Schedule for Rating Disabilities; Endocrine System Disabilities

DEPARTMENT OF THE TREASURY

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AE41

Schedule for Rating Disabilities; Endocrine System Disabilities

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends that portion of the Department of

Veterans Affairs (VA) Schedule for Rating Disabilities that addresses

the Endocrine System. The effect of this action is to update the

endocrine portion of the rating schedule 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: This amendment is effective June 6, 1996.

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

Regulations Staff (211B), Compensation and Pension Service, Veterans

Benefits Administration, Department of Veterans Affairs, 810 Vermont

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

SUPPLEMENTARY INFORMATION: As part of the first comprehensive review of

the rating schedule since 1945, VA published a proposal to amend 38 CFR

4.119, which addresses the endocrine system, in the Federal Register of

January 22, 1993 (58 FR 5691-95). Interested persons were invited to

submit written comments on or before March 23, 1993. We received

comments from The American Legion, Disabled American Veterans, Veterans

of Foreign Wars, Paralyzed Veterans of America, and VA employees.

There were a number of general comments. Two commenters requested

that we establish more objective criteria, especially for thyroid

disease, parathyroid disease, and diabetes mellitus. One of them noted

that a substantial number of subjective descriptors remained. The other

recommended that we remove ambiguous and undefined terms. One commenter

said that the schedule should eliminate, as much as possible, the

potential for inconsistency and error. Another suggested that removing

comparative descriptions such as ``severe,'' ``moderate'', etc., would

not disturb the remaining criteria and would result in more uniform

rating decisions.

Although the commenters offered no specific alternatives for

consideration, VA agrees that objective rating criteria help assure

consistency of evaluations. With that in mind, we have revised the

proposed criteria. In some cases we have simply removed subjective

terms such as ``marked'', ``increasingly severe'', and ``pronounced''

when they did not substantively explain or clarify the evaluation

criteria. In other cases, we have supplied objective definitions of

terms. In still others, establishing more objective, consistent, and

unambiguous criteria required more detailed modification of the

proposed criteria, which will be discussed under the affected

diagnostic codes.

One commenter, while agreeing with the removal of ambiguous words

such as ``severe,'' urged that the rules not be made too concrete and

thus sterile.

We believe that providing clear and objective criteria is the best

way to assure that disabilities will be evaluated fairly and

consistently. Judgment and flexibility are required in the evaluation

process, since patients do not commonly present as textbook models of

disease, and those evaluating disabilities always have the task of

assessing which evaluation level best represents the overall picture.

(See 38 CFR 4.7.)

One commenter stated that it would be helpful to have additional

notes, such as the note under DC 7913 on the evaluation of the

complications of diabetes mellitus, discussing pertinent clinical and

nonclinical factors to be considered in assigning evaluations.

In general, we have retained or expanded upon such notes. Where it

seemed more appropriate, we have incorporated the content of notes into

the evaluation criteria. We have not added notes containing background

material, such as general medical information that is available in

standard textbooks, or other material that neither prescribes VA policy

nor establishes procedures a rating board must follow, because such

material is not appropriate in a regulation.

We have revised hyperthyroidism, DC 7900, in response to the

comment suggesting more objectivity. The proposed criteria required

``severe tachycardia'' at the 100 percent level and ``tachycardia'' at

all other levels. According to ``The Merck Manual'' (463, 16th ed.

1992), tachycardia is a heart rate greater than 100 beats per minute,

but the medical literature does not define ``severe'' tachycardia.

Using the word ``severe'' therefore imposed upon the rater the burden

of subjectively determining its meaning, and we have removed ``severe''

at the 100 percent level. We have also made the criteria more objective

by indicating that tachycardia means more than 100 beats per minute.

We proposed that the criteria for hyperthyroidism include ``marked

sympathetic nervous system, cardiovascular, or gastrointestinal

symptoms'' at the 100 percent level and ``marked emotional

instability'' at the 60 percent level. In both cases, we have removed

the indefinite word ``marked'' because it does not substantively

explain or clarify the evaluation criteria, and the criteria are clear

without it.

One commenter suggested that we specify the symptoms of the

sympathetic nervous system proposed as criteria at the 100 percent

level of evaluation under DC 7900.

VA does not concur. The sympathetic nervous system innervates

thoracic, abdominal, and pelvic viscera as well as blood vessel walls.

Therefore, exaggerated sympathetic nervous system activity can have

widespread manifestations including, but not limited to, elevated blood

pressure, increased cardiac output, increased metabolic rate, sweating,

nervousness, weight loss, tachycardia, palpitations, increased

frequency of bowel movements, and heat intolerance. Certain conditions,

hyperthyroidism among them, are known as sympathomimetic conditions

because they mimic the effects of increased activity of the sympathetic

nervous system, although the sympathetic nervous system itself is

normal. Since the particular signs and symptoms that might be exhibited

vary widely from individual to individual, limiting the criteria at the

100 percent level to a few selected symptoms of the sympathetic nervous

system would be inappropriate.

We proposed that increased pulse pressure be one of the criteria

for the 60 percent and 30 percent levels of hyperthyroidism. One

commenter questioned the use of pulse pressure as a criterion, stating

that it is not a diagnostic marker and is not routinely recorded on an

examination report.

Pulse pressure is the difference between the systolic and diastolic

blood pressures, and it is readily available for anyone who has had a

blood pressure recorded. Hyperthyroidism is one of a number of diseases

that may produce an increased (or widened) pulse pressure, which

results from an elevated systolic blood pressure and a lowered

diastolic blood pressure. Because increased pulse pressure is a common

sign of hyperthyroidism, it is an appropriate criterion to use in

evaluating hyperthyroidism.

One commenter suggested that tremor (one of several proposed

criteria for hyperthyroidism at the 10 and 30

[[Page 20441]]

percent levels of evaluation) be evaluated as a secondary condition

with a minimum evaluation of 20 percent, even for involvement of only

one hand, because it is an employment handicap.

VA does not concur. There are several types of tremors, and it

appears that the commenter may have based his suggestion on the

observation of an individual with a tremor other than the type

characteristic of hyperthyroidism. The tremor of hyperthyroidism is a

fine tremor most noticeable in the outstretched hands. It is

characterized as a physiologic tremor, i.e., one that is an

exaggeration of the normal physiologic tremor that virtually everyone

experiences at times (``Harrison's Principles of Internal Medicine''

167 (Jean D. Wilson, M.D. et al. eds., 12th ed. 1991)), and is not

severely disabling. Including tremor as one of the requirements at the

10 and 30 percent levels of evaluation for hyperthyroidism takes into

account the type and severity of the characteristic hyperthyroid-

induced tremor. In our judgment, the presence of such a tremor would

not, in and of itself, warrant the 20 percent evaluation the commenter

suggests.

One commenter suggested that emotional disorders and

gastrointestinal and cardiovascular symptoms due to thyroid conditions

(hyperthyroidism, DC 7900; toxic adenoma of thyroid gland, DC 7901;

hypothyroidism, DC 7903) be evaluated separately rather than being part

of the evaluation criteria for thyroid conditions.

Severe thyroid disease may produce distinct secondary conditions,

including certain mental disorders, and such conditions can always be

service-connected and separately evaluated (see 38 CFR 3.310(a)). Some

secondary conditions, e.g., dementia under hypothyroidism (DC 7903),

are specifically included in the evaluation criteria for the 60- or

100-percent levels of thyroid disease. This does not exclude the

possibility of service-connecting and separately evaluating the

secondary condition, but provides an alternative means of evaluation by

allowing the secondary condition to be used to support the 60- or 100-

percent evaluation level of thyroid disease. However, the same

condition cannot be separately evaluated and concurrently used to

evaluate the primary condition (DC's 7900, 7901, or 7903). (See 4.14 of

this part.) This is comparable to the evaluation of diabetes mellitus

(DC 7913), where compensable complications of diabetes may be either

separately evaluated or used to support a 100-percent evaluation.

The request for separate evaluation of symptoms is a different

issue. Because of the widespread effects of thyroid hormone, the

symptoms of thyroid disease are diverse, reflecting effects on multiple

body systems. However, the presence of such symptoms (e.g.,

gastrointestinal symptoms under hyperthyroidism (DC 7900)) can be an

inherent part of thyroid disease and does not ordinarily indicate that

a separate and distinct secondary condition is present. Unless they are

clearly part of a distinct condition secondary to thyroid disease, the

symptoms must be used in the overall evaluation criteria for the

thyroid condition. The evaluation of secondary conditions is discussed

in the preceding paragraph.

In the previous schedule, nontoxic adenoma of the thyroid (DC 7902)

was evaluated on the basis of pressure symptoms or marked

disfigurement. We proposed that it be evaluated at the 20 percent level

if there is ``marked disfigurement of the head or neck.'' One commenter

suggested that nontoxic adenoma of the thyroid be rated analogous to DC

7800 (scars, disfiguring, head, face, or neck).

We do not concur. Disfigurement from a nontoxic adenoma of the

thyroid is not a skin phenomenon but an enlargement of the thyroid that

produces an unsightly neck mass through sheer bulk. Factors that are

used to evaluate skin conditions, such as discoloration and color

contrast, are not appropriate for evaluating that type of

disfigurement. In response to the general request for more objective

criteria previously mentioned, we have removed the word ``marked'',

leaving ``with disfigurement of the head or neck'' as the sole

criterion for a 20 percent evaluation. In our judgment, any adenoma

that is substantial enough to be disfiguring warrants a 20 percent

evaluation. This does not represent a substantive change from the

proposed criteria.

The proposed note under DC 7902 stated to rate as impairment of

affected organ if a higher evaluation is warranted. For the sake of

clarity, we have revised the note to state that if there are symptoms

due to pressure on adjacent organs such as the trachea, larynx, or

esophagus, nontoxic adenoma of the thyroid will be evaluated under the

diagnostic code for disability of that organ, if doing so would result

in a higher evaluation. This does not represent a substantive change

from the proposed note.

We proposed to delete the zero percent level of evaluation for

nontoxic adenoma (DC 7902) that was present in the previous schedule.

However, to clarify that not all nontoxic adenomas are considered

disfiguring, we have restored the zero percent level for those

``without disfigurement of the head or neck.'' This does not represent

a substantive change.

For the sake of clarity, we have also removed the indefinite word

``severe'' before ``cold intolerance'' in the proposed criteria for a

100 percent evaluation for hypothyroidism (DC 7903) and revised the

indefinite criterion ``slow pulse'' to the more precise medical term

``bradycardia'', which is defined as less than 60 beats per minute. We

have also revised the requirement of ``mental symptoms'' to ``mental

disturbance,'' since some of the possible manifestations are symptoms

but others are distinct mental disorders. These are not substantive

changes.

One commenter, stating that obesity is such a pervasive problem in

American society that weight gain is not a true measure or mark of a

specific disorder, felt that weight gain should not be included in the

criteria for the 60 percent evaluation for hypothyroidism (DC 7903).

VA does not concur. There are special characteristics of the weight

gain associated with hypothyroidism that distinguish it from the weight

gain seen in simple obesity. The weight gain in hypothyroidism is

largely due to fluid retention, which appears as ascites, pleural

effusion, edema of the extremities, or even edema of the nervous system

(``Williams Textbook of Endocrinology'' 447-48 (Jean D. Wilson, M.D.

and Daniel W. Foster, M.D. eds., 8th ed. 1992)). This type of weight

gain is unlikely to be confused with obesity. For this reason, we

believe that weight gain is appropriate as part of the overall criteria

for the evaluation of hypothyroidism, and we have retained it among the

criteria for the 60 percent level.

The previous schedule included ``sluggish mentality and other

indications of myxedema'' in the criteria for the 30 percent evaluation

level of hypothyroidism (DC 7903). We proposed to retain mental

sluggishness as one of the criteria, but to delete the term myxedema. A

commenter objected to the removal of myxedema, saying there is no basis

for our contention that myxedema is seldom encountered.

The term myxedema is sometimes used loosely to refer to

hypothyroidism in general, but in its stricter meaning, it is full-

blown hypothyroidism with fluid retention. Hypothyroidism may present

at any level of severity, including a subclinical form, and myxedema in

the strict sense is found only in severe disease, when hypothyroidism

is

[[Page 20442]]

untreated or has reached an advanced stage. We therefore replaced

``sluggish mentality with other indications of myxedema'' at the 30

percent level with less ambiguous criteria: fatigability, constipation,

and mental sluggishness.

The previous schedule assigned hyperthyroidism (DC 7900) and

hypothyroidism (DC 7903) minimum ten percent evaluations when

continuous medication is required for control. We proposed to delete

the minimum evaluations, and three commenters objected.

Upon further review, VA agrees that a ten percent evaluation is

appropriate when continuous medication is required for control of these

conditions because such treatment implies both the need for repeated

medical evaluations and the possibility of side effects that may

themselves require treatment. We have therefore restored the ten

percent evaluation level under diagnostic codes 7900 and 7903 for those

who require continuous medication. For the sake of consistency, we have

also added a ten percent evaluation level under hyperparathyroidism (DC

7904) for those who require continuous medication. We have recast the

note under hypoparathyroidism (DC 7905) establishing a minimum

evaluation of ten percent when continuous medication is required as ten

percent evaluation criteria. The change under DC 7905 is editorial in

nature and does not represent any substantive change to the criteria as

proposed.

``Decreased levels of circulating thyroid hormones (T4 and/or T3 by

specific assays)'' was one of the criteria for a 100 percent evaluation

for hypothyroidism (DC 7903) in the previous schedule. We proposed a

change to ``undetectable levels of circulating thyroid hormones'' as

one of the criteria for the 100 percent level. Two commenters felt that

the proposed change made the criteria too stringent.

VA concurs. Therapy is instituted as soon as medical personnel

learn that there are no detectable levels of hormone; the therapy

produces a rapid reversion of hormone levels toward normal but leaves

the clinical signs of disease to resolve more slowly. Although many

endocrine conditions require laboratory confirmation of hormone levels

for diagnosis, the hormone levels may not correlate with the severity

of the clinical findings, and laboratory findings are therefore more

useful for diagnosis than evaluation. For these reasons, we have

removed: (1) ``undetectable levels of circulating thyroid hormones''

from the criteria for the 100 percent level of hypothyroidism (DC

7903), (2) ``decreased levels of circulating thyroid hormone'' from the

60 percent and 30 percent levels of hypothyroidism, (3) ``elevated

levels of circulating thyroid hormones'' as a requirement for the 100

and 60 percent levels of hyperthyroidism (DC 7900), and (4) ``elevated

blood and urine calcium levels'' as a requirement for the 100 and 60

percent levels of hyperparathyroidism (DC 7904).

One commenter suggested that we quantify weight loss by indicating

a percentage below normal weight or similar objective measure rather

than using the term ``marked weight loss'' for the 100 and 60 percent

levels of hyperparathyroidism (DC 7904).

In addition to removing the references to laboratory findings, as

discussed above, we have modified the criteria for hyperparathyroidism

by removing ``marked weight loss'' from the criteria for the 100 and 60

percent levels. Since severe hyperparathyroidism may manifest itself

through a variety of gastrointestinal symptoms, weight loss being only

one (Williams, 1431), we have replaced the separate requirement for

weight loss with the more flexible requirement for ``gastrointestinal

symptoms (nausea, vomiting, anorexia, constipation, weight loss, or

peptic ulcer)'' at the 100 and 60 percent levels. This change

recognizes that gastrointestinal symptoms are part of an overall

pattern of abnormalities, but that any individual symptom, such as a

specified amount of weight loss, is not required for either level of

severity. This offers more flexibility than the proposed requirement

for marked weight loss.

We proposed that ocular disturbances be one of the criteria for

both the 100 percent and 60 percent levels of evaluation for

hypoparathyroidism (DC 7905). One commenter, while giving no reason,

requested that ocular disturbances be removed as a criterion.

There are two distinct types of ocular disturbance that may occur

in hypoparathyroidismcataracts and papilledema (Williams, 1456-57;

Harrison, 1915-16). Papilledema, if present, would be an indication of

the increased intracranial pressure that sometimes occurs in

hypoparathyroidism, but it is only one possible manifestation of

increased intracranial pressure. Cataracts are unrelated to increased

intracranial pressure. For the sake of making the criteria clearer and

more objective, we have substituted ``cataract or evidence of increased

intracranial pressure (such as papilledema)'' for ``ocular

disturbances''.

One commenter mentioned hypoparathyroidism as another example of a

condition where objective criteria should be employed in place of

ambiguous terms.

Criteria we proposed for the 100 percent level of

hypoparathyroidism, in addition to ocular disturbances, were: seizures

or convulsions, muscular spasm (tetany), or marked neuromuscular

excitability. Since muscular spasms and convulsions are themselves two

specific manifestations of marked neuromuscular excitability, for more

clarity and to eliminate redundancy, we have retained marked

neuromuscular excitability as one of the criteria, giving its most

common manifestationsconvulsions, muscular spasms (tetany), and

laryngeal stridorin parentheses. By providing this list of conditions,

we have made the meaning of ``marked'' definite enough that it

substantively clarifies the degree of neuromuscular excitability needed

to support a 100 percent evaluation.

For the 60 percent level of hypoparathyroidism, the proposed

criteria were: marked neuromuscular excitability, ocular disturbances,

and constipation or numbness and tingling of the extremities. We have

revised the proposed criteria by providing three alternative sets of

criteria: marked neuromuscular excitability, a combination of

paresthesias (of arms, legs, or circumoral area) and cataract, or a

combination of paresthesias and increased intracranial pressure. While

this represents a substantive change, it responds to the general

comment that we eliminate, as much as possible, the potential for

inconsistency and error. The proposed criteria appeared to be more

stringent at the 60 percent level than at the 100 percent level, and

there also could have been confusion about which of the criteria listed

were required and which were alternatives. The revision eliminates this

confusion, affords more flexibility, and provides a clearer

differentiation between the 100 and 60 percent levels.

We deleted the word ``marked'', modifying loss of muscle strength,

at the 100 percent level of Cushing's syndrome (DC 7907). This is more

objective because the rater does not now have to estimate whether a

reported loss of muscle strength is ``marked.'' The change allows any

reported loss of muscle strength to serve as one of the requirements at

the 100 percent level.

We proposed to retain 100 and 60 percent levels of evaluation for

Cushing's syndrome, as in the previous schedule. One commenter stated

that the condition warrants additional levels of evaluation, especially

when it is secondary to medication.

VA agrees. Although secondary Cushing's syndrome (due to steroid

[[Page 20443]]

therapy) has physical findings indistinguishable from primary Cushing's

syndrome (Harrison, 1723), there is a wide range of severity depending

on the dosage of steroids used, duration of therapy, etc. We have

therefore added a 30 percent level of Cushing's syndrome for those with

milder manifestations: striae, obesity, moon face, glucose intolerance,

and vascular fragility.

The previous schedule required increased intracranial pressure,

hypertension, genital decline and atrophy, hypotrichosis, hypoglycemia,

obesity, and asthenia for a 100 percent evaluation of acromegaly (DC

7908). We proposed to revise the criteria by requiring increased

intracranial pressure, arthropathy, glucose intolerance, hypertension,

cardiomegaly, and visual impairment. One individual felt that

represents a tightening of the requirements and recommended that

cardiomegaly not be required at the 100 percent level.

Upon further consideration, VA has revised the proposed criteria

for the 100 percent level. Cardiomegaly is present in 80 percent of

acromegalics and may be part of the generalized organomegaly that is

sometimes seen (Williams, 272). It is therefore seen commonly enough to

be an appropriate criterion. Hypertension occurs in approximately 20-40

percent of acromegalics, and overactivity of the sympathetic nervous

system has been suggested as a possible etiology. Hypertension and

cardiomegaly are thus independent entities, with apparently different

etiologies (although they may be associated when hypertension results

in cardiomegaly). Because either may be a manifestation of acromegaly,

instead of removing cardiomegaly, we have made cardiomegaly an

alternative criterion to hypertension at the 100 percent level, rather

than requiring both.

The previous schedule required intracranial pressure as one of the

criteria for the 100 percent level of acromegaly, and symptoms of

intracranial pressure in the optic region for the 60 percent level. We

proposed to require both increased intracranial pressure and visual

impairment for the 100 percent level. One commenter, noting that

increased intracranial pressure specifically impairs peripheral vision,

stated that ``visual impairment'' is too broad a term. He said we

should distinguish visual field loss from central visual acuity loss

and other visual deficits.

We agree. The term ``visual impairment'' can have many meanings,

and not all types of visual impairment result from acromegaly. Those

that do occur are the result of localized or generalized increased

intracranial pressure because acromegaly is almost always due to a

pituitary adenoma (Merck, 1064). There may, for example, be a visual

field defect when the pituitary tumor presses on the optic chiasm.

However, it is increased intracranial pressure from the tumor that is

the underlying cause of any visual impairment that is present, and the

increased pressure is at times manifested only by findings other than

visual impairment. We have therefore revised the criteria by deleting

the requirement for both increased intracranial pressure and visual

impairment in favor of a more flexible, but also more specific,

requirement for evidence of increased intracranial pressure ``such as

visual field defect.'' This will allow other possible manifestations of

increased intracranial pressure, such as papilledema, headaches, etc.,

to satisfy one of the requirements for a 100 percent level of

evaluation and will exclude as criteria visual impairments that have no

relationship to acromegaly.

In further response to the general request for more objective

criteria, we have revised the proposed criteria for diabetes insipidus

(DC 7909) by removing the subjective terms ``excessive thirst'' and

``severe polyuria'' wherever they occurred in favor of the more

objective phrase ``polyuria with near-continuous thirst.'' We also

revised the criteria for the 100 percent evaluation, which we proposed

to be: ``excessive thirst and severe polyuria requiring parenteral

hydration therapy, episodes of syncope, and low systolic and diastolic

blood pressure'' to a requirement for ``polyuria with near-continuous

thirst, and more than two documented episodes of dehydration requiring

parenteral hydration in the past year.'' The excretion of large

quantities of very dilute urine is the underlying abnormality in this

condition, and this leads to dehydration and hypovolemia. Syncope and

low blood pressure are not isolated separate signs but are common

effects of dehydration, and these criteria therefore encompass both

parenteral hydration therapy, used to treat dehydration, and two of the

signs of dehydration (syncope and low blood pressure).

The proposed criteria for the 60 percent level included excessive

thirst, polyuria, dehydration, serum osmolality greater than 295 mOsm/

kg., and urine osmolality less than 38 mOsms/kg. We revised these to a

requirement for one or two documented episodes of dehydration requiring

parenteral hydration in the past year, in addition to the basic

requirements of thirst and polyuria. Serum and urine osmolality levels

are objective criteria, but osmolality levels were not proposed as

criteria for the 20, 40, or 100 percent levels. The change in favor of

specifying the number of episodes of dehydration provides criteria that

are more parallel and comparable from one level to the next, and are

objective enough that the additional laboratory tests are not needed to

determine a 60 percent level of severity. Finally, we have changed the

proposed requirement for the 40 percent level from ``polyuria,

excessive thirst, and dehydration'' to ``polyuria with near-continuous

thirst, and one or more episodes of dehydration in the past year not

requiring parenteral hydration.''

We have also deleted the words ``increasingly,'' ``severe,''

``pronounced,'' and ``marked'' wherever they occurred in the proposed

evaluation criteria for Addison's disease (DC 7911). These words did

not substantively explain or clarify the evaluation criteria, and the

criteria are clear without them.

The proposed criteria for the 20 percent level of Addison's disease

required either corticosteroid therapy or a combination of weakness and

fatigability. In response to the commenter who said that the schedule

should eliminate the potential for inconsistency, we have added

alternative criteria for the 20 percent level that are parallel to the

higher levels. These criteria require one or two crises or two to four

episodes during the past year, which assures consistency of evaluation

for those with fewer crises or episodes. For further clarity of the

criteria, we added two notes under DC 7911 that define Addisonian

``crises'' and Addisonian ``episodes.''

In the previous schedule, under diabetes mellitus (DC 7913),

regulation or careful regulation of activities (defined as avoidance of

strenuous occupational and recreational activities) was one of the

criteria at the 100 percent and 40 percent evaluation levels. We

proposed ``regulation of activities,'' not further defined, as a

criterion at the 100, 60, and 40 percent levels. One commenter felt

that the proposed change in language made the meaning less clear.

We agree and have retained the definition used in the previous

rating schedule, ``avoidance of strenuous occupational and recreational

activities,'' and included it in the evaluation criteria for the 100

percent level.

The same commenter said that it is meaningless to include

limitation of

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activities as a factor in evaluating diabetes mellitus since

information of this type is not provided in a VA examination.

VA disagrees. VA's Physician's Guide for Disability Evaluation

Examinations is meant to insure that all necessary tests are performed

and that all findings are provided for diagnosis and/or evaluation to

meet the specific requirements of the Schedule for Rating Disabilities

and related programs. It is available to VA and fee-basis examiners

conducting examinations for VA disability benefits. The Guide will be

revised to provide detailed guidelines for examinations reflecting the

revised provisions of the rating schedule. It is incumbent upon the

rating board to return to the examiner reports that lack information

necessary to apply the provisions of the rating schedule (see Sec. 4.2

of 38 CFR).

The proposed 100 percent level for diabetes mellitus required

``repeated'' episodes of ketoacidosis or hypoglycemic reactions

requiring, among other things, ``frequent'' hospital or physician

treatment. We received one comment requesting that we clearly define

``frequent treatment.''

We concur and have revised that portion of the criteria to require

``episodes of ketoacidosis or hypoglycemic reactions requiring at least

three hospitalizations per year or weekly visits to a diabetic care

provider.'' Similarly, for the 60 percent level we have changed the

requirement from ``occasional'' episodes of ketoacidosis or

hypoglycemic reactions to ``episodes of ketoacidosis or hypoglycemic

reactions requiring one or two hospitalizations per year or twice a

month visits to a diabetic care provider.'' The change from a

requirement for physician treatment to a requirement for visits to a

diabetic care provider reflects the fact that diabetics are usually

under the care of a multidisciplinary diabetic team, and at any given

visit may see a nurse practitioner, physician's assistant, etc.

The previous schedule required ``severe complications'' as one of

the alternative criteria for the 100 percent level of diabetes mellitus

(DC 7913). The proposed revision instead required ``severe

complications such as retinopathy, nephropathy, arteriosclerosis, or

neuropathy'' as one of the alternatives. For the 60 percent level the

previous schedule required ``mild complications, such as pruritus ani,

mild vascular deficiencies, or beginning diabetic ocular

disturbances.'' The proposed revision required ``mild complications

such as mild vascular deficiencies or beginning diabetic ocular

disturbances.''

A commenter stated that the word ``severe,'' referring to

complications at the 100 percent level of diabetes mellitus, is a

subjective description that should be changed.

VA agrees. We have revised the language at both the 60 and 100

percent levels to make it more objective, consistent from level to

level, and more precise. We have revised the 100 percent criteria to

require complications that would be compensable if separately evaluated

and the 60 percent criteria to require complications that would not be

compensable if separately evaluated. This is also consistent with note

(1), following DC 7913, that directs that compensable complications of

diabetes mellitus are to be rated separately unless they support a 100

percent evaluation and that noncompensable complications are considered

part of the diabetic process under DC 7913.

One commenter questioned whether a 10 percent evaluation included

those with Type II (adult onset) diabetes without symptoms and not

following a restricted diet.

The criterion we proposed for the 10 percent level, ``controlled by

restricted diet only,'' refers to anyone with diabetes mellitus mild

enough not to require insulin or oral hypoglycemics. For the sake of

greater clarity, we have revised the requirement for zero percent to

``manageable by restricted diet only.'' This does not represent a

substantive change.

A proposed note under diabetes mellitus (DC 7913) stated that when

diabetes mellitus has been definitely diagnosed, a glucose tolerance

test need not be ordered solely for rating purposes. A commenter said

that the term ``definitely diagnosed'' is an entirely subjective

descriptor.

To assure that there is no misunderstanding about the meaning, we

have changed the term ``definitely diagnosed'' to ``conclusively

diagnosed.'' The intent of the term ``conclusively diagnosed'' is to

indicate those individuals who have a diagnosis of diabetes mellitus

that has been established through the usual medical means, both

clinical and laboratory, and to exclude those with insufficient

evidence to support a clear diagnosis.

One commenter stated that the revision should address the basic

concept of lost earnings due to time lost from work. He suggested no

alternatives.

In our judgment, the evaluation criteria we have provided are

clearly linked to lost earnings because they include such things as

periods of hospitalization, episodes of incapacitating symptoms,

muscular weakness, arthropathy, fatigability, etc., all of which may

affect the ability to work. Furthermore, we have provided criteria for

the 100 percent levels that indicate a degree of severity that would

render the average person completely unable to work. Thus the proposed

criteria do address the effects of time lost from work.

An additional general comment was that recently discharged veterans

would be discriminated against by being evaluated under the revised

rating schedule, which he said is ``deliberalized''.

VA disagrees. 38 U. S. C. gives the Secretary the authority to

readjust the schedule of ratings from time to time in accordance with

experience. The significant medical advances that have occurred since

1945 form part of the experience that must be taken into account in

revising the rating schedule. In order to assure fair and consistent

evaluations for veterans, the schedule must reflect actual residuals of

disease or injuries, not what residuals might have been in the past.

Furthermore, Congress foresaw that evaluations might change when the

rating schedule is revised and amended 38 U.S.C. 1155 to prohibit a

reduction in a veteran's disability rating because of a readjustment of

the rating schedule unless an improvement in the disability has been

shown.

The previous schedule had a 100 percent evaluation for one year

following the cessation of treatment of malignancies. We proposed that

the 100 percent evaluation continue indefinitely but that there be a

mandatory VA examination six months following the cessation of

treatment, with any change in evaluation based on that or any

subsequent examination, to be implemented under the provisions of 38

CFR 3.105(e). Three commenters recommended that VA retain the

evaluation criteria from the previous schedule.

We do not concur. An examination six months following the cessation

of treatment affords sufficient time for convalescence and

stabilization of residuals because the rule requires an examination,

not a reduction, six months after the cessation of treatment. In fact,

the rule precludes a reduction at that time because the process of re-

evaluation does not begin until then.

First, there must be a VA examination six months after completion

of treatment. 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

[[Page 20445]]

require a 60 day notice before VA reduces an evaluation and an

additional 60 day notice before the reduced evaluation takes effect.

The revision not only requires a current examination to assure that all

residuals are documented, but also offers the veteran more

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

opportunity to present evidence showing 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.

Because of commenters' concerns, however, we have revised the note

under this code so that it cannot be misinterpreted as requiring a

reduction six months after treatment is terminated. We have also added

to the note a direction to rate on residuals, if there has been no

local recurrence or metastasis, in order to make these provisions

consistent with those we provided for malignancies of the revised

genitourinary system. This is not a substantive change, but has been

made to provide further clarity, as well as internal consistency within

the rating schedule.

One commenter said that VA exceeded its mandate by proposing the

change in convalescence.

VA does not concur. VA's mandate arises from 38 U.S.C. 1155, which

authorizes the Secretary to readjust the rating schedule from time to

time in accordance with experience.

Another commenter objected to the change in convalescence, saying

that the average person would require at least 12 months of

convalescence for brain surgery.

VA does not agree. The convalescent periods adopted in this change

represent, in our judgment, based on sound medical advice, neither the

longest nor shortest periods that any individual patient might require

for recovery, but the usual or normal periods during which a normal

patient, under normal circumstances, would be expected to recover from

a specific condition or surgical procedure. Furthermore, these

convalescent periods represent the point at which the individual

patient's condition is to be evaluated by examination, and do not

preclude an extension of a total evaluation, if appropriate, based on

the individual patient's condition.

Another commenter said that the proposed changes in convalescent

periods appear to be purely economically based.

The myriad of advances in medicine that have occurred since 1945,

such as early ambulation, better surgical techniques, new anesthetics,

and better control of infectious diseases, have led to strikingly

shorter periods of convalescence after both medical and surgical

treatment. The revisions were proposed based on medical considerations;

no cost studies or projections were conducted in conjunction with this

review. Cost cutting was therefore not an issue.

One commenter stated that applying Sec. 3.105(e) will cause

significant problems from an administrative standpoint and will often

significantly lengthen the periods for which a convalescent rate is

paid.

VA believes that the changes in convalescence following treatment

of malignancy where Sec. 3.105(e) must be applied can be implemented

without serious administrative problems. Similar changes are being made

in each body system, and any procedural changes that may be necessary

to implement the new process will be made as needed. We have included

the implementation of the provisions of Sec. 3.105(e) to assure that

veterans are afforded due process before convalescent ratings are

reduced, and if administrative delays do occur from time to time, they

cannot operate to the disadvantage of veterans. Also, since

Sec. 3.105(e) applies only to reductions in ``compensation payments

currently being made,'' it need not be applied in cases where a total

evaluation will be assigned and reduced retroactively.

One commenter urged that VA provide zero percent evaluations for

all diagnostic codes.

We do not agree. On October 6, 1993 VA revised its regulation

addressing the issue of zero percent evaluations (38 CFR 4.31) to

authorize assignment of a zero percent evaluation for any disability in

the rating schedule when minimum requirements for a compensable

evaluation are not met. In general, that regulatory provision precludes

the need for zero percent evaluation criteria. We have retained zero

percent evaluation criteria only when necessary to give the rater clear

and unambiguous instructions on rating where it might otherwise be

unclear whether commonly occurring minor findings warrant a compensable

evaluation.

One commenter noted that veterans are receiving diagnoses of

hyperlipidemia, elevated triglycerides, and elevated cholesterol, and

the commenter asked that we address the handling of claims for these

findings.

The diagnoses listed by the commenter are actually laboratory test

results, and are not, in and of themselves, disabilities. They are,

therefore, not appropriate entities for the rating schedule to address.

In addition, they have no special relationship to the endocrine system.

We have made several additional changes based on our own review of

the proposed regulation. For example, we edited the proposed note under

malignant neoplasm (DC 7914) by modifying the sentence ``Any change in

evaluation based upon that examination shall be subject to the

provisions of Sec. 3.105(e) of this chapter'' to ``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.'' The

change assures that the veteran will be given the notices described

above regardless of when an examination leading to a proposed change in

evaluation is done and is consistent with changes we have made in the

revision of other portions of the rating schedule. This represents no

substantive change.

The previous schedule had a note under DC 7900, hyperthyroidism,

addressing the issue of evaluating hyperthyroid heart disease if

disease of the heart predominates. We have expanded the note for

clarity by adding ``if doing so would result in a higher evaluation

than using the criteria above.''

We also made a nonsubstantive editorial change in the note

following pheochromocytoma (DC 7918) from the proposal to rate

hyperpituitarism, hyperaldosteronism and pheochromocytoma as malignant

or benign neoplasm under DC 7914 or 7915, whichever is applicable, to a

direction to evaluate those conditions under benign or malignant

neoplasms as appropriate.

For the sake of greater clarity and ease of comparison, we

rearranged the order of the criteria for diabetes mellitus (DC 7913)

regarding need for insulin or an oral hypoglycemic agent, diet, and

regulation of activities, putting them in the same order at all levels

where they appear. This does not represent a substantive change.

We proposed that constipation be one of the criteria for the 60

percent level of hypoparathyroidism (DC 7905). However, because

standard medical textbooks such as ``The Merck Manual'' and ``Williams

Textbook of Endocrinology'' do not include it as a characteristic

clinical manifestation of hypoparathyroidism, we have concluded that it

is not appropriate as

[[Page 20446]]

part of VA's evaluation criteria, and we have, therefore, removed it.

We proposed that DC 7901 (thyroid gland, toxic adenoma of) be rated

as DC 7900 (hyperthyroidism). For the convenience of rating

specialists, we have instead repeated the rating criteria for DC 7900

under DC 7901. For the same reason, we have repeated the note under DC

7914, which explains evaluation of malignant neoplasms, under C-cell

hyperplasia of the thyroid (DC 7919), rather than instructing to rate

C-cell hyperplasia of the thyroid as malignant neoplasm, as we

proposed. These changes reduce the risk of error because the necessary

criteria are closely associated with the diagnostic code rather than on

another page, and they also save time for the rating specialist. They

do not represent substantive changes.

We have made additional nonsubstantive editorial changes in

language by substituting ``evaluate'' for ``rate'' in several instances

and by changing ``neoplasms'' to ``neoplasm'' in DC's 7914 and 7915,

for internal consistency in the rating schedule.

VA appreciates the comments submitted in response to the proposed

rule, which is now adopted with the amendments noted above.

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 regulatory amendment has been reviewed by the Office of

Management and Budget under the provisions of Executive Order 12866,

Regulatory Planning and Review, dated September 30, 1993.

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: December 5, 1995.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 4, subpart

B, is 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.

Subpart B--Disability Ratings

2. Section 4.119 is revised to read as follows:

Sec. 4.119 Schedule of ratings--endocrine system.

------------------------------------------------------------------------

Rating

------------------------------------------------------------------------

7900 Hyperthyroidism

Thyroid enlargement, tachycardia (more than 100 beats per

minute), eye involvement, muscular weakness, loss of weight,

and sympathetic nervous system, cardiovascular, or

astrointestinal symptoms..................................... 100

Emotional instability, tachycardia, fatigability, and

increased pulse pressure or blood pressure................... 60

Tachycardia, tremor, and increased pulse pressure or blood

pressure..................................................... 30

Tachycardia, which may be intermittent, and tremor, or;

continuous medication required for control................... 10

Note (1): If disease of the heart is the predominant finding,

evaluate as hyperthyroid heart disease (DC 7008) if doing so

would result in a higher evaluation than using the criteria

above.

Note (2): If ophthalmopathy is the sole finding, evaluate as

field vision, impairment of (DC 6080); diplopia (DC 6090); or

impairment of central visual acuity (DC 6061-6079).

7901 Thyroid gland, toxic adenoma of

Thyroid enlargement, tachycardia (more than 100 beats per

minute), eye involvement, muscular weakness, loss of weight,

and sympathetic nervous system, cardiovascular, or

gastrointestinal symptoms.................................... 100

Emotional instability, tachycardia, fatigability, and

increased pulse pressure or blood pressure................... 60

Tachycardia, tremor, and increased pulse pressure or blood

pressure..................................................... 30

Tachycardia, which may be intermittent, and tremor, or;

continuous medication required for control................... 10

Note (1): If disease of the heart is the predominant finding,

evaluate as hyperthyroid heart disease (DC 7008) if doing so

would result in a higher evaluation than using the criteria

above.

Note (2): If ophthalmopathy is the sole finding, evaluate as

field vision, impairment of (DC 6080); diplopia (DC 6090); or

impairment of central visual acuity (DC 6061-6079).

7902 Thyroid gland, nontoxic adenoma of

With disfigurement of the head or neck........................ 20

Without disfigurement of the head or neck..................... 0

Note: If there are symptoms due to pressure on adjacent organs

such as the trachea, larynx, or esophagus, evaluate under the

diagnostic code for disability of that organ, if doing so

would result in a higher evaluation than using this

diagnostic code.

7903 Hypothyroidism

Cold intolerance, muscular weakness, cardiovascular

involvement, mental disturbance (dementia, slowing of

thought, depression), bradycardia (less than 60 beats per

minute), and sleepiness...................................... 100

Muscular weakness, mental disturbance, and weight gain........ 60

Fatigability, constipation, and mental sluggishness........... 30

Fatigability, or; continuous medication required for control.. 10

7904 Hyperparathyroidism

Generalized decalcification of bones, kidney stones,

gastrointestinal symptoms (nausea, vomiting, anorexia,

constipation, weight loss, or peptic ulcer), and weakness.... 100

Gastrointestinal symptoms and weakness........................ 60

Continuous medication required for control.................... 10

Note: Following surgery or treatment, evaluate as digestive,

skeletal, renal, or cardiovascular residuals or as endocrine

dysfunction.

7905 Hypoparathyroidism

Marked neuromuscular excitability (such as convulsions,

muscular spasms (tetany), or laryngeal stridor) plus either

cataract or evidence of increased intracranial pressure (such

as papilledema).............................................. 100

Marked neuromuscular excitability, or; paresthesias (of arms,

legs, or circumoral area) plus either cataract or evidence of

increased intracranial pressure.............................. 60

Continuous medication required for control.................... 10

7907 Cushing's syndrome

As active, progressive disease including loss of muscle

strength, areas of osteoporosis, hypertension, weakness, and

enlargement of pituitary or adrenal gland.................... 100

Loss of muscle strength and enlargement of pituitary or

adrenal gland................................................ 60

With striae, obesity, moon face, glucose intolerance, and

vascular fragility........................................... 30

Note: With recovery or control, evaluate as residuals of

adrenal insufficiency or cardiovascular, psychiatric, skin,

or skeletal complications under appropriate diagnostic code.

7908 Acromegaly

[[Page 20447]]

Evidence of increased intracranial pressure (such as visual

field defect), arthropathy, glucose intolerance, and either

hypertension or cardiomegaly................................. 100

Arthropathy, glucose intolerance, and hypertension............ 60

Enlargement of acral parts or overgrowth of long bones, and

enlarged sella turcica....................................... 30

7909 Diabetes insipidus

Polyuria with near-continuous thirst, and more than two

documented episodes of dehydration requiring parenteral

hydration in the past year................................... 100

Polyuria with near-continuous thirst, and one or two

documented episodes of dehydration requiring parenteral

hydration in the past year................................... 60

Polyuria with near-continuous thirst, and one or more episodes

of dehydration in the past year not requiring parenteral

hydration.................................................... 40

Polyuria with near-continuous thirst.......................... 20

7911 Addison's disease (Adrenal Cortical Hypofunction)

Four or more crises during the past year...................... 60

Three crises during the past year, or; five or more episodes

during the past year......................................... 40

One or two crises during the past year, or; two to four

episodes during the past year, or; weakness and fatigability,

or; corticosteroid therapy required for control.............. 20

Note (1): An Addisonian ``crisis'' consists of the rapid onset

of peripheral vascular collapse (with acute hypotension and

shock), with findings that may include: anorexia; nausea;

vomiting; dehydration; profound weakness; pain in abdomen,

legs, and back; fever; apathy, and depressed mentation with

possible progression to coma, renal shutdown, and death.

Note (2): An Addisonian ``episode,'' for VA purposes, is a

less acute and less severe event than an Addisonian crisis

and may consist of anorexia, nausea, vomiting, diarrhea,

dehydration, weakness, malaise, orthostatic hypotension, or

hypoglycemia, but no peripheral vascular collapse.

Note (3): Tuberculous Addison's disease will be evaluated as

active or inactive tuberculosis. If inactive, these

evaluations are not to be combined with the graduated ratings

of 50 percent or 30 percent for non-pulmonary tuberculosis

specified under Sec. 4.88b. Assign the higher rating.

7912 Pluriglandular syndrome

Evaluate according to major manifestations.

7913 Diabetes mellitus

Requiring more than one daily injection of insulin, restricted

diet, and regulation of activities (avoidance of strenuous

occupational and recreational activities) with episodes of

ketoacidosis or hypoglycemic reactions requiring at least

three hospitalizations per year or weekly visits to a

diabetic care provider, plus either progressive loss of

weight and strength or complications that would be

compensable if separately evaluated.......................... 100

Requiring insulin, restricted diet, and regulation of

activities with episodes of ketoacidosis or hypoglycemic

reactions requiring one or two hospitalizations per year or

twice a month visits to a diabetic care provider, plus

complications that would not be compensable if separately

evaluated.................................................... 60

Requiring insulin, restricted diet, and regulation of

activities................................................... 40

Requiring insulin and restricted diet, or; oral hypoglycemic

agent and restricted diet.................................... 20

Manageable by restricted diet only............................ 10

Note (1): Evaluate compensable complications of diabetes

separately unless they are part of the criteria used to

support a 100 percent evaluation. Noncompensable

complications are considered part of the diabetic process

under diagnostic code 7913.

Note (2): When diabetes mellitus has been conclusively

diagnosed, do not request a glucose tolerance test solely for

rating purposes.

7914 Neoplasm, malignant, any specified part of the endocrine

system......................................................... 100

Note: A rating of 100 percent shall continue beyond the

cessation of any surgical, X-ray, antineoplastic chemotherapy

or other 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, rate on residuals.

7915 Neoplasm, benign, any specified part of the endocrine

system rate as residuals of endocrine dysfunction.

7916 Hyperpituitarism (prolactin secreting pituitary

dysfunction)

7917 Hyperaldosteronism (benign or malignant)

7918 Pheochromocytoma (benign or malignant)

Note: Evaluate diagnostic codes 7916, 7917, and 7918 as

malignant or benign neoplasm as appropriate.

7919 C-cell hyperplasia of the thyroid......................... 100

Note: A rating of 100 percent shall continue beyond the

cessation of any surgical, X-ray, antineoplastic chemotherapy

or other 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, rate on residuals.

------------------------------------------------------------------------

[FR Doc. 96-11281 Filed 5-6-96; 8:45 am]

BILLING CODE 8320-01-P