Schedule for Rating Disabilities; Respiratory System

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AE94

Schedule for Rating Disabilities; Respiratory System

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 Respiratory System. The intended effect of this action is to update

the respiratory 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 October 7, 1996.

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

Regulations Staff (213A), 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 its first comprehensive review of

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

4.96 and 4.97, which address the respiratory system. The proposal was

published in the Federal Register of January 19, 1993 (58 FR 4962-69).

Interested persons were invited to submit written comments on or before

March 22, 1993. We received comments from Paralyzed Veterans of

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

American Legion, several VA employees, and one member of the general

public.

One commenter suggested a need for a zero percent level for all

conditions.

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

criteria for every condition. VA believes that it is useful to include

a zero percent evaluation only if it is necessary to give the rating

board clear and unambiguous instructions on rating where it might

otherwise be unclear whether commonly occurring minor findings warrant

a zero percent or higher evaluation.

One commenter suggested that the proposed revision would

discriminate against veterans whose initial evaluations would be

assigned under a new and deliberalized schedule.

Significant medical advances have occurred since the last

comprehensive review of the rating schedule, and it is appropriate to

take these advances into account in revising the rating schedule. Doing

so is, in fact, one of the primary reasons for conducting this review.

In our judgment, veterans will not be discriminated against by having

their disabilities evaluated under criteria which reflect the effects

of those medical advances. For veterans evaluated under the former

criteria, Congress amended 38 U.S.C. 1155 to prohibit a reduction in a

veteran's disability rating because of a readjustment of the rating

schedule

[[Page 46721]]

unless an improvement in the disability has been shown.

One commenter stated that rating schedule revisions appear to be

based on optimum success in overcoming the effects of disease rather

than average impairment.

VA disagrees. 38 U.S.C. 1155 directs that ``ratings shall be based,

as far as practicable, upon the average impairments of earning capacity

resulting from such injuries in civil occupations.'' The word

``average,'' as used in the statute, refers to the ``usual or normal

kind, amount, quantity, rate, etc.'' (``Webster's New World

Dictionary,'' Third College Edition). To the extent possible, we have

based our changes on average or usual or normal courses of disease and

recovery.

The previous schedule provided a two-year period of total

evaluation following the cessation of treatment for malignant neoplasms

of the respiratory tract (DC 6819). As with malignant neoplasms in

other revised sections of the rating schedule, we proposed that a 100-

percent rating continue following the cessation of surgical, X-ray,

antineoplastic chemotherapy or other therapeutic procedure, with a

mandatory examination six months following cessation of treatment.

Before any change in evaluation based upon the examination can be made,

the provisions of Sec. 3.105(e) must be implemented, and evaluation is

made on residuals if there has been no metastasis or recurrence. We

received a number of comments about that proposed change. One commenter

said that six months is not a long enough convalescence.

We believe that an examination six months following the cessation

of treatment affords sufficient time for convalescence and

stabilization of residuals, particularly since the rule requires only

an examination, not a reduction, at that time. 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 require a 60-day notice before VA reduces an evaluation and an

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

The revised procedure, by requiring an examination, will not only

assure that all residuals are documented, but also that the veteran

receives timely notice of any proposed action and an expanded

opportunity to present evidence showing that the proposed action should

not be taken or should be mitigated. In our judgment, this method will

better ensure that actual residual disabilities and recuperation times

are taken into account because they will be documented on the required

examination, and the veteran will have better opportunities to present

evidence demonstrating the current level of disabilities.

We have revised the note under DC 6819 for the sake of clarity and

consistency. We have 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 the revised provisions

for malignancies of the genitourinary system. This is not a substantive

change.

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

administrative problems and will significantly lengthen the period of a

total evaluation when claims are received months or years after

surgery. He felt that a retroactive increase to 100 percent

simultaneously with the initiation of due process under Sec. 3.105(e)

to determine the extent of residual disability would be inconsistent.

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

payments currently being made,'' it does not apply where a total

evaluation is assigned and reduced retroactively.

When the proposed rule was published, we cited improvements in the

administration of chemotherapy and radiation therapy as one reason for

eliminating a fixed convalescent period. One commenter requested that

we justify our statement that chemotherapy has improved.

While the first effective drugs for treating cancer were introduced

in the mid and late 1940's, the results were disappointing because

responses were incomplete and of short duration, and doses were limited

by toxicity (``Cecil Textbook of Medicine'' 1118 (James B. Wyngaarden,

M.D. et al. eds., 19th ed. 1992)). In 1945 there was only one drug

known to be effective--nitrogen mustard. Today there are nearly 50

chemotherapeutic agents in use. The dose and frequency of

administration of the newer agents often differ from those of earlier

agents, and the actions of some of the newer agents are more targeted

in their actions, so that side effects may be fewer and treatment

shorter than before. In use since the 1960's, combination chemotherapy

has also marked a turning point in the effective treatment of

neoplastic disease (``Harrison's Principles of Internal Medicine'' 1587

(Jean D. Wilson, M.D. et al. eds., 12th ed. 1991)).

Another commenter stated that the proposed changes in convalescence

should be justified by medical experts or text citations and that our

medical consultants should be named.

As part of the process of reviewing the rating schedule, we

contracted with an outside consultant, Abt Associates Incorporated, to

submit recommendations for revisions to those portions of the rating

schedule dealing with the respiratory system. We also received advice

and suggestions from physicians in the Veterans Health Administration,

and we consulted standard medical and surgical textbooks, including

``Harrison's Principles of Internal Medicine'' (Jean D. Wilson, M.D. et

al. eds., 12th ed. 1991), ``Cecil Textbook of Medicine'' (James B.

Wyngaarden, M.D. et al. eds., 19th ed. 1992), and ``The Merck Manual,''

(16th ed. 1992). The convalescent periods adopted in this change

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

longest nor the 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. For the

unusual case where a longer convalescence is needed, the provisions of

Secs. 4.29 and 4.30 allow an extension of convalescence.

One commenter said that the reductions in the revision appear to be

on a purely economic basis.

This review was carried out from a medical perspective. Its purpose

is to ensure that the rating schedule uses current medical terminology

and unambiguous criteria, and that it reflects medical advances which

have occurred since the last review. Cost cutting was not an issue.

One commenter suggested that we revise the title of DC 6522,

allergic rhinitis, to ``allergic or vasomotor rhinitis'' because both

conditions exhibit the same manifestations and are at times

indistinguishable.

We agree and have revised the title of DC 6522 accordingly.

Another commenter, without giving his reasons, suggested that we

combine DC's 6510 through 6514 (the codes for chronic pansinusitis,

ethmoid sinusitis, frontal sinusitis, maxillary sinusitis, and sphenoid

sinusitis) into a single code for sinusitis.

Retaining a separate code for each of the sinuses will allow

statistical tracking of disease of individual sinuses. Since the

commenter gave no reason for suggesting the change, and no substantial

advantage to either the veteran or the rating board is evident, we have

kept separate codes.

[[Page 46722]]

One commenter felt that subjective descriptors like ``marked''

under DC's 6522 (allergic rhinitis), 6523 (chronic rhinitis), and 6516

(laryngitis), and ``abundant'' in DC 6601 (bronchiectasis) in the

proposed revision should be eliminated for the sake of objectivity.

VA agrees, and we have revised the criteria accordingly. In some

cases we have simply removed subjective terms such as ``marked'' and

``mild'' 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 and

unambiguous criteria required greater modification of the proposed

criteria, and these changes will be discussed under the affected

diagnostic codes.

In the case of chronic laryngitis (DC 6516), removing ``marked''

and ``moderate'' required additional changes in the criteria to

distinguish the 10- and 30-percent levels. We proposed a ten-percent

evaluation for moderate hoarseness with inflammation of cords or mucous

membrane and a thirty-percent evaluation for marked hoarseness with

pathological changes such as inflammation of cords or mucous membrane,

thickening or nodules of cords, or submucous infiltration. We have

revised the requirements for a ten-percent evaluation to hoarseness

with inflammation of cords or mucous membrane and for a thirty-percent

evaluation to hoarseness with thickening or nodules of cords, polyps,

submucous infiltration, or pre-malignant changes on biopsy. This

clarifies the criteria for the given percentages.

For several conditions with nasal obstruction: septum, nasal,

deviation of (DC 6502), allergic or vasomotor rhinitis (DC 6522), and

bacterial rhinitis (DC 6523), we proposed a ten-percent evaluation if

there is ``marked'' interference with breathing space. We replaced that

subjective criterion with ``more than 50-percent obstruction of nasal

passage on both sides or complete obstruction on one side'' for a ten-

percent evaluation in all three conditions. This clarifies the criteria

for the given percentages.

In the general rating formula for sinusitis, the criteria included

such subjective terms as ``severe symptoms,'' ``frequently

incapacitating recurrences,'' and ``frequent severe headaches.'' We

proposed a 100-percent evaluation for ``following radical surgery with

chronic osteomyelitis, or; severe symptoms after repeated surgeries.''

We proposed a 30-percent evaluation for ``frequently incapacitating

recurrences, and frequent severe headaches, and purulent discharge or

crusting reflecting purulence.'' We proposed a ten-percent level for

``infrequent headaches with discharge or crusting or scabbing.'' We

have revised these criteria by specifying the frequency of

incapacitating or non-incapacitating episodes of sinusitis per year and

the specific symptoms for the various levels. For example, we changed

the criteria for a 30-percent evaluation to a requirement for three or

more incapacitating episodes per year of sinusitis requiring prolonged

(lasting four to six weeks) antibiotic treatment, or; more than six

non-incapacitating episodes per year of sinusitis characterized by

headaches, pain, and purulent discharge or crusting. The change is to

clarify the criteria.

One commenter, while agreeing with the removal of ambiguous words

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

We believe that providing clear and objective criteria is the best

way to assure that disabilities will be evaluated fairly and

consistently. At the same time we are aware that there must be some

flexibility in application of the criteria because patients do not

commonly present as textbook models of disease. Rating boards are

required to assess all the evidence of record before determining a

disability evaluation and must use their judgment in determining, for

example, which level of evaluation is more appropriate when there is

conflicting information. Therefore, no matter how objective the

criteria, an element of judgment in their application remains.

We proposed criteria for bronchiectasis (DC 6601) that included

``severe'' hemoptysis, ``chronic'' antibiotic usage, and ``chronic

recurrent'' pneumonia. One commenter said that the words ``severe,''

``chronic,'' and ``chronic recurrent'' are not objective and that in

fact they are unnecessary.

VA agrees. However, simply eliminating those adjectives would not

have left appropriate criteria, so we have revised the criteria to make

them more objective. We have specified the required duration of

incapacitating episodes of infection or frequency of antibiotic usage

for each level of severity of bronchiectasis. At the 60- and 30-percent

levels, we also provided alternative objective criteria based on such

symptoms as cough, purulent sputum, and weight loss. Our change is to

clarify the criteria for the evaluation of bronchiectasis.

The previous schedule used a variety of symptoms, signs, and X-ray

findings to evaluate pulmonary diseases. We proposed that many be

evaluated, at least in part, on criteria based on the results of

pulmonary function tests (PFT's). One commenter, concerned that a

single set of PFT's on a given day might not accurately represent the

veteran's usual condition, recommended that VA place greater emphasis

on interpreting examination reports in light of all evidence of record

and require that test results be reviewed by a pulmonary disease

specialist or by the medical specialist on the rating board.

Rating boards are required by Sec. 4.2 to evaluate all evidence of

record before assigning an evaluation. It is highly unlikely that the

results of a single set of PFT's would be the only available evidence

on which to evaluate the level of severity of a pulmonary condition.

Current clinical information, treatment records, previous examination

reports, and other laboratory results are generally available for

consideration. Rating boards seek medical consultation when they feel

it is necessary. The medical consultant to the rating board is readily

available for information and advice, and the rating board may request

an examination by a pulmonary disease specialist when it feels it is

needed. It would be both impractical and unnecessary to consult with a

pulmonary disease specialist on every case in which PFT's have been

conducted.

One commenter suggested that the criteria in the previous rating

schedule for evaluating respiratory diseases be retained as a backup

for cases where pulmonary function testing is not available.

The equipment for carrying out PFT's is widely available, but if an

examining facility is not equipped for the tests, the examination will

need to be conducted at another facility, as is the case with other

specialized testing, such as for vision or hearing. VA therefore does

not believe retention of the previous criteria as backup is necessary.

Another commenter stated that pulmonary function testing is

contraindicated in certain instances for medical reasons, such as a

history of spontaneous pneumothorax, a hole in the tympanic membrane,

or a recent history of active tuberculosis, and that provisions are

therefore needed for evaluating these conditions when PFT's cannot be

done.

The Veterans Health Administration has advised us that the medical

conditions listed by the commenter do not contraindicate pulmonary

function testing. The major limiting factor in carrying out such

testing is the inability of some patients to follow directions, as

[[Page 46723]]

might occur, for example, in individuals who are severely ill following

a stroke. Even in such individuals, the new criteria allow assignment

of a total evaluation for respiratory disease because there are a

number of criteria warranting a 100-percent evaluation, including cor

pulmonale, right ventricular hypertrophy, and respiratory failure, that

can be assessed without the need for patient cooperation. As under the

previous criteria, for a small number of patients with a less severe

respiratory disease, an evaluation may have to be deferred until

pulmonary function testing is feasible.

Machines that are used for disability testing purposes must meet

the calibration standards of The American Thoracic Society, which are

internationally accepted. This assures that the basis of evaluations

will be the most accurate and consistent measurements possible.

We proposed a 100-percent level of evaluation for larynx, stenosis

of, (DC 6520) if there is either a Forced Expiratory Volume in one

second (FEV-1) of less than 40-percent predicted, or a permanent

tracheostomy, and a 60-percent evaluation if there is an FEV-1 of 40-

to 55-percent predicted. We proposed a 100-percent evaluation for

chronic bronchitis (DC 6600), pulmonary emphysema (DC 6603), chronic

obstructive pulmonary disease (DC 6604) and restrictive lung diseases

if there is an FEV-1 of less than 40-percent predicted, a ratio of FEV-

1 to Forced Vital Capacity (FVC) less than 40-percent, a DLCO less than

40-percent predicted, maximum exercise capacity less than 15 ml/kg/min

oxygen consumption, cor pulmonale (right heart failure), right

ventricular hypertrophy, pulmonary hypertension, episode(s) of acute

respiratory failure, or a requirement for outpatient oxygen therapy. We

proposed a 60-percent evaluation for the same group of conditions if

there is an FEV-1 of 40- to 55-percent predicted, an FEV-1/FVC of 40-

to 55-percent, a DLCO of 40- to 55-percent predicted, or maximum oxygen

consumption of 15 to 20 ml/kg/min. We proposed a 100-percent evaluation

for bronchial asthma (DC 6602) if there is an FEV-1 less than 40-

percent predicted, an FEV-1/FVC less than 40-percent, more than one

attack per week with episodes of respiratory failure, or daily use of

systemic high dose corticosteroids or immuno-suppressive medication,

and a 60-percent evaluation if there is an FEV-1 of 40- to 55-percent

predicted, an FEV-1 of 40- to 55-percent, at least monthly visits to a

physician for exacerbations, or intermittent courses of systemic

corticosteroids.

One commenter said that the levels of reduction of pulmonary

function for the 60- and 100-percent evaluation levels of DC's 6520,

6600, 6602, 6603, 6604, and 6844 (one of the restrictive lung

conditions) that we proposed are extreme and do not represent average

impairments.

VA disagrees. The criteria we have provided for a 100-percent

evaluation for these conditions are consistent with the criteria used

by the American Thoracic Society for its ``severely impaired (unable to

meet the physical demands of most jobs)'' category. This is not more

stringent than the requirement for ``dyspnea at rest'' or ``dyspnea on

slight exertion,'' which were among the criteria for a 100-percent

level of evaluation for many pulmonary conditions in the previous

schedule. We also provided alternative requirements for a 100-percent

evaluation, such as heart failure, that are consistent with criteria

for this level in other sections of the rating schedule. The criteria

we have provided for 60 percent are proportionately lower than those

for the 100-percent level.

One commenter questioned what values will be assigned as normals in

PFT's.

Normal values of PFT's, for VA purposes, are those that exceed the

requirements for a 10-percent evaluation, and those levels are also

consistent with the American Thoracic Society standards for normal

values except in the case of the FEV-1/FVC ratio, where we include the

75- to 80-percent level in the criteria that warrant a ten-percent

evaluation. Although the American Thoracic Society uses an evaluation

of 75 percent as the normal level of the FEV-1/FVC ratio, two widely

used medical textbooks use other normals: Cecil (374) uses ``80

percent,'' and Harrison (1035) uses ``approximately 75 to 80 percent.''

Therefore, our designation of over 80 percent as normal is consistent

with current medical teaching.

The same commenter recommended that we specify that pulmonary

function be tested before bronchodilatation in order to reflect

ordinary conditions of life.

VA disagrees. The American Lung Association/American Thoracic

Society Component Committee on Disability Criteria recommends testing

for pulmonary function after optimum therapy. The results of such tests

reflect the best possible functioning of an individual and are the

figures used as the standard basis of comparison of pulmonary function.

Using this standard testing method assures consistent evaluations.

One commenter stated that, while pulmonary function testing

provides a very accurate picture of functional impairment of the

respiratory system, compensation should be based on the limitation of

earning capacity.

The determination of compensation based on limitation of earning

capacity is not inconsistent with the use of objective PFT's. A major

objective of the rating schedule revision is to provide criteria that

are accurate, consistent, and unambiguous. The widespread use and

acceptance of PFT's (American Thoracic Society, American Medical

Association, etc.) indicates their value in assessing the severity of

pulmonary diseases. Their usefulness lies in part in the fact that they

correlate with the functional impairment that an individual

experiences. The more severe the pulmonary disease, the more abnormal

one or more PFT's are likely to be, and the more interference there is

likely to be with occupational functioning. Using PFT's as a means of

evaluation fulfills to as great an extent as is possible, the desire

for evaluation criteria that allow accuracy and consistency and that

are not ambiguous. The commenter offered no alternative suggestions for

criteria to evaluate pulmonary disease.

One commenter felt that PFT's should be the exclusive basis for

evaluating lung disorders because they are strictly objective.

VA disagrees. While we have used the results of pulmonary function

tests as evaluation criteria when they are appropriate, they are not

suitable for the evaluation of all lung conditions. Asthma, for

example, is an episodic condition that may exhibit normal PFT's at most

times despite significantly disabling disease, and it therefore

requires other criteria for its evaluation, such as the need for a

certain type or frequency of treatment.

One commenter, noting that we had proposed to assign most lung

disorders (restrictive lung diseases, chronic bronchitis, asthma,

emphysema, chronic obstructive pulmonary disease, and bronchiectasis)

evaluation levels of 10, 30, 60, and 100 percent, but interstitial lung

diseases levels of 0, 10, 40, 70, and 100 percent, said that it would

be more logical and consistent to assign all lung conditions the same

evaluation levels. Another commenter stated that lung conditions with

similar impairments of lung functions should receive similar ratings.

He suggested listing FEV-1, FVC, FEV-1/FVC, and DLCO under all lung

diseases requiring PFT's, as recommended by the American

[[Page 46724]]

Thoracic Society and found in the AMA Guides.

Individual categories of pulmonary disorders often affect the

results of one PFT more than another. Our non-VA panel of specialist

consultants felt that FEV-1 and the ratio of FEV-1 to FVC are good

indicators of the level of severity of many pulmonary diseases, but

that the FVC and DLCO are more appropriate PFT's to evaluate

interstitial diseases. The American Medical Association's ``Guides to

the Evaluation of Permanent Impairment,'' Third Edition, Revised

(1990), says that ``for interstitial lung disease, the FVC has proved

to be a reliable and valid index of significant impairment,'' and it

goes on to say that the DLCO is especially useful in detecting

abnormalities that limit gas transference, such as emphysema or

interstitial fibrosis of the lung parenchyma. A standard medical

textbook (Cecil, 401), says that the ratio of FEV-1 to FVC may be

normal or increased in interstitial disease. It is therefore not useful

as a criterion to evaluate the severity of this type of disease. Our

use of the proposed criteria is thus consistent with the effects of the

various conditions on PFT's.

Regarding the comment about using the same evaluation levels for

all lung disorders, VA agrees that there is no compelling reason to use

evaluation levels for interstitial lung disease that differ from those

used for the majority of other lung diseases. We have, therefore, for

the sake of greater consistency, revised the criteria for interstitial

lung disease by substituting 30- and 60-percent levels for the 40- and

70-percent levels. This required adjustments in the FVC and DLCO levels

used as criteria, both because of the changed evaluation levels and to

make them correspond with the PFT criteria for other pulmonary

conditions. We also removed the zero-percent evaluation for

consistency.

One commenter said that while an FEV-1 above 80 percent is

considered normal in the proposed revision of the respiratory disease

section of the rating schedule, the Veterans Health Administration's

``Physician's Guide for Disability Evaluation Examinations'' (a manual

that gives guidance to examining physicians who do compensation and

pension examinations) states that 83 percent is normal, and these

figures are inconsistent.

The ``Physician's Guide'' 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

current version of the Guide (revised 1994), which is computerized and

no longer available in printed form, does not provide lists of normal

PFT results. The examining physician is required to obtain PFT's where

the criteria call for them but need not interpret the results since the

criteria themselves contain the actual figures that warrant various

evaluations. As with any examination, 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 38 CFR 4.2).

We proposed notes under DC's 6600 (chronic bronchitis), 6603

(pulmonary emphysema), 6604 (chronic obstructive pulmonary disease) and

under the general rating formula for restrictive lung diseases

outlining the requirements for home oxygen. One commenter said that the

requirements for home oxygen are too specific and should be flexible

enough to allow for a physician's assessment that the patient needs

oxygen. Another commenter said that the term ``home oxygen'' is

confusing because many use oxygen away from home and the requirement

for oxygen may be temporary, pending stabilization or during an acute

illness.

VA agrees that the decision to use home oxygen should be a medical,

not a rating, decision, and we have therefore deleted the note

explaining the technical requirements for home oxygen. We proposed that

``meets requirements for home oxygen'' be one of the criteria for the

100-percent level of the conditions listed above, but the preferred

current term for such treatment is ``outpatient oxygen therapy,'' and

we have revised the language accordingly.

A commenter asked how VA will deal with results of PFT's from non-

VA facilities that are at variance with VA test results.

This potential problem is not unique to the area of PFT's. Any

laboratory test may show different results when performed on the same

individual in the same facility at different times or when the same

test is performed on the same individual at more than one facility.

Rating boards are required to consider and reconcile all evidence of

record, and at times they may seek additional testing or a medical

opinion to help reconcile differences.

One commenter suggested we assign a minimum evaluation of 10

percent for any lung disorder if the patient must take daily

medication.

VA disagrees. Because of the broad range of pulmonary conditions

and medications used to treat them, a 10-percent evaluation would not

necessarily be warranted in all cases on the basis of daily medication

alone. For example, daily use of an expectorant or cough medicine would

not necessarily be indicative of a condition warranting a ten-percent

level of evaluation.

We proposed to add sarcoidosis (DC 6846) to the rating schedule

with evaluation levels of 0, 30, and 60 percent. We received two

comments about this change. One stated that while the criteria of

pulmonary involvement with fever, weight loss, and night sweats

requiring high dose systemic corticosteroids for control establish a

60-percent level of evaluation in the case of sarcoidosis, similar

criteria (active infection with systemic symptoms such as fever, night

sweats, weight loss, or hemoptysis) establish a 100-percent evaluation

for bacterial infections of the lung (DC's 6822, 6823, and 6824). He

felt that the criteria described should be considered totally disabling

for both conditions.

VA agrees that some of the criteria we had proposed for the 60-

percent level of sarcoidosis are more consistent with total disability.

We have therefore revised the criteria for the 60-percent evaluation

level and added a 100-percent evaluation level. We have made fever,

night sweats, and weight loss part of the criteria for the 100-percent

level and pulmonary disease requiring systemic high dose (therapeutic)

steroids for control of the criterion for the 60-percent level. We also

slightly revised the 30 percent criteria by adding ``maintenance'' in

parentheses as a description of the steroid therapy and removed

``mild'' modifying symptoms because it is a subjective term, and

whether maintenance or therapeutic doses of steroid are used makes a

clearer differentiation of the level of severity.

The other commenter stated that it will be difficult to establish

service connection for sarcoidosis on a presumptive basis if there is

no ten-percent level, because presumptive service connection requires

that a condition be manifest to a degree of ten percent or more within

one year of discharge.

The evaluation levels we provide for various conditions are meant

to reflect the ordinary levels of severity that may be seen in those

conditions, and we do not provide ten-percent evaluation levels in

order to aid presumptive service connection. The proposed evaluation

criteria for sarcoidosis included 30- and 60-percent evaluation levels,

and either of those levels would

[[Page 46725]]

establish presumptive service connection if present within one year of

discharge. Sarcoidosis may also be evaluated under other criteria,

however, as indicated in a note following the evaluation criteria.

Therefore, a 10-percent level, as well as other levels of evaluation,

may be assigned under DC 6600 (chronic bronchitis) based on the results

of pulmonary function tests, or under skin disease, eye disease, etc.,

when there is extra-pulmonary involvement.

One commenter suggested that we add a diagnostic code and

evaluation criteria for asbestosis. He suggested that we evaluate the

condition based on its restrictive aspects, X-ray changes, and pleural

changes.

VA agrees that asbestosis is a common enough disease in the veteran

population to warrant its own diagnostic code. We have therefore

removed asbestosis from the list of pneumoconioses in DC 6832 and have

added asbestosis as DC 6833. It will be evaluated under the general

rating formula for interstitial diseases, as recommended by our panel

of consultants. The X-ray changes unique to asbestosis are not

necessarily related to the degree of disability but are helpful in

establishing the fact of asbestos exposure. They therefore relate more

to the issue of service connection rather than to evaluation, and we

have not made them part of the evaluation criteria. We have adjusted

the numbering of the proposed diagnostic codes following asbestosis to

accommodate the added condition. We have changed the proposed DC's for

histoplasmosis of lung from 6833 to 6834, coccidioidomycosis from 6834

to 6835, blastomycosis from 6835 to 6836, cryptococcosis from 6836 to

6837, aspergillosis from 6837 to 6838, mucormycosis from 6838 to 6839,

diaphragm paralysis or paresis from 6839 to 6840, spinal cord injury

with respiratory insufficiency from 6840 to 6841, kyphoscoliosis,

pectus excavatum, pectus carinatum from 6841 to 6842, traumatic chest

wall defect, pneumothorax, hernia, etc., from 6842 to 6843, post-

surgical residual from 6843 to 6844, chronic pleural effusion or

fibrosis from 6844 to 6845, sarcoidosis from 6845 to 6846, and sleep

apnea from 6846 to 6847.

One commenter asked why we have not proposed to rate the

disfigurement and disability from radical neck surgery under

respiratory disorders.

Radical neck surgery is not appropriate for inclusion in the

respiratory system section of the rating schedule because it primarily

results in loss of muscle tissue (of the neck), subcutaneous tissue,

and lymph nodes. There is ordinarily no effect on the respiratory

system from such surgery. Disability from this loss of tissue can be

most appropriately evaluated under diagnostic codes in other sections,

such as DC 5322 (Muscle Group XXII, muscles of the front of the neck)

or DC 7800 (disfiguring scars of the head, face, or neck).

We proposed that injuries to the pharynx (DC 6521) have a single

evaluation level of 50 percent based on the presence of stricture or

obstruction of the pharynx or nasopharynx or on paralysis or absence of

the soft palate. A commenter said that the resulting symptoms are

severe enough to be considered 60-percent disabling, equivalent to

complete organic aphonia (DC 6519) or stenosis of larynx (DC 6520),

which have both 60- and 100-percent evaluation levels.

VA disagrees. The impairments from these three conditions differ

because they are in different locations. The major effect of pharyngeal

and palatal injuries is swallowing difficulty rather than respiratory

difficulty, and any resulting speech impairment is not likely to

approach the level of aphonia. (A 50-percent evaluation for these

injuries is comparable to the 50-percent evaluation criteria in the

digestive system for severe esophageal stricture, permitting passage of

liquids only.) Laryngeal stenosis, on the other hand, causes both

respiratory and speech impairment. However, if there is a case where

the impairment from pharyngeal injury more closely resembles aphonia or

the effects of laryngeal stenosis, an evaluation analogous to one of

those conditions may be used instead (Sec. 4.20). In our judgment, the

criteria and level of evaluation we have provided are appropriate for

most pharyngeal injuries, and there are adequate provisions for

evaluating those few that may be more severe.

Note (1) under the proposed general rating formula for inactive

pulmonary tuberculosis stated that when a veteran is placed on the 100-

percent rating for inactive tuberculosis, the medical authorities will

be appropriately notified of the fact, and of the necessity under 38

U.S.C. 356 to notify the Adjudication Division in the event of failure

to submit to examination or to follow prescribed treatment. A commenter

said that the citation of 38 U.S.C. 356, repealed by Public Law 90-493,

should be followed by a notation that it is to be found as footnote 1

to section 1156 of title 38, United States Code.

We agree and have revised the note accordingly.

One commenter felt that there is inequity in the evaluation

criteria for laryngectomy and partial aphonia because if partial

aphonia allows a person to whisper, the rating is 60 percent while if

laryngectomy allows a person to whisper, the rating is 100 percent.

VA disagrees. Disability resulting from a laryngectomy is not

comparable to partial aphonia with an intact larynx. In the case of

laryngectomy, a significant organ has been removed which has functions

beyond that of speech. The larynx acts as the sphincter guarding the

gateway to the trachea, and a laryngectomy produces a serious

compromise of the respiratory tract, requiring a permanent

tracheostomy. Partial aphonia may result from any of several causes,

including inflammatory and benign neoplastic conditions, but since they

affect speech without affecting respiration, we have retained the

evaluation criteria as proposed.

Another comment regarding total laryngectomy (DC 6518) and complete

organic aphonia (DC 6519) was that there should be a footnote at these

codes as a reminder to consider special monthly compensation (SMC),

which may be awarded for complete organic aphonia under the provisions

of 38 CFR 3.350.

In our judgment, the rating agency should refer directly to the

complex and extensive regulations regarding special monthly

compensation in Sec. 3.350 whenever the question of special monthly

compensation arises. However, in response to the comment, we have taken

two steps to remind the rating board to consider the possibility of

SMC. We added paragraph (c), ``Special monthly compensation,'' to

Sec. 4.96 requiring the rating board to refer to Sec. 3.350 any time it

evaluates a claim involving complete organic aphonia; and we placed

footnotes at DC's 6518 and 6519, conditions which may be associated

with complete organic aphonia, instructing rating boards to review for

entitlement to SMC. While those conditions clearly call for review for

entitlement to SMC, there are other conditions in this portion of the

rating schedule where there might also be entitlement to SMC. The lack

of a footnote does not relieve the rating board of the responsibility

of recognizing additional circumstances where SMC might be warranted.

We believe that the combination of the regulatory requirement contained

in the note and the footnotes is the best method of making sure that

potential entitlement to SMC is considered.

In view of the addition of paragraph (c) to Sec. 4.96, we have

changed the title

[[Page 46726]]

of this section to ``Special provisions regarding evaluation of

respiratory conditions,'' which is more descriptive of its current

contents.

The previous rating schedule had separate diagnostic codes and

evaluations for pneumonectomy (60 percent under DC 6815) and lobectomy

(50 percent if bilateral, and 30 percent if unilateral, under DC 6816).

We proposed that all pulmonary post-surgical residuals, including

lobectomy and pneumonectomy, be evaluated under DC 6843, post-surgical

residual, as restrictive lung disease, based on the objective findings

of PFT's. One commenter said this change is an arbitrary decrease

because no advancement in medical science can change the degree of

disability resulting from such surgery.

VA does not concur. Since there is an objective method to measure

residual breathing impairment, it is more equitable to use that method

so that evaluation of the residuals of any type of lung resection is

made on the actual residuals found. The previous schedule did not

provide evaluations for residuals more severe than the levels specified

under those codes. It required, for example, that lobectomy be

bilateral to qualify for a 50-percent level of impairment. Under the

revised criteria, a veteran will be assigned an evaluation according to

the level of disability reflected by the PFT's, whatever the extent of

the surgery. This will assure that veterans with comparable residual

pulmonary disabilities are consistently evaluated.

We proposed that chronic lung abscess (DC 6824) be evaluated under

a general rating formula for bacterial infections of the lung and

directed that post-surgical residuals and post-treatment fibrosis and

scars be rated as chronic bronchitis (DC 6600). One commenter pointed

out that there may be other types of residuals besides fibrosis and

scars, such as thoracoplasty, lobectomy, or purulent pleurisy, and

suggested that the residuals be rated as appropriate.

We agree, and have revised the statement under DC 6824 to read:

``Depending on the specific findings, rate residuals as interstitial

lung disease, restrictive lung disease, or, when obstructive lung

disease is the major residual, as chronic bronchitis (DC 6600).''

The previous schedule called for a 100-percent rating for one year

following the date of inactivity of active pulmonary tuberculosis (DC

6731). We proposed that once pulmonary tuberculosis becomes inactive,

it be evaluated on the residual scar or fibrosis as chronic bronchitis

(DC 6600). Three commenters objected to the change. One said that

eliminating a period of convalescence when there is a new worldwide

outbreak of tuberculosis is questionable, one said that the change is

not justifiable, and one said that we should provide a period of

readjustment because individuals have difficulty finding employment

after release from treatment for tuberculosis.

On further consideration, VA agrees that some provision for

readjustment is appropriate, and we have revised DC 6731 to require

that a mandatory examination be requested immediately after

notification that active tuberculosis has become 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

for at least several months, which will provide a period of

readjustment, and will also assure that the extent of any residual

impairment has been documented by examination.

The third commenter stated that the proposal to rate residual scar

or fibrosis of inactive tuberculosis (DC 6731) as chronic bronchitis

(DC 6600) is too restrictive because there may be other residuals.

We agree, and have revised the statement under DC 6731 to read:

``Depending on the specific findings, rate residuals as interstitial

lung disease, restrictive lung disease, or, when obstructive lung

disease is the major residual, as chronic bronchitis (DC 6600). Rate

thoracoplasty as removal of ribs under DC 5297.''

We proposed separate diagnostic codes for chronic bronchitis (DC

6600), pulmonary emphysema (DC 6603), and chronic obstructive pulmonary

disease (DC 6604), with evaluation under identical criteria. One

commenter suggested a single diagnostic code, ``chronic obstructive

pulmonary disease (bronchitis or emphysema),'' for all of these

conditions, since the proposed criteria are essentially identical.

VA disagrees. While pulmonary emphysema, chronic obstructive

pulmonary disease (COPD), and chronic bronchitis often coexist and are

sometimes hard to differentiate, they are not synonymous. COPD

ordinarily refers to a combination of chronic obstructive bronchitis

and emphysema (Cecil, 389), but the term is not always used precisely.

Emphysema may be localized or generalized, and is not always

categorized as COPD. Since an individual may receive a diagnosis of any

of the three conditions, it is useful to have a separate diagnostic

code for each entity for statistical purposes and to aid the rating

board in selecting appropriate evaluation criteria.

We proposed to add spinal cord injury with respiratory

insufficiency (DC 6840) as one of six restrictive lung diseases to be

evaluated under a general rating formula. One commenter, without

explaining how the conditions differ or offering an alternative for us

to consider, suggested that spinal cord injury with respiratory

insufficiency not be evaluated as a restrictive lung disease because

ventilator dependency secondary to spinal cord injury is distinct from

other lung diseases.

VA disagrees. The panel of non-VA specialists convened by a

contract consultant included spinal cord injury with respiratory

insufficiency among the restrictive pulmonary diseases. Cecil (377), in

discussing restrictive pulmonary disease, includes those conditions

that affect the chest wall or respiratory muscles. We have provided

alternative criteria for restrictive lung disease at each evaluation

level, and if any one of the criteria for a particular level is

present, that level of evaluation can be assigned. A wide range of

respiratory conditions with a predominantly restrictive effect can

therefore be evaluated under our criteria, even though one condition

might be reflected in an abnormality of one PFT more than another. As a

result, our criteria are broad enough to encompass any likely

functional impairment spinal cord injury with respiratory insufficiency

may produce.

The previous rating schedule provided a one hundred-percent

evaluation for six months following spontaneous pneumothorax (now DC

6843). We proposed to provide a convalescent period of three months

following total pneumothorax. We received two comments objecting to

this proposal. One commenter said that our statement in the preamble to

the proposed revision that pneumothorax resolves sooner than six months

is not supported by medical evidence, and the other said that

decreasing the convalescent period may impede full recovery.

VA disagrees. ``The Merck Manual,'' (731, 16th ed. 1992), states

that a small pneumothorax requires no special treatment and that the

air is reabsorbed in a few days. It also says that full absorption of a

larger airspace may take two to four weeks, a period which can be

shortened by the use of a tube for drainage. Cecil (450), states that a

small pneumothorax is reabsorbed in 7 to 14 days and that larger ones

may be treated with a tube for 2 to 4 days if very large, under

tension, or very symptomatic. A persistent or complicated pneumothorax

[[Page 46727]]

may require surgery, and in that case, the provisions of

Sec. 4.30(b)(2) allow the rating board to assign convalescence for up

to a total of six months. Therefore, it is our judgment that three

months of convalescence is adequate in the average case.

We received one comment on avoiding pyramiding, the prohibited

practice of evaluating the same disability under various diagnoses (see

38 CFR 4.14). The commenter suggested that we direct that DC 6520,

stenosis of larynx, not be combined with other codes in this section

because the criterion for airflow obstruction due to stenosis of the

larynx is similar to those for disease of bronchi or lungs.

Stenosis of the larynx may be evaluated on the basis of the results

of pulmonary function tests, if there is respiratory impairment, or as

aphonia, when interference with speech is the main impairment. Only in

cases of laryngeal stenosis where respiratory impairment is the basis

of evaluation would it be pyramiding to combine such an evaluation with

the evaluation of another pulmonary condition. Therefore, a strict

prohibition against combining evaluations for stenosis of the larynx

with evaluations for pulmonary conditions is not warranted. The

statement in Sec. 4.96, paragraph (a), stipulating that when there is

lung or pleural involvement, DC's 6819 and 6920 will not be combined

with each other or with DC's 6600 through 6817 or 6822 through 6847 is

sufficient to alert the rating board to possible problems of pyramiding

when evaluating pulmonary conditions.

The same commenter additionally said that, to prevent pyramiding,

VA should state that evaluations under DC's 6520 (stenosis of larynx),

6511, 6512, 6513, and 6514 (sinusitis in various locations) should not

be combined with one another and likewise that evaluations under DC's

6522, 6523, and 6524 (rhinitis of various types) should not be combined

with one another.

In VA's judgment, there is no need to specifically prohibit

pyramiding of the various codes for sinusitis or rhinitis as the

commenter suggests. The rating board is required in general by

Sec. 4.14 not to pyramid disabilities. The board must use its judgment

as to whether a single evaluation encompasses all disability present or

not. A specific prohibition might be useful if all conditions involved

always had the same manifestations, but this is not true of either

sinusitis or rhinitis.

The commenter went on to say that, alternatively, Sec. 4.96 could

be amended to state that it does not remove the prohibition against

pyramiding that may apply to other diagnostic codes.

VA disagrees. Such an amendment is not necessary because Sec. 4.14,

which prohibits the practice of ``pyramiding,'' applies to the entire

rating schedule, and all rating boards are required to follow it.

For further clarity, we have revised the criteria for pulmonary

vascular disease, DC 6817. We proposed that the criterion for 30

percent be ``acute pulmonary embolism with residual symptoms,'' and we

changed that language to ``symptomatic following resolution of acute

pulmonary embolism.'' We proposed that the criterion at the zero-

percent level be ``resolved pulmonary thromboembolism with no residual

symptoms,'' and we changed that language to ``asymptomatic, following

resolution of pulmonary thromboembolism.'' These do not represent

substantive changes. Because pulmonary vascular disease may result in

residuals other than those included in the proposed criteria, such as

chronic pleural thickening, for the sake of completeness, we added a

note under DC 6817 directing to evaluate other residuals under the most

appropriate diagnostic code.

In the proposed regulation for chronic bronchitis (DC 6600),

pulmonary emphysema (DC 6603), chronic obstructive pulmonary disease

(DC 6604), and restrictive lung diseases, we inadvertently omitted an

upper level of DLCO that would warrant a ten percent evaluation. We

have corrected this oversight in the final regulation by making the

DLCO requirement for the 10-percent evaluation ``66- to 80-percent

predicted.''

An additional change we made for the sake of completeness was the

addition of a note following DC 6504, nose, loss of part of, or scars,

stating that this disability may alternatively be evaluated as DC 7800,

disfiguring scars of the head, face, or neck.

We made minor editorial changes in language in several cases, such

as changing ``rate'' to ``evaluate'' and ``applicable'' to

``appropriate'', but these are not substantive changes.

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: May 13, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out 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. In Sec. 4.96, the section heading and paragraph (a) are revised,

and paragraph (c) is added to read as follows:

Sec. 4.96 Special provisions regarding evaluation of respiratory

conditions.

(a) Rating coexisting respiratory conditions. Ratings under

diagnostic codes 6600 through 6817 and 6822 through 6847 will not be

combined with each other. Where there is lung or pleural involvement,

ratings under diagnostic codes 6819 and 6820 will not be combined with

each other or with diagnostic codes 6600 through 6817 or 6822 through

6847. A single rating will be assigned under the diagnostic code which

reflects the predominant disability with elevation to the next higher

evaluation where the severity of the overall disability warrants such

elevation. However, in cases protected by the provisions of Pub. L. 90-

493, the graduated ratings of 50 and 30 percent for inactive

tuberculosis will not be elevated.

* * * * *

(c) Special monthly compensation. When evaluating any claim

involving complete organic aphonia, refer to Sec. 3.350 of this chapter

to determine whether the veteran may be entitled to special monthly

compensation. Footnotes in the schedule indicate

[[Page 46728]]

conditions which potentially establish entitlement to special monthly

compensation; however, there are other conditions in this section which

under certain circumstances also establish entitlement to special

monthly compensation.

(Authority: 38 U.S.C. 1155)

3. Section 4.97 is revised to read as follows:

Sec. 4.97 Schedule of ratingsrespiratory system.

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

Rating

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

DISEASES OF THE NOSE AND THROAT

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

6502 Septum, nasal, deviation of:

Traumatic only,

With 50-percent obstruction of the nasal passage on

both sides or complete obstruction on one side........ 10

6504 Nose, loss of part of, or scars:

Exposing both nasal passages............................... 30

Loss of part of one ala, or other obvious disfigurement.... 10

Note: Or evaluate as DC 7800, scars, disfiguring, head, face,

or neck.

6510 Sinusitis, pansinusitis, chronic.

6511 Sinusitis, ethmoid, chronic.

6512 Sinusitis, frontal, chronic.

6513 Sinusitis, maxillary, chronic.

6514 Sinusitis, sphenoid, chronic.

General Rating Formula for Sinusitis (DC's 6510 through

6514):

Following radical surgery with chronic osteomyelitis,

or; near constant sinusitis characterized by

headaches, pain and tenderness of affected sinus, and

purulent discharge or crusting after repeated

surgeries............................................. 50

Three or more incapacitating episodes per year of

sinusitis requiring prolonged (lasting four to six

weeks) antibiotic treatment, or; more than six non-

incapacitating episodes per year of sinusitis

characterized by headaches, pain, and purulent

discharge or crusting................................. 30

One or two incapacitating episodes per year of

sinusitis requiring prolonged (lasting four to six

weeks) antibiotic treatment, or; three to six non-

incapacitating episodes per year of sinusitis

characterized by headaches, pain, and purulent

discharge or crusting................................. 10

Detected by X-ray only................................. 0

Note: An incapacitating episode of sinusitis means one that

requires bed rest and treatment by a physician.

6515 Laryngitis, tuberculous, active or inactive.

Rate under Secs. 4.88c or 4.89, whichever is appropriate.

6516 Laryngitis, chronic:

Hoarseness, with thickening or nodules of cords, polyps,

submucous infiltration, or pre-malignant changes on biopsy 30

Hoarseness, with inflammation of cords or mucous membrane.. 10

6518 Laryngectomy, total...................................... \1\ 100

Rate the residuals of partial laryngectomy as laryngitis

(DC 6516), aphonia (DC 6519), or stenosis of larynx (DC

6520).

6519 Aphonia, complete organic:

Constant inability to communicate by speech................ \1\ 100

Constant inability to speak above a whisper................ 60

Note: Evaluate incomplete aphonia as laryngitis, chronic

(DC 6516).

6520 Larynx, stenosis of, including residuals of laryngeal

trauma (unilateral or bilateral):

Forced expiratory volume in one second (FEV-1) less than 40

percent of predicted value, with Flow-Volume Loop

compatible with upper airway obstruction, or; permanent

tracheostomy.............................................. 100

FEV-1 of 40- to 55-percent predicted, with Flow-Volume Loop

compatible with upper airway obstruction.................. 60

FEV-1 of 56- to 70-percent predicted, with Flow-Volume Loop

compatible with upper airway obstruction.................. 30

FEV-1 of 71- to 80-percent predicted, with Flow-Volume Loop

compatible with upper airway obstruction.................. 10

Note: Or evaluate as aphonia (DC 6519).

6521 Pharynx, injuries to:

Stricture or obstruction of pharynx or nasopharynx, or;

absence of soft palate secondary to trauma, chemical burn,

or granulomatous disease, or; paralysis of soft palate

with swallowing difficulty (nasal regurgitation) and

speech impairment......................................... 50

6522 Allergic or vasomotor rhinitis:

With polyps................................................ 30

Without polyps, but with greater than 50-percent

obstruction of nasal passage on both sides or complete

obstruction on one side................................... 10

6523 Bacterial rhinitis:

Rhinoscleroma.............................................. 50

With permanent hypertrophy of turbinates and with greater

than 50-percent obstruction of nasal passage on both sides

or complete obstruction on one side....................... 10

6524 Granulomatous rhinitis:

Wegener's granulomatosis, lethal midline granuloma......... 100

Other types of granulomatous infection..................... 20

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

DISEASES OF THE TRACHEA AND BRONCHI

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

6600 Bronchitis, chronic:

FEV-1 less than 40 percent of predicted value, or; the

ratio of Forced Expiratory Volume in one second to Forced

Vital Capacity (FEV-1/FVC) less than 40 percent, or;

Diffusion Capacity of the Lung for Carbon Monoxide by the

Single Breath Method (DLCO (SB)) less than 40-percent

predicted, or; maximum exercise capacity less than 15 ml/

kg/min oxygen consumption (with cardiac or respiratory

limitation), or; cor pulmonale (right heart failure), or;

right ventricular hypertrophy, or; pulmonary hypertension

(shown by Echo or cardiac catheterization), or; episode(s)

of acute respiratory failure, or; requires outpatient

oxygen therapy............................................ 100

[[Page 46729]]

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40

to 55 percent, or; DLCO (SB) of 40- to 55-percent

predicted, or; maximum oxygen consumption of 15 to 20 ml/

kg/min (with cardiorespiratory limit)..................... 60

FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56

to 70 percent, or; DLCO (SB) 56- to 65-percent predicted.. 30

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71

to 80 percent, or; DLCO (SB) 66- to 80-percent predicted.. 10

6601 Bronchiectasis:

With incapacitating episodes of infection of at least six

weeks total duration per year............................. 100

With incapacitating episodes of infection of four to six

weeks total duration per year, or; near constant findings

of cough with purulent sputum associated with anorexia,

weight loss, and frank hemoptysis and requiring antibiotic

usage almost continuously................................. 60

With incapacitating episodes of infection of two to four

weeks total duration per year, or; daily productive cough

with sputum that is at times purulent or blood-tinged and

that requires prolonged (lasting four to six weeks)

antibiotic usage more than twice a year................... 30

Intermittent productive cough with acute infection

requiring a course of antibiotics at least twice a year... 10

Or rate according to pulmonary impairment as for chronic

bronchitis (DC 6600).

Note: An incapacitating episode is one that requires

bedrest and treatment by a physician.

6602 Asthma, bronchial:

FEV-1 less than 40-percent predicted, or; FEV-1/FVC less

than 40 percent, or; more than one attack per week with

episodes of respiratory failure, or; requires daily use of

systemic (oral or parenteral) high dose corticosteroids or

immuno-suppressive medications............................ 100

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40

to 55 percent, or; at least monthly visits to a physician

for required care of exacerbations, or; intermittent (at

least three per year) courses of systemic (oral or

parenteral) corticosteroids............................... 60

FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56

to 70 percent, or; daily inhalational or oral

bronchodilator therapy, or; inhalational anti-inflammatory

medication................................................ 30

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71

to 80 percent, or; intermittent inhalational or oral

bronchodilator therapy.................................... 10

Note: In the absence of clinical findings of asthma at time

of examination, a verified history of asthmatic attacks

must be of record.

6603 Emphysema, pulmonary:

FEV-1 less than 40 percent of predicted value, or; the

ratio of Forced Expiratory Volume in one second to Forced

Vital Capacity (FEV-1/FVC) less than 40 percent, or;

Diffusion Capacity of the Lung for Carbon Monoxide by the

Single Breath Method (DLCO (SB)) less than 40-percent

predicted, or; maximum exercise capacity less than 15 ml/

kg/min oxygen consumption (with cardiac or respiratory

limitation), or; cor pulmonale (right heart failure), or;

right ventricular hypertrophy, or; pulmonary hypertension

(shown by Echo or cardiac catheterization), or; episode(s)

of acute respiratory failure, or; requires outpatient

oxygen therapy............................................ 100

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40

to 55 percent, or; DLCO (SB) of 40- to 55-percent

predicted, or; maximum oxygen consumption of 15 to 20 ml/

kg/min (with cardiorespiratory limit)..................... 60

FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56

to 70 percent, or; DLCO (SB) 56- to 65-percent predicted.. 30

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71

to 80 percent, or; DLCO (SB) 66- to 80-percent predicted.. 10

6604 Chronic obstructive pulmonary disease:

FEV-1 less than 40 percent of predicted value, or; the

ratio of Forced Expiratory Volume in one second to Forced

Vital Capacity (FEV-1/FVC) less than 40 percent, or;

Diffusion Capacity of the Lung for Carbon Monoxide by the

Single Breath Method (DLCO (SB)) less than 40-percent

predicted, or; maximum exercise capacity less than 15 ml/

kg/min oxygen consumption (with cardiac or respiratory

limitation), or; cor pulmonale (right heart failure), or;

right ventricular hypertrophy, or; pulmonary hypertension

(shown by Echo or cardiac catheterization), or; episode(s)

of acute respiratory failure, or; requires outpatient

oxygen therapy............................................ 100

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40

to 55 percent, or; DLCO (SB) of 40- to 55-percent

predicted, or; maximum oxygen consumption of 15 to 20 ml/

kg/min (with cardiorespiratory limit)..................... 60

FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56

to 70 percent, or; DLCO (SB) 56- to 65-percent predicted.. 30

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71

to 80 percent, or; DLCO (SB) 66- to 80-percent predicted.. 10

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

DISEASES OF THE LUNGS AND PLEURA--TUBERCULOSIS

Ratings for Pulmonary Tuberculosis Entitled on August 19, 1968

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

6701 Tuberculosis, pulmonary, chronic, far advanced, active... 100

6702 Tuberculosis, pulmonary, chronic, moderately advanced,

active........................................................ 100

6703 Tuberculosis, pulmonary, chronic, minimal, active........ 100

6704 Tuberculosis, pulmonary, chronic, active, advancement

unspecified................................................... 100

6721 Tuberculosis, pulmonary, chronic, far advanced, inactive.

6722 Tuberculosis, pulmonary, chronic, moderately advanced,

inactive......................................................

6723 Tuberculosis, pulmonary, chronic, minimal, inactive......

6724 Tuberculosis, pulmonary, chronic, inactive, advancement

unspecified...................................................

General Rating Formula for Inactive Pulmonary Tuberculosis:

For two years after date of inactivity, following active

tuberculosis, which was clinically identified during

service or subsequently................................... 100

Thereafter for four years, or in any event, to six years

after date of inactivity.................................. 50

Thereafter, for five years, or to eleven years after date

of inactivity............................................. 30

Following far advanced lesions diagnosed at any time while

the disease process was active, minimum................... 30

Following moderately advanced lesions, provided there is

continued disability, emphysema, dyspnea on exertion,

impairment of health, etc................................. 20

Otherwise.................................................. 0

Note (1): The 100-percent rating under codes 6701 through 6724

is not subject to a requirement of precedent hospital

treatment. It will be reduced to 50 percent for failure to

submit to examination or to follow prescribed treatment upon

report to that effect from the medical authorities. When a

veteran is placed on the 100-percent rating for inactive

tuberculosis, the medical authorities will be appropriately

notified of the fact, and of the necessity, as given in

footnote 1 to 38 U.S.C. 1156 (and formerly in 38 U.S.C. 356,

which has been repealed by Public Law 90-493), to notify the

Adjudication Division in the event of failure to submit to

examination or to follow treatment.

[[Page 46730]]

Note (2): The graduated 50-percent and 30-percent ratings and

the permanent 30 percent and 20 percent ratings for inactive

pulmonary tuberculosis are not to be combined with ratings for

other respiratory disabilities. Following thoracoplasty the

rating will be for removal of ribs combined with the rating

for collapsed lung. Resection of the ribs incident to

thoracoplasty will be rated as removal.

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

Ratings for Pulmonary Tuberculosis Initially Evaluated After August 19,

1968

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6730 Tuberculosis, pulmonary, chronic, active................ 100

Note: Active pulmonary tuberculosis will be considered

permanently and totally disabling for non-service-

connected pension purposes in the following circumstances:

(a) Associated with active tuberculosis involving other

than the respiratory system.

(b) With severe associated symptoms or with extensive

cavity formation.

(c) Reactivated cases, generally.

(d) With advancement of lesions on successive

examinations or while under treatment.

(e) Without retrogression of lesions or other evidence

of material improvement at the end of six months

hospitalization or without change of diagnosis from

``active'' at the end of 12 months hospitalization.

Material improvement means lessening or absence of

clinical symptoms, and X-ray findings of a stationary

or retrogressive lesion.

6731 Tuberculosis, pulmonary, chronic, inactive:

Depending on the specific findings, rate residuals as

interstitial lung disease, restrictive lung disease, or,

when obstructive lung disease is the major residual, as

chronic bronchitis (DC 6600). Rate thoracoplasty as

removal of ribs under DC 5297.

Note: A mandatory examination will be requested immediately

following notification that active tuberculosis evaluated

under DC 6730 has become inactive. Any change in

evaluation will be carried out under the provisions of

Sec. 3.105(e).

6732 Pleurisy, tuberculous, active or inactive:

Rate under Secs. 4.88c or 4.89, whichever is appropriate.

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NONTUBERCULOUS DISEASES

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6817 Pulmonary Vascular Disease:

Primary pulmonary hypertension, or; chronic pulmonary

thromboembolism with evidence of pulmonary hypertension,

right ventricular hypertrophy, or cor pulmonale, or;

pulmonary hypertension secondary to other obstructive

disease of pulmonary arteries or veins with evidence of

right ventricular hypertrophy or cor pulmonale............ 100

Chronic pulmonary thromboembolism requiring anticoagulant

therapy, or; following inferior vena cava surgery without

evidence of pulmonary hypertension or right ventricular

dysfunction............................................... 60

Symptomatic, following resolution of acute pulmonary

embolism.................................................. 30

Asymptomatic, following resolution of pulmonary

thromboembolism........................................... 0

Note: Evaluate other residuals following pulmonary embolism

under the most appropriate diagnostic code, such as

chronic bronchitis (DC 6600) or chronic pleural effusion

or fibrosis (DC 6844), but do not combine that evaluation

with any of the above evaluations.

6819 Neoplasms, malignant, any specified part of

respiratory system exclusive of skin growths.............. 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.

6820 Neoplasms, benign, any specified part of respiratory

system. Evaluate using an appropriate respiratory analogy.

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Bacterial Infections of the Lung

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

6822 Actinomycosis.

6823 Nocardiosis.

6824 Chronic lung abscess.

General Rating Formula for Bacterial Infections of the Lung

(diagnostic codes 6822 through 6824):

Active infection with systemic symptoms such as fever,

night sweats, weight loss, or hemoptysis.............. 100

Depending on the specific findings, rate residuals as

interstitial lung disease, restrictive lung disease, or,

when obstructive lung disease is the major residual, as

chronic bronchitis (DC 6600).

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Interstitial Lung Disease

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6825 Diffuse interstitial fibrosis (interstitial pneumonitis,

fibrosing alveolitis).

6826 Desquamative interstitial pneumonitis.

6827 Pulmonary alveolar proteinosis.

6828 Eosinophilic granuloma of lung.

6829 Drug-induced pulmonary pneumonitis and fibrosis.

6830 Radiation-induced pulmonary pneumonitis and fibrosis.

6831 Hypersensitivity pneumonitis (extrinsic allergic

alveolitis).

6832 Pneumoconiosis (silicosis, anthracosis, etc.).

6833 Asbestosis.

General Rating Formula for Interstitial Lung Disease

(diagnostic codes 6825 through 6833):

Forced Vital Capacity (FVC) less than 50-percent

predicted, or; Diffusion Capacity of the Lung for

Carbon Monoxide by the Single Breath Method (DLCO

(SB)) less than 40-percent predicted, or; maximum

exercise capacity less than 15 ml/kg/min oxygen

consumption with cardiorespiratory limitation, or; cor

pulmonale or pulmonary hypertension, or; requires

outpatient oxygen therapy............................. 100

FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40-

to 55-percent predicted, or; maximum exercise

capacity of 15 to 20 ml/kg/min oxygen consumption with

cardiorespiratory limitation.......................... 60

FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56-

to 65-percent predicted.............................. 30

[[Page 46731]]

FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66-

to 80-percent predicted.............................. 10

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Mycotic Lung Disease

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

6834 Histoplasmosis of lung.

6835 Coccidioidomycosis.

6836 Blastomycosis.

6837 Cryptococcosis.

6838 Aspergillosis.

6839 Mucormycosis.

General Rating Formula for Mycotic Lung Disease (diagnostic

codes 6834 through 6839):

Chronic pulmonary mycosis with persistent fever, weight

loss, night sweats, or massive hemoptysis............. 100

Chronic pulmonary mycosis requiring suppressive therapy

with no more than minimal symptoms such as occasional

minor hemoptysis or productive cough.................. 50

Chronic pulmonary mycosis with minimal symptoms such as

occasional minor hemoptysis or productive cough....... 30

Healed and inactive mycotic lesions, asymptomatic...... 0

Note: Coccidioidomycosis has an incubation period up to 21

days, and the disseminated phase is ordinarily manifest

within six months of the primary phase. However, there are

instances of dissemination delayed up to many years after

the initial infection which may have been unrecognized.

Accordingly, when service connection is under

consideration in the absence of record or other evidence

of the disease in service, service in southwestern United

States where the disease is endemic and absence of

prolonged residence in this locality before or after

service will be the deciding factor.

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

Restrictive Lung Disease

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

6840 Diaphragm paralysis or paresis.

6841 Spinal cord injury with respiratory insufficiency.

6842 Kyphoscoliosis, pectus excavatum, pectus carinatum.

6843 Traumatic chest wall defect, pneumothorax, hernia, etc.

6844 Post-surgical residual (lobectomy, pneumonectomy, etc.).

6845 Chronic pleural effusion or fibrosis.

General Rating Formula for Restrictive Lung Disease

(diagnostic codes 6840 through 6845):

FEV-1 less than 40 percent of predicted value, or; the

ratio of Forced Expiratory Volume in one second to

Forced Vital Capacity (FEV-1/FVC) less than 40

percent, or; Diffusion Capacity of the Lung for Carbon

Monoxide by the Single Breath Method (DLCO (SB)) less

than 40-percent predicted, or; maximum exercise

capacity less than 15 ml/kg/min oxygen consumption

(with cardiac or respiratory limitation), or; cor

pulmonale (right heart failure), or; right ventricular

hypertrophy, or; pulmonary hypertension (shown by Echo

or cardiac catheterization), or; episode(s) of acute

respiratory failure, or; requires outpatient oxygen

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

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of

40 to 55 percent, or; DLCO (SB) of 40- to 55-percent

predicted, or; maximum oxygen consumption of 15 to 20

ml/kg/min (with cardiorespiratory limit).............. 60

FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of

56 to 70 percent, or; DLCO (SB) 56- to 65-percent

predicted............................................. 30

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of

71 to 80 percent, or; DLCO (SB) 66- to 80-percent

predicted............................................. 10

Or rate primary disorder.

Note (1): A 100-percent rating shall be assigned for

pleurisy with empyema, with or without pleurocutaneous

fistula, until resolved.

Note (2): Following episodes of total spontaneous

pneumothorax, a rating of 100 percent shall be assigned as

of the date of hospital admission and shall continue for

three months from the first day of the month after

hospital discharge.

Note (3): Gunshot wounds of the pleural cavity with bullet

or missile retained in lung, pain or discomfort on

exertion, or with scattered rales or some limitation of

excursion of diaphragm or of lower chest expansion shall

be rated at least 20-percent disabling. Disabling injuries

of shoulder girdle muscles (Groups I to IV) shall be

separately rated and combined with ratings for respiratory

involvement. Involvement of Muscle Group XXI (DC 5321),

however, will not be separately rated.

6846 Sarcoidosis:

Cor pulmonale, or; cardiac involvement with congestive

heart failure, or; progressive pulmonary disease with

fever, night sweats, and weight loss despite treatment.... 100

Pulmonary involvement requiring systemic high dose

(therapeutic) corticosteroids for control................. 60

Pulmonary involvement with persistent symptoms requiring

chronic low dose (maintenance) or intermittent

corticosteroids........................................... 30

Chronic hilar adenopathy or stable lung infiltrates without

symptoms or physiologic impairment........................ 0

Or rate active disease or residuals as chronic bronchitis

(DC 6600) and extra-pulmonary involvement under specific

body system involved......................................

6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed):

Chronic respiratory failure with carbon dioxide retention

or cor pulmonale, or; requires tracheostomy............... 100

Requires use of breathing assistance device such as

continuous airway pressure (CPAP) machine................. 50

Persistent day-time hypersomnolence........................ 30

Asymptomatic but with documented sleep disorder breathing.. 0

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\1\ Review for entitlement to special monthly compensation under Sec.

3.350 of this chapter.

[FR Doc. 96-22593 Filed 9-4-96; 8:45 am]

BILLING CODE 8320-01-P