Intervertebral Disc Syndrome

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AI22

Intervertebral Disc Syndrome

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the Department of Veterans

Affairs (VA) Schedule for Rating Disabilities by revising the

evaluation criteria for diagnostic code 5293, intervertebral disc

syndrome. The intended effect of this amendment is to clarify the

criteria to ensure that veterans diagnosed with this condition meet

uniform criteria and receive consistent evaluations.

DATES: Comments must be received by VA on or before April 25, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office

of Regulations Management (02D), Department of Veterans Affairs, 810

Vermont Ave., NW, Room 1154, Washington DC 20420. Comments should

indicate that they are in response to ``RIN 2900-AI22.'' All written

comments will be available for public inspection at the above address

in the Office of Regulations Management, Room 1158, between the hours

of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays).

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

Ave., NW, Washington, DC 20420, (202) 273-7230.

SUPPLEMENTARY INFORMATION: The central portion of one or more

intervertebral discs, cartilages that separate the spinal vertebrae,

may protrude or rupture through the outer fibrous part of the disc and

compress or irritate the adjacent nerve root. Intervertebral disc

syndrome is a group of signs and symptoms due to nerve root irritation

that commonly includes back pain and sciatica (pain along the course of

the sciatic nerve) in the case of lumbar disc disease, and neck and arm

or hand pain in the case of cervical disc disease. It may also include

scoliosis, paravertebral muscle spasm, limitation of motion of the

spine, tenderness over the spine, limitation of straight leg raising,

and neurologic findings corresponding to the level of the disc. If the

disc compresses the cauda equina (the collection of nerve roots

extending from the lower end of the spinal cord), bowel or bladder

sphincter functions or sexual function may also be affected.

Intervertebral disc syndrome has a variable course and variable

manifestations. Many people have a series of relapses and remissions of

back pain and sciatica over a long period of time with no symptoms

during remission; other patients experience chronic signs and symptoms.

The current evaluation criteria for intervertebral disc syndrome

(DC 5293) include: a 60-percent evaluation for persistent sciatic

neuropathy or other neurologic findings, with little intermittent

relief; a 40-percent evaluation for severe recurring attacks; a 20-

percent evaluation for moderate recurring attacks; a 10-percent

evaluation if the condition is mild; and a zero-percent evaluation if

the condition is postoperative, cured. These criteria require rating

agencies to make a subjective determination as to whether the condition

is ``mild,'' ``moderate,'' or ``severe.'' In addition, they raise

questions as to whether any neurologic manifestation, regardless of

severity, warrants a 60-percent evaluation, or whether intervertebral

disc syndrome with neurologic manifestations may be evaluated higher or

lower than 60 percent.

In order to clarify the evaluation criteria, and thereby assure

more consistent evaluations, we propose to eliminate subjective terms

such as mild, moderate, and severe in favor of more objective criteria,

and to provide specific instructions for evaluating both the orthopedic

and neurologic manifestations of intervertebral disc syndrome. We also

propose that these criteria apply both pre-operatively and post-

operatively.

We propose to evaluate intervertebral disc syndromes that are

primarily disabling because of periods of acute symptoms that require

bed rest according to the cumulative amount of time over the course of

a year that the patient is incapacitated, i.e., requires bed rest and

treatment by a physician. Incapacitating episodes of at least six weeks

total duration per year would be evaluated at 60 percent;

incapacitating episodes of at least four but less than six weeks total

duration per year at 40 percent; incapacitating episodes of at least

two but less than four weeks total duration per year at 20 percent; and

incapacitating episodes of at least one but less than two weeks total

duration per year at 10 percent. Evaluating the condition in this

manner will assure more consistent evaluations when the disc disease is

episodic because percentage evaluations will be assigned based on an

objective standard--yearly cumulative duration of incapacitating

episodes--rather than a subjective assessment of whether the condition

is mild, moderate, or severe.

We propose to evaluate intervertebral disc syndromes that are

disabling primarily because of chronic orthopedic manifestations (e.g.,

painful muscle spasm or limitation of motion), chronic neurologic

manifestations (e.g., footdrop, muscle atrophy, or sensory loss), or a

combination of both, by assigning separate evaluations for the

orthopedic and neurologic manifestations, using DC 5293 hyphenated with

the appropriate orthopedic or neurologic code. Assigning separate

evaluations for the orthopedic and neurologic manifestations will

assure that evaluations accurately reflect the actual disabling effects

of the condition, and that neurologic manifestations in particular will

not be over-or under-evaluated by being considered categorically rather

than individually.

When an intervertebral disc syndrome is disabling both because of

incapacitating episodes and persistent orthopedic or neurologic

manifestations, we propose that the rating agency use whichever

alternative method of evaluation results in a higher evaluation.

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),

[[Page 8205]]

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: November 5, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

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

is proposed to be amended as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

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

Authority: 38 U.S.C. 1155.

2. Section 4.71a is amended by revising diagnostic code 5293 and

adding an authority citation at the end of the section to read as

follows:

Sec. 4.71a Schedule of ratings--musculoskeletal system.

The Spine

* * * * *

5293 Intervertebral disc syndrome:

Evaluate intervertebral disc syndrome (preoperatively or

postoperatively) based on either its chronic manifestations or on the

annual duration of incapacitating episodes, whichever results in a

higher evaluation.

With incapacitating episodes having a total duration of at least

six weeks per year...................................................60

With incapacitating episodes having a total duration of at least

four weeks but less than six weeks per year..........................40

With incapacitating episodes having a total duration of at least

two weeks but less than four weeks per year..........................20

With incapacitating episodes having a total duration of at least

one week but less than two weeks per year............................10

Note (1): An incapacitating episode of intervertebral disc syndrome

means a period of acute symptoms (orthopedic, neurologic, or both),

requiring bed rest and treatment by a physician.

Note (2): When evaluating on the basis of chronic manifestations,

evaluate orthopedic manifestations, such as limitation of motion of

lumbar or cervical spine, paravertebral muscle spasm, or scoliosis of

the spine, under DC 5293, using evaluation criteria for an appropriate

diagnostic code; evaluate neurologic manifestations, such as footdrop,

muscle atrophy, sensory loss, or neurogenic bladder separately under DC

5293, using evaluation criteria for an appropriate diagnostic code.

* * * * *

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

[FR Doc. 97-4415 Filed 2-21-97; 8:45 am]

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