Schedule for Rating Disabilities; Infectious Diseases, Immune Disorders and Nutritional Deficiencies (Systemic Conditions)

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AE95

Schedule for Rating Disabilities; Infectious Diseases, Immune

Disorders and Nutritional Deficiencies (Systemic Conditions)

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 concerning

Infectious Diseases, Immune Disorders and Nutritional Deficiencies

(formerly entitled Systemic Conditions). The effect of this action is

to update this portion of the rating schedule to ensure that it uses

current medical terminology, unambiguous criteria, and that it reflects

medical advances that have occurred since the last review.

EFFECTIVE DATE: This amendment is effective August 30, 1996.

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) 273-7230.

SUPPLEMENTARY INFORMATION: As part of the first comprehensive review of

its Schedule for Rating Disabilities since 1945, VA published in the

Federal Register of April 30, 1993 (58 FR 26083-87) a proposal to amend

the portion of the Schedule for Rating Disabilities concerning Systemic

Conditions. This document has renamed that portion of the rating

schedule as Infectious Diseases, Immune Disorders and Nutritional

Deficiencies. Interested persons were invited to submit written

comments on or before June 29, 1993. We received comments from the

Disabled American Veterans and the Paralyzed Veterans of America.

The final rule includes a diagnostic code (DC 6354) and diagnostic

criteria (38 CFR 4.88a) for chronic fatigue syndrome. These provisions

for chronic fatigue syndrome were added to the portion of the rating

schedule then titled Systemic Conditions by a final rule published in

the Federal Register of July 19, 1995 (60 FR 37012-13).

We proposed to reduce or eliminate the convalescence periods for

several infectious diseases, and both commenters disagreed with those

proposals.

We proposed to change the convalescent periods for Asiatic cholera

(DC 6300), Bartonellosis (DC 6306), and scrub typhus (DC 6317) from six

months to three months, noting that when treated in a straightforward

manner, the active phase of the diseases resolves quickly, and need for

convalescence is typically much less than six months. One commenter

questioned what ``treated in a straightforward manner'' means. A second

commenter felt that a shorter convalescent period for Bartonellosis is

not justified because convalescence is slow, and gradual normalization

of red blood cell mass begins three to six weeks after onset of

disease.

The six-month periods of convalescence for these conditions were

established prior to the modern antibiotic era, and were appropriate at

the time. However, with modern therapy, the course of these infectious

diseases has dramatically improved. Scrub typhus deaths are rare, and

convalescence is short (``Harrison's Principles of Internal Medicine''

760 (Jean D. Wilson, M.D., et al., eds., 12th ed. 1991)); with specific

therapy, recovery is prompt and uneventful (``The Merck Manual'' 173

16th ed. 1992). Similarly, treatment for Asiatic cholera is simple, and

the condition is self-limited to a few days (Harrison, 632).

Bartonellosis responds rapidly to antibiotics and the red blood cells

stabilize in about six weeks (Harrison, 634). While the characteristic

severe anemia that occurs in an individual with Bartonellosis may

require time after treatment to resolve, three months is an adequate

period of convalescence in the average person. We have therefore

adopted the proposed provisions, which provide for a three-month

convalescent evaluation for these conditions.

The previous schedule called for a 100 percent evaluation for

leprosy (DC 6302) as active disease and for one year's convalescence.

We proposed to remove the one-year period of convalescence. One

commenter said that a convalescent period should be retained because of

the serious nature of the disease, and another questioned whether there

is a medical basis for the change.

On further consideration, VA agrees that a continued 100 percent

evaluation

[[Page 39874]]

for convalescence of leprosy is warranted because the disease is

debilitating, sometimes extremely so, and a period of convalescence is

warranted to allow recovery of strength. Accordingly, we have amended

DC 6302 to continue the 100 percent evaluation indefinitely when the

disease is no longer active. Further, the final rule amends DC 6302 to

require an examination six months after the date that an examining

physician has determined the leprosy is inactive. Any change in

evaluation will be carried out under the provisions of Sec. 3.105(e).

This will assure that a total evaluation will continue long enough to

allow recovery from the debilitating effects of the disease, and will

also assure that the extent of any residual impairment is documented by

examination. This method of determining the duration of the period of

convalescence is consistent with the method we have used following

treatment of malignancies, in previously published rules that revised

other sections of the rating schedule.

The previous schedule provided a 100 percent evaluation for

visceral leishmaniasis (DC 6301) as active disease and for one year's

convalescence. We proposed to remove the one-year period of

convalescence. One commenter questioned whether there is any medical

basis for the change. Another commenter said that visceral

leishmaniasis is still a debilitating disease and warrants a reasonable

convalescent period.

In view of the frequency of debilitation in visceral leishmaniasis,

with findings such as hepatosplenomegaly, emaciation, and pancytopenia,

we have determined that a period of convalescence for DC 6302 similar

to that for leprosy is appropriate. We have added a note to continue

the 100 percent evaluation indefinitely when treatment for active

leishmaniasis has been completed, and to require an examination six

months after cessation of treatment. Any change in evaluation will be

carried out under the provisions of Sec. 3.105(e). This will assure

that a total evaluation will continue long enough to allow recovery

from the debilitating effects of the disease, and will also assure that

the extent of any residual impairment is documented by examination.

Another commenter stated that any reduction in the convalescence

period exceeds the Congressional mandate that ratings be based upon

``average impairment.''

VA does not concur. The convalescence periods adopted in this

change, as discussed above, represent, in our judgment, neither the

longest nor the shortest periods that any individual patient might

require for recovery, but the usual or normal periods during which an

average patient, under normal circumstances, would be expected to

recover from a specific condition.

Although the proposed regulation made only editorial changes to the

evaluation criteria for beriberi, DC 6314, both commenters argued that

the evaluation criteria at the 30 and 60 percent and 60 and 100 percent

levels for beriberi were nearly identical and therefore unrealistic.

We agree and have revised the evaluation criteria for beriberi to

reflect the different levels of disability with specific clinical

symptoms. A 100 percent evaluation requires congestive heart failure,

anasarca, or Wernicke-Korsakoff syndrome. The 60 percent level requires

cardiomegaly or peripheral neuropathy with footdrop or atrophy of thigh

or calf muscles. The 30 percent level requires peripheral neuropathy

with absent knee or ankle jerk and loss of sensation or weakness,

fatigue, anorexia, dizziness, heaviness and stiffness of legs, headache

or sleep disturbance. The revised criteria establish clear distinctions

between the evaluation levels and will allow for more realistic and

consistent evaluations.

We proposed to delete the previous evaluation formula for

filariasis, DC 6305, which provided a 100 percent evaluation for the

initial infection or severe recurrences, 60 and 30 percent evaluations

for the chronic form of the disease with beginning permanent deformity

or while symptomatic, and a zero percent evaluation if the disease

subsided after a single attack. A second set of evaluation criteria for

permanent deformities of an extremity or of the genitalia provided

levels of 60 percent for ``severe,'' 30 percent for ``moderate,'' and

10 percent for ``mild,'' and these evaluations for permanent

deformities could be combined among themselves to cover multiple

involvements. We proposed to provide a 100 percent evaluation while the

disease is active, and to rate the residuals of the disease under the

appropriate body system. One commenter felt that deleting the formula

does not improve the schedule because the peculiarities of the disease

require more detailed evaluation criteria.

We do not agree. The previous dual formula, plus the subjectivity

of criteria such as ``mild'', may have resulted in inconsistent

evaluations.

Any time the disease is active, it produces total disability, and

this is reflected in the new criteria. The most equitable and

consistent way to evaluate chronic residuals such as lymphadenitis or

deformities of an extremity or of the genitalia, however, is to use

evaluation criteria specifically intended for the body system affected.

While allowing for the broadest possible scope of evaluations, this

method will also assure more consistent evaluations because they will

be based on more objective criteria.

One commenter felt that the criteria for evaluation of HIV-Related

Illness, DC 6351, should be based on the 1993 revised classification

system for the disease issued by the Center for Disease Control (CDC).

VA's Schedule for Rating Disabilities is designed to evaluate

functional impairment (See 38 CFR 4.10), whereas the CDC classification

system for HIV infection is designed to guide the medical management of

persons infected with HIV and for HIV infection surveillance. Under the

CDC classification system, an individual is placed in one of three

categories based on the presence of clinical conditions associated with

HIV infection and on T4 cell counts. The condition is always classified

at the most advanced category it has reached even though the specific

complication or infection warranting the classification subsequently

resolves. That system is clearly not compatible with VA's Schedule for

Rating Disabilities because the severity of the functional impairment

caused by the conditions used to categorize the HIV infection under the

CDC system varies significantly.

One commenter, noting that there were no zero percent evaluations

proposed for any conditions other than HIV-Related Illness, suggested

that we add zero percent evaluations for every diagnostic code in this

section.

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 unless the predictable effects of a particular

condition are likely to result in a situation where a rating agency

must determine whether a commonly occurring finding more nearly

approximates the requirements for a ten percent or zero percent

evaluation. (See 38 CFR 4.7.) Such a situation is the presence of

lymphadenopathy in an otherwise asymptomatic individual who is HIV

positive. In our judgment, lymphadenopathy does not warrant a ten

percent evaluation, and in order to

[[Page 39875]]

ensure that rating agencies consistently assign a zero percent

evaluation, we have included zero percent evaluation criteria under DC

6351. For the five other conditions in this section where we have

provided multiple evaluation levels, in our judgment there are no

commonly occurring effects that would make it unclear as to whether a

zero or higher evaluation would be warranted.

The proposed rule, which would require stomatitis, persistent

diarrhea and symmetrical dermatitis for a 40 percent evaluation for

pellagra, DC 6315, was substantially unchanged from the previous rule.

One commenter felt that the requirement of ``persistent diarrhea''

is too stringent. He noted that the term ``persistent'' is qualitative

and suggested that it be replaced with a more reasonable, quantifiable

alternative, but offered no alternate language for us to consider.

We agree in principle and have revised the criteria for both

pellagra and avitaminosis (DC 6313), which have the same evaluation

formula. While retaining the five evaluation levels, we have removed

the adjectives modifying diarrhea in the 40 and 20 percent levels, and

deleted the requirement for diarrhea at the 10 percent level. Without

changing the essence of the criteria, this will give the rater clear

instructions as to how to evaluate the disability and eliminate

qualitative adjectives from the evaluation criteria.

The previous evaluation formula for brucellosis, DC 6316, provided

a 100 percent evaluation for the active febrile disease with

complications such as arthritis; 50, 30 and 10 percent evaluations for

the chronic form of the disease; and a Note instructing the rating

specialist to rate complications separately. We proposed to revise this

formula to provide a 100 percent evaluation while the disease is

active, and to rate the residuals of the disease under the appropriate

body system. One commenter felt that unless the previous evaluation

criteria for brucellosis are retained, recurrent febrile undulation

cannot be properly evaluated.

We disagree. The criteria in the previous rating schedule could

lead to inconsistency in evaluations because arthritis and other

complications were included as part of a 100 percent evaluation, but

were also identified in the note as complications to be rated

separately. By providing clear instructions to evaluate the active form

of the disease as totally disabling and to rate residuals under the

appropriate body system, any ambiguity is removed from this evaluation

formula. The undulating or intermittent fever form of this disease is

rare (Cecil, Textbook of Medicine, 19th edition, p.1727-8), but, in any

event, it would be evaluated as the active incapacitating febrile stage

and would be assigned a 100 percent evaluation.

We have revised the note proposed under DC 6350 (lupus

erythematosus), to make it more clear that lupus erythematosus is

evaluated either by combining the evaluations for residuals or by

evaluating under the DC 6350 criteria, whichever method results in a

higher evaluation.

VA appreciates the comments submitted in response to the proposed

rule, which is now adopted as a final rule with the changes 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, 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 action has been reviewed by the Office of

Management and Budget under Executive Order 12866, Regulatory Planning

and Review, dated September 30, 1993.

The Catalog of Federal Domestic Assistance numbers are 64.104

and 64.109.

List of Subjects in 38 CFR Part 4

Disability benefits, Individuals with disabilities, Pensions,

Veterans.

Approved: March 7, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

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

as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

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

Authority: 38 U.S.C. 1155.

Subpart B--Disability Ratings

2. The undesignated center heading appearing before Sec. 4.88 is

revised to read as follows:

Infectious Diseases, Immune Disorders and Nutritional Deficiencies

4.88 [Removed and reserved]

3. Section 4.88 is removed and that section is reserved.

4. Section 4.88b is revised to read as follows:

Sec. 4.88b Schedule of ratings--infectious diseases, immune disorders

and nutritional deficiencies.

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Rating

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6300 Cholera, Asiatic:

As active disease, and for 3 months convalescence...... 100

Thereafter rate residuals such as renal necrosis under the

appropriate system

6301 Visceral Leishmaniasis:

During treatment for active disease.................... 100

Note: A 100 percent evaluation shall continue beyond the cessation

of treatment for active disease. 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. Rate residuals

such as liver damage or lymphadenopathy under the appropriate

system

6302 Leprosy (Hansen's Disease):

As active disease...................................... 100

Note: A 100 percent evaluation shall continue beyond the date that

an examining physician has determined that this has become

inactive. Six months after the date of inactivity, 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. Rate residuals such as skin lesions or peripheral

neuropathy under the appropriate system

6304 Malaria:

As active disease...................................... 100

[[Page 39876]]

Note: The diagnosis of malaria depends on the identification of the

malarial parasites in blood smears. If the veteran served in an

endemic area and presents signs and symptoms compatible with

malaria, the diagnosis may be based on clinical grounds alone.

Relapses must be confirmed by the presence of malarial parasites in

blood smears

Thereafter rate residuals such as liver or spleen damage under the

appropriate system

6305 Lymphatic Filariasis:

As active disease...................................... 100

Thereafter rate residuals such as epididymitis or lymphangitis under

the appropriate system

6306 Bartonellosis:

As active disease, and for 3 months convalescence...... 100

Thereafter rate residuals such as skin lesions under the appropriate

system

6307 Plague:

As active disease...................................... 100

Thereafter rate residuals such as lymphadenopathy under the

appropriate system

6308 Relapsing Fever:

As active disease...................................... 100

Thereafter rate residuals such as liver or spleen damage or central

nervous system involvement under the appropriate system

6309 Rheumatic fever:

As active disease...................................... 100

Thereafter rate residuals such as heart damage under the appropriate

system

6310 Syphilis, and other treponemal infections:

Rate the complications of nervous system, vascular system, eyes or

ears. (See DC 7004, syphilitic heart disease, DC 8013,

cerebrospinal syphilis, DC 8014, meningovascular syphilis, DC 8015,

tabes dorsalis, and DC 9301, dementia associated with central

nervous system syphilis)

6311 Tuberculosis, miliary:

As active disease...................................... 100

Inactive: See Secs. 4.88c and 4.89.

6313 Avitaminosis:

Marked mental changes, moist dermatitis, inability to

retain adequate nourishment, exhaustion, and cachexia. 100

With all of the symptoms listed below, plus mental

symptoms and impaired bodily vigor.................... 60

With stomatitis, diarrhea, and symmetrical dermatitis.. 40

With stomatitis, or achlorhydria, or diarrhea.......... 20

Confirmed diagnosis with nonspecific symptoms such as:

decreased appetite, weight loss, abdominal discomfort,

weakness, inability to concentrate and irritability... 10

6314 Beriberi:

As active disease:

With congestive heart failure, anasarca, or Wernicke-

Korsakoff syndrome.................................... 100

With cardiomegaly, or; with peripheral neuropathy with

footdrop or atrophy of thigh or calf muscles.......... 60

With peripheral neuropathy with absent knee or ankle

jerks and loss of sensation, or; with symptoms such as

weakness, fatigue, anorexia, dizziness, heaviness and

stiffness of legs, headache or sleep disturbance...... 30

Thereafter rate residuals under the appropriate body

system.

6315 Pellagra:

Marked mental changes, moist dermatitis, inability to

retain adequate nourishment, exhaustion, and cachexia. 100

With all of the symptoms listed below, plus mental

symptoms and impaired bodily vigor.................... 60

With stomatitis, diarrhea, and symmetrical dermatitis.. 40

With stomatitis, or achlorhydria, or diarrhea.......... 20

Confirmed diagnosis with nonspecific symptoms such as:

decreased appetite, weight loss, abdominal discomfort,

weakness, inability to concentrate and irritability... 10

6316 Brucellosis:

As active disease...................................... 100

Thereafter rate residuals such as liver or spleen damage or

meningitis under the appropriate system

6317 Typhus, scrub:

As active disease, and for 3 months convalescence...... 100

Thereafter rate residuals such as spleen damage or skin conditions

under the appropriate system

6318 Melioidosis:

As active disease...................................... 100

Thereafter rate residuals such as arthritis, lung lesions or

meningitis under the appropriate system

6319 Lyme Disease:

As active disease...................................... 100

Thereafter rate residuals such as arthritis under the appropriate

system

6320 Parasitic diseases otherwise not specified:

As active disease...................................... 100

Thereafter rate residuals such as spleen or liver damage under the

appropriate system

6350 Lupus erythematosus, systemic (disseminated):

Not to be combined with ratings under DC 7809 Acute,

with frequent exacerbations, producing severe

impairment of health.................................. 100

Exacerbations lasting a week or more, 2 or 3 times per

year.................................................. 60

Exacerbations once or twice a year or symptomatic

during the past 2 years............................... 10

Note: Evaluate this condition either by combining the evaluations

for residuals under the appropriate system, or by evaluating DC

6350, whichever method results in a higher evaluation

6351 HIV-Related Illness:

AIDS with recurrent opportunistic infections or with

secondary diseases afflicting multiple body systems;

HIV-related illness with debility and progressive

weight loss, without remission, or few or brief

remissions............................................ 100

Refractory constitutional symptoms, diarrhea, and

pathological weight loss, or; minimum rating following

development of AIDS-related opportunistic infection or

neoplasm.............................................. 60

[[Page 39877]]

Recurrent constitutional symptoms, intermittent

diarrhea, and on approved medication(s), or; minimum

rating with T4 cell count less than 200, or Hairy Cell

Leukoplakia, or Oral Candidiasis...................... 30

Following development of definite medical symptoms, T4

cell of 200 or more and less than 500, and on approved

medication(s), or; with evidence of depression or

memory loss with employment limitations............... 10

Asymptomatic, following initial diagnosis of HIV

infection, with or without lymphadenopathy or

decreased T4 cell count............................... 0

Note (1): The term ``approved medication(s)'' includes medications

prescribed as part of a research protocol at an accredited medical

institution.

Note (2): Psychiatric or central nervous system manifestations,

opportunistic infections, and neoplasms may be rated separately

under appropriate codes if higher overall evaluation results, but

not in combination with percentages otherwise assignable above

6354 Chronic Fatigue Syndrome (CFS):

Debilitating fatigue, cognitive impairments (such as inability to

concentrate, forgetfulness, confusion), or a combination of other

signs and symptoms:

Which are nearly constant and so severe as to restrict

routine daily activities almost completely and which

may occasionally preclude self-care................... 100

Which are nearly constant and restrict routine daily

activities to less than 50 percent of the pre-illness

level, or; which wax and wane, resulting in periods of

incapacitation of at least six weeks total duration

per year.............................................. 60

Which are nearly constant and restrict routine daily

activities to 50 to 75 percent of the pre-illness

level, or; which wax and wane, resulting in periods of

incapacitation of at least four but less than six

weeks total duration per year......................... 40

Which are nearly constant and restrict routine daily

activities by less than 25 percent of the pre-illness

level, or; which wax and wane, resulting in periods of

incapacitation of at least two but less than four

weeks total duration per year......................... 20

Which wax and wane but result in periods of

incapacitation of at least one but less than two weeks

total duration per year, or; symptoms controlled by

continuous medication................................. 10

Note: For the purpose of evaluating this disability, the condition

will be considered incapacitating only while it requires bed rest

and treatment by a physician.

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[FR Doc. 96-19386 Filed 7-30-96; 8:45 am]

BILLING CODE 8320-01-P