Schedule for Rating Disabilities; Mental Disorders

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AF01

Schedule for Rating Disabilities; Mental Disorders

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the sections of the Department of

Veterans Affairs (VA) Schedule for Rating Disabilities pertaining to

Mental Disorders. The intended effect of this action is to update the

portion of the rating schedule that addresses mental disorders to

ensure that it uses current medical terminology and unambiguous

criteria, and that it reflects medical advances that have occurred

since the last review.

EFFECTIVE DATE: This amendment is effective November 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) 273-7230.

SUPPLEMENTARY INFORMATION: VA published in the Federal Register of

October 26, 1995 (60 FR 54825-31) a proposal to amend 38 CFR 4.16 and

4.125 through 4.132, those sections of the rating schedule that address

mental disorders. Interested persons were invited to submit written

comments on or before December 26, 1995. We received comments from the

American Legion, the Disabled American Veterans, the Veterans of

Foreign Wars, the Vietnam Veterans of America, the American

Psychological Association, the American Psychiatric Association, the

Association of VA Chief Psychologists, and a concerned individual.

Two commenters felt that sleep and sexual disorders should be

included in the rating schedule because they may affect employability

and functioning.

Narcolepsy, a sleep disorder, is evaluated under diagnostic code

(DC) 8108 in the neurological section of the schedule. We have

published a proposed revision to the respiratory section of the

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

that would add a diagnostic code (6846) and evaluation criteria for

sleep apnea syndromes, another of the sleep disorders. However, in our

judgment, other sleep disorders or sexual disorders would be service-

connected so infrequently that they do not warrant separate diagnostic

codes and evaluation criteria in the schedule. Any that are determined

to be service-connected can be evaluated under ``other and unspecified

neurosis'' (DC 9410) or other appropriate analogous condition and be

evaluated under the general rating formula for mental disorders. (See

38 CFR 4.20.)

Another commenter suggested that we establish zero-percent

evaluations for sexual dysfunction and personality disorders so that,

although VA would not compensate for the conditions, they could be

service-connected for treatment purposes.

A veteran is entitled to VA medical care for any mental disorder,

including any sexual disorder, that is service-connected, i.e., is

incurred in, or aggravated by, active military service. Whether a

disability is service-connected, for treatment or compensation

purposes, must be determined on a case by case basis. The determination

is not based on whether the condition is included in the rating

schedule; it is made under the VA regulations beginning at 38 CFR

3.303. Therefore, adding sexual dysfunction and personality disorders

to the rating schedule could not have the effect of conferring service

connection for treatment purposes, as the commenter believes, and we

make no change based on this comment.

One commenter suggested that personality disorders should be

included in the rating schedule.

As 38 CFR 4.1 emphasizes, the rating schedule is primarily a guide

in the evaluation of disability resulting from diseases or injuries

encountered as a result of or incident to military service. Since 38

CFR 3.303(c) specifically states that personality disorders are not

diseases or injuries within the meaning of applicable legislation, they

cannot be service-connected, and it would be inappropriate to include

them in the rating schedule.

[[Page 52696]]

One commenter stated that the notice of proposed rulemaking erred

in stating that DSM-IV (Diagnostic and Statistical Manual of Mental

Disorders, 4th edition) categorizes dementia associated with alcoholism

and drugs as subtypes of dementia due to a general medical condition.

The commenter points out that DSM-IV has separate categories for

dementias associated with alcoholism and other drugs and suggested that

VA establish a category for substance-induced dementia.

We proposed that the title of DC 9326 be ``Dementia due to other

neurologic or general medical conditions (endocrine disorders,

metabolic disorders, drugs, alcohol, poisons, Pick's disease, brain

tumors, etc.).'' In response to this comment, and for the sake of

greater accuracy, we have revised the title to ``Dementia due to other

neurologic or general medical conditions (endocrine disorders,

metabolic disorders, Pick's disease, brain tumors, etc.) or that are

substance-induced (drugs, alcohol, poisons).''

Another commenter suggested that by addressing the 12 dementias

described in DSM-IV under only six categories, VA ignores important

differences between specific types of dementias, such as whether or not

they are treatable.

The six categories that we proposed, which are representative

examples of the broad range of causes of dementias, are adequate for

VA's purpose, which is to evaluate the severity of dementias when they

occur. Since all dementias are evaluated under the General Rating

Formula for Mental Disorders, increasing the number of categories would

not affect evaluations.

The same commenter recommended that we retain the previous title of

DC 9310, ``dementia, primary, degenerative,'' because it is more

accurate and appropriate than ``dementia of the Alzheimer's type,'' as

DSM-IV lists the condition.

DSM-IV is the basis for diagnosing and classifying mental disorders

in the United States. Examination reports from both VA and non-VA

practitioners will generally use the nomenclature adopted in DSM-IV,

and it is important that the schedule use the same nomenclature

whenever possible. Since the commenter offered no other reason for

deviating from DSM-IV in this instance, we have retained the term

``dementia of the Alzheimer's type'' as proposed.

One commenter recommended that we retain the directions formerly

found in Secs. 4.125 and 4.126, which stated that the psychiatric

nomenclature employed is based upon the Diagnostic and Statistical

Manual of Mental Disorders; that it is imperative that rating personnel

familiarize themselves thoroughly with this manual; and, that a

disorder will be diagnosed in accordance with the APA manual (DSM).

The revised mental disorders sections contain similar directives

about the use of DSM-IV as the former schedule had about DSM-III. If

the diagnosis of a mental disorder does not conform to DSM-IV, or is

not supported by the findings on the examination report, Sec. 4.125(a)

requires the rating agency to return the report to the examiner to

substantiate the diagnosis. Further, a note in Sec. 4.130 states that

the nomenclature in the schedule is based on DSM-IV and that rating

agencies must be thoroughly familiar with this manual to properly

implement the directives in Sec. 4.125 through Sec. 4.129 and to apply

the general rating formula for mental disorders in Sec. 4.130. This

information is direct and unambiguous, and therefore there is no need

to include the same material in Secs. 4.125 and 4.126.

Three commenters suggested the rating schedule cite only ``the

current edition of the DSM'' rather than ``DSM-IV,'' which they felt

would eliminate the need for a regulatory change when a new edition is

published.

VA will need to study future revisions of the DSM to determine

whether they warrant making changes in the schedule. However, such

changes would require proper notice to the public through publication

for review and comment in the Federal Register; having the rating

schedule refer only to the ``current edition'' would not give

sufficient notice under the Administrative Procedures Act. Also, VA

does not avoid the need to revise the rating schedule by referring to

the ``current edition'' of the DSM. This revision, for example, makes

substantive revisions to the schedule itself based upon DSM-IV. If the

regulations were to refer to the ``current edition'' of DSM, and

another edition was published without the schedule being revised in

accordance with that edition, the regulations would be internally

inconsistent.

Three commenters objected to the proposed language in Sec. 4.126(a)

that would require the rating agency to assign an evaluation based on

all the evidence of record ``rather than on the examiner's assessment

of the level of disability at the moment of the examination.'' Two

commenters suggested that revising the phrase to ``rather than solely

on the examiner's assessment of the level of disability at the moment

of the examination'' might be clearer.

Since such a change might more clearly indicate that the examiner's

assessment is a significant, but not the only, factor in determining

the level of disability, we have revised the sentence as the commenters

suggested.

One commenter suggested two changes to the proposed Sec. 4.126(a).

Because the commenter felt the proposed language does not clearly

instruct the adjudicator to assess current findings in light of the

history of the disability, the commenter recommended that the

regulation direct the rating agency to assign an evaluation based on

all evidence of record ``as it bears on current occupational and social

impairment rather than solely on isolated examination findings which

may only represent episodic changes.'' The commenter also suggested

that in order to prevent rating agencies from overestimating the value

of short periods of remission, we modify the language to require rating

agencies to consider the veteran's capacity for adjustment during

periods of sustained remission.

The language proposed for Sec. 4.126(a) reinforces Sec. 4.2, which

requires the rating agency to interpret reports of examination in light

of the entire recorded history. Furthermore, Sec. 4.126(a) requires

rating agencies to consider the length of remissions and the veteran's

capacity for adjustment during periods of remission, and to assign an

evaluation based on all evidence of record that bears on occupational

and social impairment. ``Sustained'' is a subjective term that may not

be applied consistently, and, in our judgment, the language as proposed

is more likely to assure that the length of remissions is considered

and given appropriate weight in the context of all evidence of record.

We have, therefore, made no change based on these suggestions.

One commenter opposed the proposed deletion of the statement in

former Sec. 4.130 that ``the examiner's analysis of the

symptomatology'' is one of the ``essentials'' and objected to the

statement in the preamble that VA will no longer rely on a subjective

determination as to the degree of impairment.

The evaluation levels in the proposed general rating formula for

mental disorders are based on the effects of the signs and symptoms of

mental disorders. To be adequate for evaluation purposes under that

formula, an examination report must describe an individual's signs and

symptoms as well as their effects on occupational and social

functioning. In essence, we have restructured the evaluation criteria

so

[[Page 52697]]

that it is the severity of the effects of the symptoms as described by

the examiner that determines the rating. As a result, the statement

previously contained in Sec. 4.130 regarding the examiner's analysis of

symptomatology would be redundant and is no longer necessary. We have

therefore made no changes based on this comment.

Another commenter suggested that the use of the word ``severe'' at

the 70-percent level in the general rating formula for mental disorders

violates the principle that vague, subjective terms should not be used

in the rating schedule. The commenter also contends that the use of

``severe'' by an examining doctor to characterize a mental disorder

will often be used as the sole basis for granting a 70-percent

evaluation because a 70-percent evaluation requires ``severe''

occupational and social impairment. The commenter therefore suggested

that we delete the word ``severe'' in the general rating formula for

mental disorders.

Since it is VA's intent that the evaluation will be determined by

the examiner's description of the signs and symptoms and their effects

rather than by an overall characterization of the condition, we have

deleted the word ``severe'' from the 70-percent criteria in the general

rating formula for mental disorders, as the commenter suggested.

One commenter suggested we require a social and industrial survey

as an integral part of an overall rating evaluation.

A social and industrial survey is not necessary to evaluate every

mental disorder; the information provided by the examiner will

generally be sufficient to determine the proper evaluation. Whether the

additional information provided by a social and industrial survey is

necessary to assure an accurate evaluation is best determined by either

the examiner or rating agency on a case by case basis. Requiring a

survey in every case would serve no purpose and would therefore cause

unwarranted delays in the processing of claims.

One commenter stated that a 10-percent evaluation when symptoms are

controlled by continuous medication is too low to allow for the side

effects of medication, which may themselves be incapacitating.

In our judgment, 10 percent is an adequate evaluation in the

average situation where symptoms of a mental disorder are controlled by

continuous medication. 38 CFR 3.310(a) states that a disability that is

proximately due to a service-connected disease or injury shall be

service-connected and considered as part of the original condition.

Therefore, disabling conditions that result from medication for a

service-connected mental disorder and that warrant more than a ten

percent evaluation can be service-connected and separately evaluated

under an appropriate diagnostic code.

One commenter suggested that we adopt separate rating formulae

tailored to each psychiatric disorder rather than using a general

rating formula for mental disorders as proposed.

Many of the signs, symptoms, and effects of mental disorders are

not unique to specific diagnostic entities, as evidenced by the fact

that the Global Assessment of Functioning Scale in DSM-IV uses a single

set of criteria for assessing psychological, social, and occupational

functioning in all mental disorders. The symptoms in the general rating

formula for mental disorders are representative examples of symptoms

that often result in specific levels of disability. In our judgment,

using a general rating formula for mental disorders is a better way to

assure that mental disorders producing similar impairment will be

evaluated consistently.

One commenter suggested that we evaluate post-traumatic stress

disorder (PTSD) not under a general rating formula for mental disorders

but under a separate formula based on the frequency of symptoms

particular to PTSD, i.e., nightmares, flashbacks, troubling intrusive

memories, uncontrollable rage, and startle response.

The distinctive PTSD symptoms listed by the commenter are used to

diagnose PTSD rather than evaluate the degree of disability resulting

from the condition. Although certain symptoms must be present in order

to establish the diagnosis of PTSD, as with other conditions it is not

the symptoms, but their effects, that determine the level of

impairment. For example, it is not the presence of ``flashbacks,'' per

se, but their effects, such as impaired impulse control, anxiety, or

difficulty adapting to stressful situations, that determine the

evaluation. We have, therefore, made no changes based on this

suggestion.

One commenter argued that the proposed criteria for a total

evaluation include more symptoms of thought disorders than of mood

disorders, and, as a result, mood disorders are less likely than

thought disorders to be evaluated as totally disabling.

As previously discussed, it is the severity of the effects of a

mental disorder that determine the rating. To be assigned a 100 percent

rating, a mental disorder must cause total occupational and social

impairment. Mood disorders that are characterized by grossly

inappropriate behavior, persistent danger of hurting self or others, or

intermittent inability to perform activities of daily living, may cause

total occupational and social impairment in some individuals. Since the

evaluation criteria would clearly support a total evaluation for a mood

disorder under those circumstances, we make no change based on this

comment.

Another commenter suggested that we determine evaluation levels on

the basis of an individual's earnings. For example, if there were no

gainful employment, or if earnings did not exceed $3600 per year over a

two year period, a disability would be considered totally disabling.

Ratings are based primarily upon the average impairment in earning

capacity, that is, upon the economic or industrial handicap which must

be overcome and not from individual success in overcoming it (see 38

CFR 4.15). Defining levels of disability for mental disorders in terms

of an individual's earnings would be inconsistent with that principle

and, furthermore, would not take into account other variables that

might affect earnings, such as the presence and severity of other

service-connected or non-service-connected disabilities, differences in

the prevailing wage in different localities, part time employment, etc.

For these reasons, it is not feasible to evaluate mental disabilities

based on the veteran's earnings.

One commenter said that the evaluation criteria for the 50-percent

and the 70-percent levels are too complicated and will therefore be

difficult to apply; however, the commenter offered no alternative

criteria for us to consider.

The criteria in the general rating formula for mental disorders

include examples and indicate specific effects of social and

occupational impairment for various evaluation levels. The 50-percent

level, for example, requires ``reduced reliability and productivity,''

while the 70-percent level requires ``deficiencies in most areas, such

as work, school, family relations, judgment, thinking, or mood.''

Examples of signs and symptoms that are typically associated with that

level of impairment are listed at each level. This formula offers

sufficient guidance to the rating agency to assure consistent

evaluations, but not so much detail that it is impractical or

inflexible. Since the commenter offered no alternative method of

evaluation for us to consider, we have adopted the general rating

formula as proposed.

[[Page 52698]]

One commenter suggested that Sec. 4.127 be revised to establish

that mental retardation and personality disorders, while not

disabilities for compensation purposes, can be considered in

determining whether a veteran is permanently and totally disabled for

non-service-connected pension purposes.

As proposed, Sec. 4.127 would have stated that mental retardation

and personality disorders would not be considered as ``disabilities

under the terms of the schedule.'' For the sake of clarity, we have

revised the proposed language of Sec. 4.127 to state that those

conditions are not ``diseases or injuries for compensation purposes,

and, except as provided in Sec. 3.310(a) of this chapter, disability

resulting from them may not be service-connected.''

One commenter said that Sec. 4.127 should explain that personality

disorders may be service-connected secondary to epilepsy and other

conditions.

38 CFR 3.310(a) states that a disability that is proximately due to

or the result of a service-connected disease or injury shall be service

connected and considered part of the original condition. Therefore,

organic personality disorders that develop secondary to service-

connected head trauma, epilepsy, etc., (called ``personality change due

to a general medical condition'' in DSM-IV) will be service-connected

as secondary to those conditions and evaluated under the general rating

formula for mental disorders. To reinforce that principle, we have

added the phrase, ``except as provided in Sec. 3.310(a) of this

chapter,'' to Sec. 4.127, as discussed above. For the sake of clarity,

we have also revised the title of DC 9327, organic mental disorder,

other, to include ``personality change due to a general medical

condition.''

The former Sec. 4.127 addressed mental deficiency and personality

disorders and stated that ``superimposed psychotic disorders developing

after enlistment, i.e., mental deficiency with psychotic disorder, or

personality disorder with psychotic disorder, are to be considered as

disabilities analogous to, and ratable as, schizophrenia, unless

otherwise diagnosed.'' We proposed to revise Sec. 4.127 to state that a

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

mental retardation or a personality disorder may be a disability for VA

compensation purposes.

Two commenters contend that it is not feasible to attribute signs

and symptoms to one of two or more coexisting conditions, and another

commenter submitted a medical statement addressing the potential

difficulty of such an undertaking.

Our intent in proposing the revision was to clarify that any mental

disorders, not only psychotic disorders, that are incurred or

aggravated in service may be disabilities for VA compensation purposes,

even if superimposed upon mental retardation or a personality disorder.

In view of the commenters' concerns, however, and in order to prevent

any misunderstanding, we have revised this section. We deleted ``a

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

mental retardation or a personality disorder may be a disability for VA

compensation purposes'' in Sec. 4.127 and substituted the sentence,

``However, disability resulting from a mental disorder that is

superimposed upon mental retardation or a personality disorder may be

service-connected.'' The need to distinguish the effects of one

condition from those of another is not unique to mental disorders, but

occurs whenever two conditions, one service-connected and one not,

affect similar functions or anatomic areas. When it is not possible to

separate the effects of the conditions, VA regulations at 38 CFR 3.102,

which require that reasonable doubt on any issue be resolved in the

claimant's favor, clearly dictate that such signs and symptoms be

attributed to the service-connected condition.

One commenter stated that the proposed change to Sec. 4.127

precludes personality disorders from being considered as part of a

service-connected disability, which the commenter felt represented an

arbitrary change.

The previous schedule merely directed that psychotic disorders

superimposed upon mental deficiency or personality disorder be

considered analogous to, and ratable as, schizophrenia. It did not

address how to carry out the evaluation, or specifically how to assess

the signs and symptoms of the preexisting condition. The revised

Sec. 4.127 represents no change in rating procedures, except for

expanding this provision to include all mental disorders. As explained

above, procedures for determining an evaluation in such cases are not

unique to mental disorders and have not been changed.

One commenter felt that the development of a mental disorder during

service should establish aggravation of any preexisting personality

disorder, for purposes of disability compensation; another felt that a

personality disorder that worsens during service could affect

employability and thus warrant disability compensation.

Section 4.127 establishes that mental retardation and personality

disorders are not diseases or injuries for VA compensation purposes and

that disability resulting from them may not be service-connected.

Service connection of personality disorders, whether on a direct basis

or by aggravation, is therefore prohibited, and we have made no change

based on these comments.

The previous rating schedule stated that social inadaptability was

to be evaluated only as it affected industrial inadaptability and was

not to be used as the sole basis for assigning a percentage evaluation

(Sec. 4.129). We proposed to retain this concept by stating in

Sec. 4.126(b) that the rating agency will consider the extent of social

impairment, but shall not assign an evaluation solely on the basis of

social impairment. Three commenters addressed this issue.

One commenter suggested that we revise Sec. 4.126(b) to place

greater emphasis on social impairment as a good indicator of the level

of industrial impairment.

The evaluation criteria in the general rating formula for mental

disorders include facets of both occupational and social impairment,

and both may be taken into consideration in the evaluation of a mental

disorder. Revision of Sec. 4.126(b) to place greater emphasis on social

impairment is therefore unnecessary because the extent of social

impairment is an inherent part of the evaluation criteria. We have

therefore made no revision based on this comment.

Two commenters suggested that we revise Sec. 4.126(b) to allow

service connection at zero percent for conditions that produce social

impairment, but no occupational impairment, so that veterans would be

eligible for VA medical treatment.

As previously discussed, service-connected conditions are entitled

to VA medical care, but whether a condition is service-connected is

determined under the VA regulations beginning at 38 CFR 3.303, not

under the rating schedule. It would therefore be inappropriate to adopt

this suggestion.

Two commenters urged that VA include substance abuse disorders in

the disability rating schedule because they frequently affect

employability, and any mental disorder that affects employment should

be covered by the rating system.

The most common substance abuse disorders are abuse of alcohol and

drugs. Since they are addressed

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elsewhere in VA regulations (see 38 CFR 3.1 and 3.301(a)), they need

not be included in the rating schedule.

Two commenters felt that the term ``psychic trauma'' in the title

of Sec. 4.129, Mental disorders due to psychic trauma, connotes

extrasensory or paranormal influences on mental processes and suggested

that we substitute the term ``traumatic stress disorders.''

Based on this suggestion, we have retitled Sec. 4.129 as ``Mental

disorders due to traumatic stress.''

As proposed, Sec. 4.125 would require a rating agency to determine

whether a change in diagnosis is a progression of a prior diagnosis, a

correction of an error in a previous diagnosis, or the development of a

new and separate condition. Two commenters suggested that a fourth

reason for a change in diagnosis, the use of a new diagnostic term not

previously available to rating agencies, be added to the list.

A ``new diagnostic term not previously available to rating

agencies'' necessarily implies a diagnostic term that has evolved since

publication of DSM-IV. 38 CFR 4.125(a) requires that the diagnosis of a

mental disorder must conform to DSM-IV. Therefore, the only diagnostic

terms for mental disorders that are acceptable for rating purposes are

those in DSM-IV. Appendices in DSM-III, DSM-III-R, and DSM-IV highlight

changes in terminology from the previous DSM editions, and rating

agencies may refer to them to reconcile differences from earlier

terminology, if necessary. However, diagnostic terms that postdate DSM-

IV are not acceptable for rating purposes, and we make no change based

on this comment.

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

continuous period of hospitalization lasting six months or more, we

proposed to require in Sec. 4.128 that the rating agency continue the

total evaluation indefinitely and schedule an examination six months

after the veteran is discharged or released to nonbed care and that a

change in evaluation based on that examination would be subject to the

notice and effective date provisions of 38 CFR 3.105(e). One commenter

suggested that we add references to 38 CFR 3.344, ``Stabilization of

disability evaluations,'' and 3.340, ``Total and permanent total

ratings and unemployability.''

Sections 3.340 and 3.344 are not limited to mental disorders, but

are generally applicable, and, as such, must always be considered by

rating agencies when revising evaluations. The provisions of Sec. 4.128

ensure a total evaluation during a period of adjustment after a lengthy

hospitalization for a mental disorder. Since Secs. 3.340 and 3.344

would not apply until that temporary total evaluation is revised

following the examination required by Sec. 4.128, we make no change

based on this comment.

One commenter suggested that we retain in Sec. 4.129 historical

information about stress-induced disorders formerly found in

Sec. 4.131.

The expository material that we proposed to remove from Sec. 4.131

described the etiology and diagnosis of stress-induced disorders; it

did not set forth VA policy or establish procedures that rating

agencies must follow when evaluating those conditions. That material is

therefore not appropriate in a regulation, and we have made no change

based on this suggestion.

One commenter objected to the proposed removal of language from

Sec. 4.130 specifically stating that two of the most important

determinants of disability are time lost from gainful work and decrease

in work efficiency.

Those principles are reflected in the evaluation criteria of the

general rating formula for mental disorders, which evaluate the signs

and symptoms of mental disorders according to their effects, i.e.,

reduced reliability and productivity, occasional decreases in work

efficiency, intermittent periods of inability to perform occupational

work tasks, etc. Comments about work attendance and efficiency would be

redundant in Sec. 4.130, and we have made no change based on this

comment.

38 CFR 4.16 provides that any veteran unable to secure or follow a

substantially gainful occupation because of service-connected

disabilities will be awarded a total evaluation even though the

schedular evaluation is less than total; it also establishes criteria

for establishing entitlement to such extra-schedular total evaluations.

We proposed to delete Sec. 4.16(c), which stated that mental disorders

meeting certain criteria should be assigned a 100-percent evaluation

under the schedule, rather than an extra-schedular total evaluation.

One commenter did not object to the proposed deletion of Sec. 4.16(c),

but noted that, for a veteran with a single disability, Sec. 4.16(a)

requires that the disability be 60 percent or more disabling to

establish entitlement to a total evaluation due to unemployability. The

commenter stated that because there is no 60-percent evaluation level

in the general rating formula for mental disorders, veterans with

mental disorders would be disadvantaged. The commenter recommended that

we revise Sec. 4.16(a) to require a 50-percent rating for a single

disability rather than a 60-percent rating, and to state that total

disability ratings shall (rather than may) be assigned when a veteran's

disabilities satisfy specified criteria.

Since revisions to Sec. 4.16(a) and (b), which establish general

criteria for total disability evaluations for compensation because an

individual is unemployable, are beyond the scope of this rulemaking,

which is specific to mental disorders, we make no change. VA is

addressing the issue of individual unemployability, including the

provisions of 38 CFR 4.16(a) and (b), in a separate rulemaking (RIN

2900-AH21). We note, however, that veterans with mental disorders are

not disadvantaged under current Sec. 4.16. Well-established regulatory

procedures in 38 CFR 4.16(b) authorize VA to assign a total evaluation

for unemployability to a veteran with a single disability evaluated

less than 60-percent disabling, if the disability renders the veteran

unemployable.

One commenter encouraged VA to recognize the value of objective

assessment by psychological and neuropsychological tests and

incorporate the use of these diagnostic tools within the disability

rating system.

The use of specific diagnostic tools, such as psychological and

neuropsychological testing, may be requested at the discretion of an

examiner. However, since such tests are primarily for diagnostic,

rather than evaluation, purposes, it would serve no purpose to address

them in the rating schedule, which is a guide to the evaluation of

disabilities.

One commenter suggested that we revise the cross references in 38

CFR 4.13 to reflect changes adopted in this rulemaking.

We have amended 38 CFR 4.13 accordingly.

The same commenter suggested that we revise the note regarding

mental disorders in epilepsies under diagnostic codes 8910-8914 in the

schedule for rating neurological disorders to correct the diagnostic

terms and cross-referenced diagnostic codes.

The note in Sec. 4.124a is included in the schedule for rating

neurological conditions and convulsive disorders and is therefore

beyond the scope of this rulemaking. VA is revising the portion of the

rating schedule that addresses neurological disorders in a separate

rulemaking, and we will address those issues in that revision.

One commenter recommended that VA consider incorporating the

International Classification of Impairments, Disabilities, and

Handicaps (ICIDH) into the VA schedule for rating mental disorders. The

ICIDH, which focuses on functionality, was

[[Page 52700]]

developed and issued by the World Health Organization (WHO), in 1980.

WHO is currently revising it. When the revised version is published, VA

will review it to assess its usefulness for VA rating purposes.

On further review, we have revised the proposed language of

Sec. 4.129 for the sake of clarity and have also updated the term

``rating board'' to ``rating agency'' throughout the mental disorders

sections.

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 (RFA), 5

U.S.C. 601-612. The reason for this certification is that this

amendment would not directly affect any small entities. Only VA

beneficiaries could be directly affected. Therefore, pursuant to 5

U.S.C. 605(b), this amendment is exempt from the initial and final

regulatory flexibility analysis requirements of sections 603 and 604.

This rule has been reviewed under Executive Order 12866 by the

Office of Management and Budget.

The Catalog of Federal Domestic Assistance program numbers are

64.104 and 64.109.

List of Subjects in 38 CFR Part 4

Disability benefits, Individuals with disabilities, Pensions,

Veterans.

Approved: September 9, 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 A--[Amended]

2. In Sec. 4.13, the third sentence is revised to read as follows:

Sec. 4.13 Effect of change of diagnosis.

* * * * *

The relevant principle enunciated in Sec. 4.125, entitled

``Diagnosis of mental disorders,'' should have careful attention in

this connection.

* * * * *

Sec. 4.16 [Amended]

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

Subpart B--[Amended]

4. Section 4.125 is revised to read as follows:

Sec. 4.125 Diagnosis of mental disorders.

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

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

rating agency shall return the report to the examiner to substantiate

the diagnosis.

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

agency shall determine whether the new diagnosis represents progression

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

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

the available records what the change of diagnosis represents, the

rating agency shall return the report to the examiner for a

determination.

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

5. Section 4.126 is revised to read as follows:

Sec. 4.126 Evaluation of disability from mental disorders.

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

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

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

during periods of remission. The rating agency shall assign an

evaluation based on all the evidence of record that bears on

occupational and social impairment rather than solely on the examiner's

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

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

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

shall not assign an evaluation solely on the basis of social

impairment.

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

shall be evaluated under the general rating formula for mental

disorders; neurologic deficits or other impairments stemming from the

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

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

other cognitive disorder (see Sec. 4.25).

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

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

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

aspect of the condition (see Sec. 4.14).

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

6. Section 4.127 is revised to read as follows:

Sec. 4.127 Mental retardation and personality disorders.

Mental retardation and personality disorders are not diseases or

injuries for compensation purposes, and, except as provided in

Sec. 3.310(a) of this chapter, disability resulting from them may not

be service-connected. However, disability resulting from a mental

disorder that is superimposed upon mental retardation or a personality

disorder may be service-connected.

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

7. Section 4.128 is revised to read as follows:

Sec. 4.128 Convalescence ratings following extended hospitalization.

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

continuous period of hospitalization lasting six months or more, the

rating agency shall continue the total evaluation indefinitely and

schedule a mandatory examination six months after the veteran is

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

that or any subsequent examination shall be subject to the provisions

of Sec. 3.105(e) of this chapter.

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

8. Section 4.129 is revised to read as follows:

Sec. 4.129 Mental disorders due to traumatic stress.

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

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

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

evaluation of not less than 50 percent and schedule an examination

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

determine whether a change in evaluation is warranted.

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

Secs. 4.130 and 4.131 [Removed]

9. Sections 4.130 and 4.131 are removed.

Sec. 4.132 [Redesignated as Sec. 4.130]

10. Section 4.132 is redesignated as Sec. 4.130 and newly

redesignated Sec. 4.130 is revised to read as follows:

Sec. 4.130 Schedule of ratings--mental disorders.

The nomenclature employed in this portion of the rating schedule is

based upon the Diagnostic and Statistical Manual of Mental Disorders,

Fourth Edition, of the American Psychiatric Association (DSM-IV).

Rating agencies must be thoroughly familiar with this manual to

properly implement the directives in Sec. 4.125 through Sec. 4.129 and

[[Page 52701]]

to apply the general rating formula for mental disorders in Sec. 4.130.

The schedule for rating for mental disorders is set forth as follows:

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

Rating

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

Schizophrenia and Other Psychotic Disorders

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

9201 Schizophrenia, disorganized type

9202 Schizophrenia, catatonic type

9203 Schizophrenia, paranoid type

9204 Schizophrenia, undifferentiated type

9205 Schizophrenia, residual type; other and unspecified

types

9208 Delusional disorder

9210 Psychotic disorder, not otherwise specified (atypical

psychosis)

9211 Schizoaffective disorder

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

Delirium, Dementia, and Amnestic and Other Cognitive Disorders

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

9300 Delirium

9301 Dementia due to infection (HIV infection, syphilis,

or other systemic or intracranial infections)

9304 Dementia due to head trauma

9305 Vascular dementia

9310 Dementia of unknown etiology

9312 Dementia of the Alzheimer's type

9326 Dementia due to other neurologic or general medical

conditions (endocrine disorders, metabolic disorders,

Pick's disease, brain tumors, etc.) or that are substance-

induced (drugs, alcohol, poisons)

9327 Organic mental disorder, other (including personality

change due to a general medical condition)

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

Anxiety Disorders

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

9400 Generalized anxiety disorder

9403 Specific (simple) phobia; social phobia

9404 Obsessive compulsive disorder

9410 Other and unspecified neurosis

9411 Post-traumatic stress disorder

9412 Panic disorder and/or agoraphobia

9413 Anxiety disorder, not otherwise specified

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

Dissociative Disorders

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

9416 Dissociative amnesia; dissociative fugue;

dissociative identity disorder (multiple personality

disorder)

9417 Depersonalization disorder

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

Somatoform Disorders

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

9421 Somatization disorder

9422 Pain disorder

9423 Undifferentiated somatoform disorder

9424 Conversion disorder

9425 Hypochondriasis

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

Mood Disorders

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

9431 Cyclothymic disorder

9432 Bipolar disorder

9433 Dysthymic disorder

9434 Major depressive disorder

9435 Mood disorder, not otherwise specified

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

Chronic Adjustment Disorder

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

9440 Chronic adjustment disorder

General Rating Formula for Mental Disorders:

Total occupational and social impairment, due to

such symptoms as: gross impairment in thought

processes or communication; persistent delusions

or hallucinations; grossly inappropriate behavior;

persistent danger of hurting self or others;

intermittent inability to perform activities of

daily living (including maintenance of minimal

personal hygiene); disorientation to time or

place; memory loss for names of close relatives,

own occupation, or own name....................... 100

Occupational and social impairment, with

deficiencies in most areas, such as work, school,

family relations, judgment, thinking, or mood, due

to such symptoms as: suicidal ideation;

obsessional rituals which interfere with routine

activities; speech intermittently illogical,

obscure, or irrelevant; near-continuous panic or

depression affecting the ability to function

independently, appropriately and effectively;

impaired impulse control (such as unprovoked

irritability with periods of violence); spatial

disorientation; neglect of personal appearance and

hygiene; difficulty in adapting to stressful

circumstances (including work or a worklike

setting); inability to establish and maintain

effective relationships........................... 70

[[Page 52702]]

Occupational and social impairment with reduced

reliability and productivity due to such symptoms

as: flattened affect; circumstantial,

circumlocutory, or stereotyped speech; panic

attacks more than once a week; difficulty in

understanding complex commands; impairment of

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

only highly learned material, forgetting to

complete tasks); impaired judgment; impaired

abstract thinking; disturbances of motivation and

mood; difficulty in establishing and maintaining

effective work and social relationships........... 50

Occupational and social impairment with occasional

decrease in work efficiency and intermittent

periods of inability to perform occupational tasks

(although generally functioning satisfactorily,

with routine behavior, self-care, and conversation

normal), due to such symptoms as: depressed mood,

anxiety, suspiciousness, panic attacks (weekly or

less often), chronic sleep impairment, mild memory

loss (such as forgetting names, directions, recent

events)........................................... 30

Occupational and social impairment due to mild or

transient symptoms which decrease work efficiency

and ability to perform occupational tasks only

during periods of significant stress, or; symptoms

controlled by continuous medication............... 10

A mental condition has been formally diagnosed, but

symptoms are not severe enough either to interfere

with occupational and social functioning or to

require continuous medication..................... 0

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

Eating Disorders

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

9520 Anorexia nervosa

9521 Bulimia nervosa

Rating Formula for Eating Disorders:

Self-induced weight loss to less than 80 percent of

expected minimum weight, with incapacitating

episodes of at least six weeks total duration per

year, and requiring hospitalization more than

twice a year for parenteral nutrition or tube

feeding........................................... 100

Self-induced weight loss to less than 85 percent of

expected minimum weight with incapacitating

episodes of six or more weeks total duration per

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

Self-induced weight loss to less than 85 percent of

expected minimum weight with incapacitating

episodes of more than two but less than six weeks

total duration per year........................... 30

Binge eating followed by self-induced vomiting or

other measures to prevent weight gain, or

resistance to weight gain even when below expected

minimum weight, with diagnosis of an eating

disorder and incapacitating episodes of up to two

weeks total duration per year..................... 10

Binge eating followed by self-induced vomiting or

other measures to prevent weight gain, or

resistance to weight gain even when below expected

minimum weight, with diagnosis of an eating

disorder but without incapacitating episodes...... 0

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

Note: An incapacitating episode is a period during which bed

rest and treatment by a physician are required.

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

[FR Doc. 96-25569 Filed 10-7-96; 8:45 am]

BILLING CODE 8320-01-P