomatic, established case in remission, but with

identifiable organ impairment............................ 10

Note: Sickle cell trait alone, without a history of directly

attributable pathological findings, is not a ratable disability. Cases

of symptomatic sickle cell trait will be forwarded to the Director,

Compensation and Pension Service, for consideration under Sec.

3.321(b)(1) of this chapter.

7715 Non-Hodgkin's lymphoma:

With active disease or during a treatment phase........... 100

Note: The 100 percent rating shall continue beyond the cessation of any

surgical, radiation, antineoplastic chemotherapy or other therapeutic

procedures. Six months after discontinuance of such treatment, the

appropriate disability rating shall be dtermined 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, rate on

residuals.

7716 Aplastic anemia:

Requiring bone marrow transplant, or; requiring

transfusion of platelets or red cells at least once every

six weeks, or; infections recurring at least once every

six weeks................................................ 100

Requiring transfusion of platelets or red cells at least

once every three months, or; infections recurring at

least once every three months............................ 60

Requiring transfusion of platelets or red cells at least

once per year but less than once every three months, or;

infections recurring at least once per year but less than

once every three months.................................. 30

Requiring continuous medication for control............... 10

Note: The 100 percent rating for bone marrow transplant shall be

assigned as of the date of hospital admission and shall continue with a

mandatory VA examination six months following hospital discharge. 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.

[FR Doc. 95-23515 Filed 9-21-95; 8:45 am]

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