Schedule for Rating Disabilities; Mental Disorders

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AF01

Schedule for Rating Disabilities; Mental Disorders

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend

that portion of its Schedule for Rating Disabilities dealing with

Mental Disorders. This is part of the first comprehensive review of the

rating schedule since 1945. The intended effect of this action is to

update the section of the rating schedule on mental disorders to ensure

that it uses current medical terminology and unambiguous criteria, and

that it reflects medical advances which have occurred since the last

review.

DATES: Comments must be received by VA on or before December 26, 1995.

ADDRESSES: Mail written comments to: Director, Office of Regulations

Management (02D), Department of Veterans Affairs, 810 Vermont Ave.,

NW., Washington, DC 20420 or hand deliver written comments to: Office

of Regulations Management, Room 1176, 801 Eye St., NW., Washington, DC

20001. Comments should indicate that they are submitted in response to

``RIN 2900-AF01.'' All written comments received will be available for

public inspection in the Office of Regulations Management, Room 1176,

801 Eye St., NW., Washington, DC 20001 between the hours of 8 a.m. and

4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,

Regulations Staff, Compensation and Pension Service, Veterans Benefits

Administration, Department of Veterans Affairs, 810 Vermont Ave., NW.,

Washington, DC 20420, (202) 273-7210.

SUPPLEMENTARY INFORMATION: Prior to the start of its comprehensive

review of the rating schedule, VA contracted with an outside consulting

firm to offer suggestions for changes in the rating schedule to help

fulfill the goals of revising and updating the medical criteria. This

proposed amendment includes many of their suggestions. Some

recommendations, however, addressed areas other than evaluation

criteria, such as percentage evaluations and frequency of examinations.

Since these suggestions are clearly beyond the scope of the contract

and deal with issues which would affect the internal consistency of the

entire rating schedule rather than one section, we have generally not

adopted them. The comments of the consultants are incorporated into the

discussions below.

VA published an advance notice of proposed rulemaking in the

Federal Register on May 2, 1991 (56 FR 20170) in order to solicit

comments and suggestions from interested groups and the general public.

In response to this notice, we received comments from several employees

of VA and one from The American Legion. All of the commenters

recommended a change in the rating criteria for mental disorders,

urging more clarity and objectivity, and more extensive and definitive

guidelines.

In the current rating schedule, Secs. 4.125 through 4.131 and the

notes in Sec. 4.132 contain general information about mental disorders

and guidelines for their evaluation. The material is organized

randomly, however, and we propose to reorganize it so that everything

dealing with a single topic is grouped together. We also propose to

make a number of editorial changes in the material to make the

provisions clearer and less ambiguous and to make the terminology more

current. We further propose to remove material which is not regulatory,

i.e., which neither prescribes VA policy nor limits the action a rating

board may take. Additionally, we propose to incorporate regulatory

material from the notes in Sec. 4.132 into Secs. 4.125 through 4.129,

reorganizing and rewording it, and removing repetitious material. This

will assure that all of the regulatory provisions are in one area of

the schedule, in orderly groupings, rather than spread throughout.

Much of Sec. 4.125 contains general information stating, for

example, that there have been rapid advances in modern psychiatry

during and since World War II, which have produced a better

understanding of the etiology, psychodynamics, and psychopathological

changes which

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occur in mental diseases and emotional disturbances, and that the field

of mental disorders represents the greatest possible variety of

etiology, chronicity, and disabling effects and requires differential

consideration in these respects. We propose to remove that material

because it neither prescribes VA policy nor establishes procedures a

rating board must follow and is, therefore, not appropriate in a

regulation.

The only information in Sec. 4.125 which is essential is the

statement that psychiatric nomenclature in the rating schedule is based

on the third edition of the Diagnostic and Statistical Manual (DSM-

III), published by the American Psychiatric Association in 1980, and

that rating specialists should familiarize themselves thoroughly with

that manual. The contract consultants recommended that we make changes

in the mental disorders section to assure that it is consistent with

the current DSM Manual, and we propose to update the terminology and

categories of mental disorders by basing them on the newest revised

edition, DSM-IV, which was published in 1994. The DSM Manuals are used

in the United States as the basis for the diagnosis and classification

of mental disorders. They are referred to by, and their terminology is

incorporated into, psychiatry textbooks. They represent the common

language of both VA and non-VA health care providers and researchers

and, therefore, provide rating specialists with a standard by which

examinations from all sources can be compared and assessed. The use of

DSM-IV as the basis for terminology and diagnostic classification of

mental disorders for VA purposes is, therefore, unquestionably

appropriate. We propose to present this material in a note rather than

assigning it an entire section of the CFR.

We propose to change the title of Sec. 4.125 from ``General

considerations'' to ``Diagnosis of mental disorders'' and to divide it

into two paragraphs, the first requiring that the rating board return

an examination report to the examiner if the diagnosis does not conform

to DSM-IV or is not supported by the findings in the report, and the

second directing the rating board to determine whether a change in

diagnosis of a mental disorder represents progression of a prior

diagnosis, correction of an error in a prior diagnosis, or development

of a new and separate condition. This material is taken from

Secs. 4.126 (Substantiation of diagnosis) and 4.128 (Change of

diagnosis).

We propose to place all material about evaluation of mental

disorders in Sec. 4.126 and to change the title from ``Substantiation

of diagnosis'' to ``Evaluation of disability from mental disorders.''

This material is taken from Secs. 4.129 and 4.130, a statement and

notes under DC 9511, notes (1) and (4) under DC 9325, and notes under

the general rating formula for psychoneurotic disorders. We propose to

divide this section into four paragraphs dealing with symptoms and

remissions, social impairment, organic mental disorders, and conditions

diagnosed both as physical and mental disorders.

Paragraph (a) of Sec. 4.126 establishes the general basis for

evaluating mental disorders as the frequency, severity, and duration of

psychiatric symptoms, the length of remissions, and the veteran's

capacity for adjustment during remissions. It further requires that an

evaluation be based on all evidence of record bearing on occupational

and social impairment. This material is derived from material currently

found at Sec. 4.130, Evaluation of psychiatric disability. We have

deleted the statement currently found in Sec. 4.130 that the examiner's

analysis of the symptomatology is an ``essential.'' Since we propose to

revise the evaluation criteria to rely on specific signs and symptoms

rather than on a subjective determination as to whether a disorder

results in total, severe, considerable, definite, or mild social and

industrial impairment, it is the signs and symptoms that the examiner

documents rather than his or her assessment of their level of severity

that will determine the evaluation that the rating specialist assigns.

We also propose to delete the statement that describes time lost from

gainful work and decrease in work efficiency as ``two of the most

important determinants of disability.'' Since the proposed evaluation

criteria are structured around the nature and extent of occupational

and social impairment, including decreased reliability, productivity,

and work efficiency, that statement is no longer necessary.

Paragraph (b) directs the rating board to consider the extent of

social impairment, but not to assign an evaluation solely on the basis

of social impairment. This is based on the current regulatory material

in Sec. 4.129 and in note (1) following the general rating formula for

psychoneurotic disorders, and represents no substantive change. The

contract consultants recommended a greater emphasis on social

impairment in rating mental disability, but because our statutory

authority to establish the rating schedule, 38 U.S.C. 1155, requires

that ratings be based, as far as practicable, upon the average

impairments of earning capacity, we do not propose to adopt that

recommendation.

Paragraph (c) directs the rating board to evaluate delirium,

dementia, and amnestic and other cognitive mental disorders under the

general rating formula for mental disorders and to combine this

evaluation with those for neurological or other physical impairments

stemming from the same etiology, e.g., a head injury. This represents

no substantive change from material currently contained in notes (1)

and (2) under DC 9325.

Paragraph (d) directs the rating board to evaluate a single

disability that has been diagnosed both as a physical condition and as

a mental disorder under the diagnostic code which represents the

dominant (more disabling) aspect of the condition. This represents no

substantive change from information in notes (4) and (2) at the end of

the rating schedules for psychoneurotic disorders and psychological

factors affecting physical condition, respectively, except that we have

deleted ``major degree of disability'' and substituted ``dominant (more

disabling) aspect of the condition'' for clarity.

We propose to change the title of Sec. 4.127 from ``Mental

deficiency and personality disorders'' to ``Mental retardation and

personality disorders,'' since the term ``mental deficiency'' is

obsolete and no longer in common use. This is not a substantive change.

We propose that Sec. 4.127 state that although mental retardation

and personality disorders will not be considered as disabilities under

the terms of the schedule, a mental disorder that is superimposed upon,

but clearly separate from, the mental retardation or personality

disorder may be a disability for VA compensation purposes. This

represents a revision of the language in the current Sec. 4.127 for the

sake of clarity but does not represent a substantive change.

Although the contract consultants suggested that we add a category

for psychoactive substance abuse disorders, we have not done so because

substance-related disorders are addressed elsewhere in regulations (38

CFR 3.1 (m) and 3.301).

We propose to change the title of Sec. 4.128 from ``Change of

diagnosis'' to ``Convalescence ratings following extended

hospitalization,'' and to include in it material from a note under DC

9210 regarding the need to continue a total evaluation following a

period of hospitalization lasting six months or more and to schedule a

mandatory examination six months after the

[[Page 54827]]

veteran is discharged or released to nonbed care. We propose to add a

requirement that a change in evaluation based on that or any subsequent

examination shall be subject to the provisions of 38 CFR 3.105(e),

which require a 60-day notice before VA can reduce an evaluation and an

additional 60-day notice before the reduced evaluation takes effect.

While the fact that an individual is no longer hospitalized usually

means there has been some improvement, stabilization and return to

usual activities in the face of a severe mental disorder is often

difficult to achieve. Making changes subject to Sec. 3.105(e) will

preclude changes in evaluation unless a stable level of improvement has

occurred, and will help to prevent a cycle of changes in evaluations

followed by further examinations, further changes in evaluations, etc.

We propose to move the regulatory material on social impairment

from Sec. 4.129 to Sec. 4.126, paragraph (b), as discussed above, and

to change the title of Sec. 4.129 from ``Social inadaptability'' to

``Mental disorders due to psychic trauma.'' We propose to include in

the revised Sec. 4.129 the regulatory material from Sec. 4.131, which

requires an evaluation of not less than 50 percent when a mental

disorder that develops in service as a result of a highly stressful

event is severe enough to cause the veteran's release from active

service.

As discussed above, we propose to delete the contents of

Sec. 4.130, titled ``Evaluation of psychiatric disability'' in favor of

the proposed paragraph (a) of Sec. 4.126 and the proposed evaluation

criteria for mental disorders.

We propose to retain the substance of Sec. 4.131, ``Mental

disorders due to psychic trauma,'' in Sec. 4.129 and to delete

Sec. 4.131.

There are currently four notes in Sec. 4.132 following the rating

formula for psychoneuroses. Notes (1), prohibiting assignment of

evaluations based on social impairment only, and (4), concerning

evaluation of a single disability which has been diagnosed both as a

physical and mental disability, have been incorporated into Sec. 4.126,

as discussed above. We propose to delete note (2), which discusses the

requirements for a compensable rating from mental disorders; it is

redundant since the proposed Secs. 4.125 and 4.126 and general rating

formula set forth clear diagnostic and evaluation requirements. We also

propose to incorporate the regulatory content of note (3), regarding

the return of an inadequate examination report to the examiner, and

note (1) under DC 9511, concerning the diagnosis of psychological

disorders, into Sec. 4.125, the section on diagnosis. We propose to

delete the part of note (3) that discusses requirements for the

diagnosis of conversion disorder, as this is discussed in detail in

DSM-IV.

We propose to incorporate the regulatory content of note (2) under

DC 9511, about the evaluation of a single condition diagnosed both as a

mental and a physical disorder, into Sec. 4.126, the section on

evaluation, in order to keep in one place all of the regulatory

material on evaluation of mental disorders.

The conditions included under Sec. 4.132 are currently divided into

four categories: psychotic disorders (DC's 9201 through 9210), organic

mental disorders (DC's 9300 through 9325), psychoneurotic disorders

(DC's 9400 through 9411), and psychological factors affecting physical

condition (DC's 9500 through 9511). The contract consultants

recommended that we reclassify some diseases in accordance with the

current version of the DSM, and we propose to do that. We propose to

reorganize the conditions into eight categories that conform more

closely to the categories in DSM-IV, thus making it easier for rating

specialists to correlate the diagnoses given on VA and non-VA exams

with the conditions in the rating schedule. This reorganization will

require a number of changes in the arrangement and titles of diagnostic

codes. We also propose to add diagnostic codes for several conditions

that are encountered frequently enough in VA claims to warrant their

inclusion in the rating schedule, but which are not currently found

there.

We propose a new category of ``Schizophrenia and other psychotic

disorders.'' Except for schizoaffective disorder, discussed below, we

propose no change in the diagnostic codes pertaining to schizophrenia

(DC's 9201 through 9205), which cover conditions with characteristic

psychotic symptoms during the active phase, involving delusions,

hallucinations, or certain characteristic disturbances in affect and

the form of thought. We do, however, propose to change the evaluation

criteria for schizophrenia and all other conditions in the section on

mental disorders, as will be discussed later in the preamble.

We propose to delete diagnostic codes 9206, bipolar disorder,

manic, depressed, or mixed, and 9207, major depression with psychotic

features, since we are providing a category for mood disorders that

will include conditions such as these, and these changes will be

addressed further when mood disorders are discussed.

We propose to update the title of diagnostic code 9208 from

``paranoid disorders (specify type)'' to ``delusional disorder'' and

place it in the category of schizophrenia and other psychotic

disorders, in accord with DSM-IV. This disorder is characterized by a

persistent, nonbizarre delusion that is not due to any other mental or

physical disorder.

We also propose to delete DC 9209, major depression with

melancholia, another condition that will be moved to the category of

mood disorders.

We propose to revise the title of DC 9210, ``atypical psychosis,''

to ``psychotic disorder, not otherwise specified (atypical

psychosis),'' and put it in the same category with other psychotic

disorders, in accord with DSM-IV. We also propose to put

schizoaffective disorder, now part of DC 9205 (schizophrenia, residual

type; schizoaffective disorder; other and unspecified types), in this

category as diagnostic code 9211. Although schizoaffective disorder is

linked to schizophrenia in the current schedule, DSM-IV names it as a

separate psychotic disorder rather than as a type of schizophrenia.

We propose to change the title of the current category of ``Organic

mental disorders'' to ``Delirium, dementia, and amnestic and other

cognitive disorders'' in accordance with DSM-IV. The conditions in this

section demonstrate a psychological or behavioral abnormality

associated with transient or permanent dysfunction of the brain. We

also propose to consolidate the 16 types of dementia in the current

schedule into fewer categories, since several, such as dementia

associated with endocrine disorder (DC 9322) and dementia associated

with systemic infection (DC 9324), are quite uncommon (only about one-

tenth of one percent of VA beneficiaries being compensated for dementia

have one of these types of dementia); and a number of others, such as

dementia associated with central nervous system syphilis (DC 9301),

dementia associated with intracranial infections other than syphilis

(DC 9302), and dementia associated with epidemic encephalitis (DC

9315), lend themselves to logical groupings based on etiology (in this

case, infection).

DSM-IV provides a classification of dementias that is more complex

than is needed or useful for VA purposes. For example, it has separate

categories for dementia due to Huntington's disease, due to Pick's

disease, and due to Creutzfeldt-Jacob disease, all of which are

uncommonly seen for VA rating purposes.

We propose a reorganization better suited to VA purposes, and

requiring

[[Page 54828]]

less revision of the schedule than would be needed to adopt the entire

DSM-IV structure. We propose to use six diagnostic codes for specific

dementias, many of them the same as are now present. We propose to

retain some types because of their frequent occurrence and relevance to

veterans, dementia due to head trauma, (DC 9304, dementia associated

with brain trauma in the current schedule), for example, and some

because they represent clusters of a particular etiology, as discussed

above. We propose to retain diagnostic codes for the types of dementia

most commonly seen in the general population, vascular dementia

(currently DC's 9305 and 9306, multi-infarct dementia with cerebral

arteriosclerosis and multi-infarct dementia due to causes other than

cerebral arteriosclerosis, respectively), and dementia of the

Alzheimer's type (currently DC 9312, primary degenerative dementia).

This reorganization will not affect how dementias are evaluated, since

all types will be evaluated under the same criteria, but will allow

separation of the most common types by etiology.

We propose to delete DC's 9303 (currently dementia associated with

alcoholism) and 9325 (currently dementia associated with drug or poison

intoxication (other than alcohol)), in accord with DSM-IV, which

categorizes them as subtypes of dementia due to general medical

conditions, further discussed below. We propose to change DC 9304

(dementia associated with brain trauma) to dementia due to head trauma,

because this is more modern terminology, and DC 9301 (dementia

associated with central nervous system syphilis) to dementia associated

with infection. We propose to include in the revised DC 9301 the

conditions now evaluated under DC's 9301, 9302 (dementia associated

with intracranial infections other than syphilis), 9315 (dementia

associated with epidemic encephalitis), and 9324 (dementia associated

with systemic infection), since the number of cases of dementia due to

infection is small, and the specific type of infection has no bearing

on the evaluation.

We propose to delete current diagnostic codes 9307 (dementia

associated with convulsive disorder), 9308 (dementia associated with

disturbances of metabolism), 9309 (dementia associated with brain

tumor), and 9322 (dementia associated with endocrine disorder), and to

rate these conditions under a single new diagnostic code, 9326, titled

dementia due to other neurologic or general medical conditions

(including endocrine disorders, metabolic disorders, drugs, alcohol,

poisons, Pick's disease, brain tumors, etc.). This category encompasses

in a single miscellaneous category a number of uncommon conditions that

DSM-IV names separately.

We propose to change the title of DC 9305 from multi-infarct

dementia with cerebral arteriosclerosis to vascular dementia and to

have it encompass multi-infarct dementia due to causes other than

cerebral arteriosclerosis (DC 9306), which we propose to delete, since

both are due to vascular disease and may be difficult to distinguish.

They are addressed as a single entity in DSM-IV.

In practice, it may be impossible to determine whether a dementia

fits into DC 9310 (dementia due to unknown cause) or DC 9311 (dementia

due to undiagnosed cause). We therefore propose to delete DC 9311 and

revise DC 9310 to encompass both as dementia of unknown etiology. We

propose to retain DC 9312 but to alter the title from dementia,

primary, degenerative, to dementia of the Alzheimer's type, in accord

with DSM-IV.

We also propose to add diagnostic code 9327, organic mental

disorder, other, to provide a code for conditions such as amnestic

disorder, organic personality disorder, and other cognitive disorders

that are not dementias.

We propose to create a new category for anxiety disorders, in

accord with DSM-IV. This category will include several of the

conditions currently listed under the category of psychoneurotic

disorders: ``generalized anxiety disorder'' (DC 9400), ``obsessive

compulsive disorder'' (DC 9404), ``other and unspecified neurosis'' (DC

9410), ``post-traumatic stress disorder'' (DC 9411), and ``specific

(simple) phobia; social phobia'' (DC 9403) (modified from the current

``phobic disorder,'' in accord with terminology in DSM-IV).

We propose to move some of the conditions now listed under

psychoneurotic disorders to new categories: DC 9401, dissociative

amnesia; dissociative fugue; dissociative identity disorder (currently

psychogenic amnesia; psychogenic fugue; multiple personality) and DC

9408, depersonalization disorder, to the category of dissociative

disorders, as discussed below; DC 9402, conversion disorder;

psychogenic pain disorder, and DC 9409, hypochondriasis, to somatoform

disorders, as discussed below; and to delete DC 9405, dysthymic

disorder; adjustment disorder with depressed mood; major depression

without melancholia, also as discussed below. We also propose to add to

anxiety disorders two conditions that occur frequently enough that

diagnostic codes are needed and which are not now included in the

rating schedule: ``panic disorder and/or agoraphobia'' (DC 9412) and

``anxiety disorder, not otherwise specified'' (DC 9413). While ``other

and unspecified neurosis'' (DC 9410 in the current schedule) is not

limited to anxiety disorders, we propose to place it in this category

as a matter of convenience, rather than giving it a separate category.

We propose to create a category for dissociative disorders,

conditions, according to DSM-IV, where there is a disturbance in the

usually integrated functions of identity, memory, consciousness, or

perception of the environment. Included in this category will be:

``dissociative amnesia; dissociative fugue; dissociative identity

disorder (multiple personality disorder)'', (DC 9416, changed from 9401

to keep conditions in this category together) and ``depersonalization

disorder'' (DC 9417, changed from 9408 for the same reason).

In accord with DSM-IV, we propose to add a category for somatoform

disorders, conditions characterized by the presence of physical

symptoms that suggest a general medical condition and are not explained

by a general medical condition, by the direct effects of a substance,

or by another mental disorder. We propose to move two disorders,

``conversion disorder; psychogenic pain disorder'' (DC 9402) and

``hypochondriasis'' (DC 9409), that are currently listed under the

category of psychoneuroses to this category and give them new

diagnostic codes (DC's 9424, 9422, and 9425) so that the somatoform

disorders can be grouped together. We propose to split ``conversion

disorder; psychogenic pain disorder'' into ``conversion disorder,'' DC

9424, and ``pain disorder'' (the current term for psychogenic pain

disorder), DC 9422, since the two conditions are distinct, and to

change the diagnostic code for ``hypochondriasis'' from DC 9409 to DC

9425. We also propose to add two other conditions: ``somatization

disorder'' (DC 9421), a commonly seen somatoform disorder not included

in the present schedule, and ``undifferentiated somatoform disorder''

(DC 9423), for somatoform disorders that do not fit elsewhere and for

which there is no suitable code in the current schedule.

We propose to establish a new category in the rating schedule for

mood disorders, which are characterized, according to DSM-IV, by a

disturbance in mood as the predominant feature. We

[[Page 54829]]

propose to place in this category: bipolar disorder (DC 9432),

dysthymic disorder (DC 9433), and major depressive disorder (DC 9434).

Major depressive disorder is currently included under three diagnostic

codes: 9207 (major depression with psychotic features), 9209 (major

depression with melancholia), and 9405 (dysthymic disorder; adjustment

disorder with depressed mood; major depression without melancholia).

Since DSM-IV does not recognize three varieties of major depressive

disorder, we propose to evaluate it under a single diagnostic code,

9434 (major depressive disorder). We also propose to change the

diagnostic codes for dysthymic disorder (currently dysthymia, DC 9405)

and bipolar disorder (DC 9206) to DC's 9433 and 9432, respectively, in

order to group the mood disorders together.

For the sake of completeness, we propose to provide diagnostic

codes for two additional mood disorders not currently included in the

rating schedule: cyclothymic disorder (DC 9431), which, although

related to bipolar disorder, is classified as a separate entity by DSM-

IV, and mood disorder, not otherwise specified (DC 9435), which allows

the evaluation of conditions with mood symptoms that do not meet the

criteria for any specific mood disorder. As part of this

reorganization, we propose to remove DC 9405 (``dysthymic disorder;

adjustment disorder with depressed mood; major depression without

melancholia'') since we are providing separate diagnostic codes for

both ``dysthymic disorder'' (DC 9433) and ``major depressive disorder''

(DC 9434) under the category of mood disorders.

A category of mental disorders that the current rating schedule

does not specifically address, but that is seen fairly often in the

veteran population, is adjustment disorder. The essential feature of an

adjustment disorder is the development of clinically significant

emotional or behavioral symptoms in response to an identifiable

psychosocial stressor or stressors. We propose to add a new category

and diagnostic code (9440) for chronic adjustment disorder.

The current rating schedule provides separate rating formulas for

psychotic disorders, organic mental disorders, and psychoneurotic

disorders. The formula for psychoneurotic disorders provides some

specific criteria at each evaluation level, but also uses ``mild,''

``definite,'' ``considerable,'' and ``severe'' industrial impairment at

certain levels. Formulas for the other two provide specific criteria

only at the 100 percent level and assign less than total evaluations

based on whether there is ``mild,'' ``definite,'' ``considerable,'' or

``severe'' impairment of social and industrial adaptability at the

other levels. Because those are non-specific terms, they are subject to

interpretation by individual rating boards, and it is possible that

they may not be applied consistently. For example, the current

criterion for the 50 percent level of evaluation for psychotic

disorders is: ``considerable impairment of social and industrial

adaptability.'' This offers no objective guidance for the rating board

and makes comparison of one exam with another difficult. We propose to

provide more objective criteria that will in turn result in more

consistent evaluations.

The contract consultants recommended that we base the evaluation of

mental disorders on more extensive objective descriptions of their

possible effects and with examples of signs and symptoms at various

levels. In keeping with that recommendation, we propose to evaluate all

mental disorders except eating disorders under a single formula,

providing objective criteria based on signs and symptoms which

characteristically produce a particular level of disability. For

example, we propose criteria for the 50 percent level to be:

``moderately severe impairment in social and occupational functioning

with reduced reliability and productivity due to such symptoms as:

flattened affect; circumstantial, circumlocutory, or stereotyped

speech; panic attacks more than once a week; difficulty in

understanding complex commands; impairment of short--and long-term

memory (e.g., retention of only highly learned material, forgetting to

complete tasks); impaired judgment; impaired abstract thinking;

disturbances of motivation and mood; difficulty in establishing and

maintaining effective relationships at work and socially.'' These

criteria are clearly more objective than the present rating formulas,

and providing such objective criteria at each level of evaluation will

result in more consistent evaluations and will offer greater ease in

comparing examinations.

The symptoms indicated at each level are not intended to be

comprehensive (and could not be, because of the multitude of symptoms

in mental disorders), but to provide an objective framework that will

enable rating boards to assign consistent evaluations for mental

disorders based on signs and symptoms. The proposed criteria are more

objective than the current ones because they focus on the level of

impairment of occupational and social functioning as related to the

specific symptoms which are present, whether the symptoms are

persistent or transient, their frequency (e.g., of panic attacks), and

their severity (e.g., degrees of memory loss are given at different

levels). With more specific and objective criteria, the rating board

can make a determination of the level of severity based on all the

evidence of record, including the detailed report of all signs and

symptoms, relevant information regarding employment, report of daily

activities, etc., and will not have to attempt an assessment based on

whether the evidence corresponds to the non-specific language in the

current schedule.

In the current rating schedule, DC's 9500 through 9511 represent

psychological factors affecting physical conditions in various body

systems, and they are in their own category. Evaluation is directed to

be made under the general rating formula for psychoneurotic disorders.

In DSM-IV, the condition of ``psychological factors affecting physical

condition'' has been renamed ``psychological factors affecting medical

condition'' (PFAMC) and placed in a new category, ``Other conditions

that may be a focus of clinical attention.'' DSM-IV states that PFAMC

refers to the presence of one or more specific psychological or

behavioral factors that adversely affect a general medical condition.

There are therefore two components in PFAMC: a medical condition and

psychological factors. There is no need for a separate code and

evaluation criteria for this condition, and we propose to delete DC's

9500 through 9511. Psychological factors that do not constitute a

recognized mental disorder would not be service-connectable in their

own right. A separate evaluation for each service-connected component

would be made as usual under the appropriate diagnostic code(s). An

additional separate evaluation for PFAMC would not be warranted, and in

fact would represent pyramiding (see 38 CFR 4.14).

We propose to add one other category, ``eating disorders,'' a group

of mental disorders characterized by gross disturbances in eating

behavior. This category will include anorexia nervosa (DC 9520) and

bulimia nervosa (DC 9521), conditions which are commonly diagnosed but

cannot be appropriately rated under the proposed general rating

criteria for mental disorders because their more disabling aspects are

manifested primarily by physical findings rather than by psychological

symptoms. We propose that the criteria be based partly on the extent of

weight loss (per DSM-IV) and partly on the extent of incapacitating

episodes and needed periods of hospitalization.

The contract consultants suggested we include the categories of

sexual

[[Page 54830]]

disorders and sleep disorders in the revised schedule. Sexual

disorders, which include sexual dysfunctions such as sexual desire

disorders and orgasmic disorders, paraphilias such as fetishism and

sexual sadism, and gender identity disorders, do not have any inherent

effect on employability, and we do not propose to include them in the

schedule. Sleep disorders are often manifested by significant physical

manifestations, and narcolepsy is currently addressed in the rating

schedule under neurologic disorders (as DC 8108). We published a

proposed revision of the respiratory disorders section of the rating

schedule (58 FR 4962-69) that will include sleep apnea (as DC 6846). We

therefore do not propose to add a separate category for sleep disorders

to the mental disorders section of the schedule.

Section 4.16 of 38 CFR was established to assure that any veteran

unable to secure or follow a substantially gainful occupation because

of service-connected disabilities will be awarded a total evaluation

even though the schedular evaluation does not reach that level. Section

4.16(c) provides that where the only service-connected disability is a

mental disorder assigned a 70 percent schedular evaluation, but which

nonetheless precludes the veteran from securing or following a

substantially gainful occupation, the mental disorder will be assigned

a 100 percent schedular evaluation rather than an extra-schedular total

evaluation. We propose to delete Sec. 4.16 (c), because, in our

judgment, it is possible that a veteran may be properly evaluated at a

level less than 100 percent based on average impairment, but because of

unique aspects of his or her individual situation, might still be

unable to secure or follow a substantially gainful occupation. In order

to allow rating specialists the flexibility to fairly evaluate such

situations, we propose to have Sec. 4.16(a) apply to mental disorders

in the same manner that it does to other disabilities.

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 (RFA), 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. 605(b), this amendment is exempt from the initial and final

regulatory flexibility analysis requirements of sections 603 and 604.

This rule has been reviewed under Executive Order 12866 by the

Office of Management and Budget.

The Catalog of Federal Domestic Assistance program numbers are

64.104 and 64.109.

List of Subjects in 38 CFR Part 4

Disability benefits, Individuals with disabilities, Pensions,

Veterans.

Approved: July 19, 1995.

Jesse Brown,

Secretary of Veterans Affairs.

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

to be amended as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

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

Authority: 38 U.S.C. 1155.

Sec. 4.16 [Amended]

2. In Sec. 4.16, paragraph (c) is removed.

Subpart B--Disability Ratings

3. Section 4.125 is revised to read as follows:

Sec. 4.125 Diagnosis of mental disorders.

(a) If the diagnosis of a mental disorder does not conform to DSM-

IV or is not supported by the findings on the examination report, the

rating board shall return the report to the examiner to substantiate

the diagnosis.

(b) If the diagnosis of a mental disorder is changed, the rating

board shall determine whether the new diagnosis represents progression

of the prior diagnosis, correction of an error in the prior diagnosis,

or development of a new and separate condition. If it is not clear from

the available records what the change of diagnosis represents, the

rating board shall return the report to the examiner for a

determination.

4. Section 4.126 is revised to read as follows:

Sec. 4.126 Evaluation of disability from mental disorders.

(a) When evaluating a mental disorder, the rating board shall

consider the frequency, severity, and duration of psychiatric symptoms,

the length of remissions, and the veteran's capacity for adjustment

during periods of remission. The rating board shall assign an

evaluation based on all the evidence of record that bears on

occupational and social impairment rather than on the examiner's

assessment of the level of disability at the moment of the examination.

(b) When evaluating the level of disability from a mental disorder,

the rating board will consider the extent of social impairment, but

shall not assign an evaluation solely on the basis of social

impairment.

(c) Delirium, dementia, and amnestic and other cognitive disorders

shall be evaluated under the general rating formula for mental

disorders; neurologic deficits or other impairments stemming from the

same etiology (e.g., a head injury) shall be evaluated separately and

combined with the evaluation for delirium, dementia, or amnestic or

other cognitive disorder (see Sec. 4.25 of this part).

(d) When a single disability has been diagnosed both as a physical

condition and as a mental disorder, the rating board shall evaluate it

using a diagnostic code which represents the dominant (more disabling)

aspect of the condition (see Sec. 4.14 of this part).

5. Section 4.127 is revised to read as follows:

Sec. 4.127 Mental retardation and personality disorders.

Mental retardation and personality disorders will not be considered

as disabilities under the terms of the schedule, but a mental disorder

that is superimposed upon, but clearly separate from, the mental

retardation or personality disorder may be a disability for VA

compensation purposes.

6. Section 4.128 is revised to read as follows:

Sec. 4.128 Convalescence ratings following extended hospitalization.

If a mental disorder has been assigned a total evaluation due to a

continuous period of hospitalization lasting six months or more, the

rating board shall continue the total evaluation indefinitely and

schedule a mandatory examination six months after the veteran is

discharged or released to nonbed care. A change in evaluation based on

that or any subsequent examination shall be subject to the provisions

of Sec. 3.105(e) of this chapter.

7. Section 4.129 is revised to read as follows:

Sec. 4.129 Mental disorders due to psychic trauma.

When a mental disorder that develops in service as a result of a

highly stressful event is severe enough to bring about the veteran's

release from active military service, the rating board shall assign an

evaluation of not less than 50 percent and schedule an examination

within the six month period following the veteran's discharge.

8. Section 4.130 is revised to read as follows:

[[Page 54831]]

Sec. 4.130 Schedule of ratings--mental disorders.

Note: The nomenclature employed in this portion of the rating

schedule is based upon the Diagnostic and Statistical Manual of

Mental Disorders, Fourth Edition, of the American Psychiatric

Association (DSM-IV). Rating boards must be thoroughly familiar with

this manual to properly implement the directives in Sec. 4.125

through Sec. 4.129 and to apply the general rating formula for

mental disorders in Sec. 4.130.

Schizophrenia and Other Psychotic Disorders

9201 Schizophrenia, disorganized type

9202 Schizophrenia, catatonic type

9203 Schizophrenia, paranoid type

9204 Schizophrenia, undifferentiated type

9205 Schizophrenia, residual type; other and unspecified types

9208 Delusional disorder

9210 Psychotic disorder, not otherwise specified (atypical psychosis)

9211 Schizoaffective disorder

Delirium, Dementia, and Amnestic and Other Cognitive Disorders)

9300 Delirium

9301 Dementia due to infection (HIV infection, syphilis, or other

systemic or intracranial infections)

9304 Dementia due to head trauma

9305 Vascular dementia

9310 Dementia of unknown etiology

9312 Dementia of the Alzheimer's type

9326 Dementia due to other neurologic or general medical conditions

(endocrine disorders, metabolic disorders, drugs, alcohol, poisons,

Pick's disease, brain tumors, etc.)

9327 Organic mental disorder, other

Anxiety Disorders

9400 Generalized anxiety disorder

9403 Specific (simple) phobia; social phobia

9404 Obsessive compulsive disorder

9410 Other and unspecified neurosis

9411 Post-traumatic stress disorder

9412 Panic disorder and/or agoraphobia

9413 Anxiety disorder, not otherwise specified

Dissociative Disorders

9416 Dissociative amnesia; dissociative fugue; dissociative identity

disorder (multiple personality disorder)

9417 Depersonalization disorder

Somatoform Disorders

9421 Somatization disorder

9422 Pain disorder

9423 Undifferentiated somatoform disorder

9424 Conversion disorder

9425 Hypochondriasis

Mood Disorders

9431 Cyclothymic disorder

9432 Bipolar disorder

9433 Dysthymic disorder

9434 Major depressive disorder

9435 Mood disorder, not otherwise specified

Chronic Adjustment Disorder

9440 Chronic adjustment disorder

General Rating Formula for Mental Disorders

Total occupational and social impairment, due to such symptoms as:

gross impairment in thought processes or communication; persistent

delusions or hallucinations; grossly inappropriate behavior; persistent

danger of hurting self or others; intermittent inability to perform

activities of daily living (including maintenance of minimal personal

hygiene); disorientation to time or place; memory loss for names of

close relatives, own occupation, or own name--100.

Severe occupational and social impairment, with deficiencies in

most areas, such as work, school, family relations, judgment, thinking,

or mood, due to such symptoms as: Suicidal ideation; obsessional

rituals which interfere with routine activities; speech intermittently

illogical, obscure, or irrelevant; near-continuous panic or depression

affecting the ability to function independently, appropriately and

effectively; impaired impulse control (such as unprovoked irritability

with periods of violence); spatial disorientation; neglect of personal

appearance and hygiene; difficulty in adapting to stressful

circumstances (including work or a worklike setting); inability to

establish and maintain effective relationships--70,

Occupational and social impairment with reduced reliability and

productivity due to such symptoms as: Flattened affect; circumstantial,

circumlocutory, or stereotyped speech; panic attacks more than once a

week; difficulty in understanding complex commands; impairment of

short- and long-term memory (e.g., retention of only highly learned

material, forgetting to complete tasks); impaired judgment; impaired

abstract thinking; disturbances of motivation and mood; difficulty in

establishing and maintaining effective work and social relationships--

50.

Occupational and social impairment with occasional decrease in work

efficiency and intermittent periods of inability to perform

occupational tasks (although generally functioning satisfactorily, with

routine behavior, self-care, and conversation normal), due to such

symptoms as: Depressed mood, anxiety, suspiciousness, panic attacks

(weekly or less often), chronic sleep impairment, mild memory loss

(such as forgetting names, directions, recent events)--30.

Occupational and social impairment due to mild or transient

symptoms which decrease work efficiency and ability to perform

occupational tasks only during periods of significant stress, or;

symptoms controlled by continuous medication--10.

A mental condition has been formally diagnosed, but symptoms are

not severe enough either to interfere with occupational and social

functioning or to require continuous medication--0.

Eating Disorders

9520 Anorexia nervosa

9521 Bulimia nervosa

Rating Formula for Eating Disorders

Self-induced weight loss to less than 80 percent of expected

minimum weight, with incapacitating episodes of at least six weeks

total duration, and requiring hospitalization more than twice a year

for parenteral nutrition or tube feeding--100.

Self-induced weight loss to less than 85 percent of expected

minimum weight with incapacitating episodes of six or more weeks total

duration per year--60.

Self-induced weight loss to less than 85 percent of expected

minimum weight with incapacitating episodes of more than two but less

than six weeks total duration per year--30.

Binge eating followed by self-induced vomiting or other measures to

prevent weight gain, or resistance to weight gain even when below

expected minimum weight, with diagnosis of an eating disorder and

incapacitating episodes of up to two weeks total duration per year--10.

Binge eating followed by self-induced vomiting or other measures to

prevent weight gain, or resistance to weight gain even when below

expected minimum weight, with diagnosis of an eating disorder but

without incapacitating episodes--0.

Note: An incapacitating episode is a period during which bed

rest and treatment by a physician are required.

Secs. 4.131 and 4.132 [Removed]

9. Sec. 4.131 and Sec. 4.132 are removed.

[FR Doc. 95-26567 Filed 10-25-95; 8:45 am]

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