Schedule for Rating Disabilities; Diseases of the Ear and Other Sense Organs

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AF22

Schedule for Rating Disabilities; Diseases of the Ear and Other

Sense Organs

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 ear and other sense organs. The intended effect of this action is

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

current medical terminology and unambiguous criteria, and that it

reflects medical advances that have occurred since the last review.

DATES: Effective Dates: This amendment is effective June 10, 1999.

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

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

Benefits Administration, Department of Veterans Affairs, 810 Vermont

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

SUPPLEMENTARY INFORMATION: As part of its review of the Schedule for

Rating Disabilities, VA published a proposal to amend that portion of

the Schedule pertaining to the ear and other sense organs in the

Federal Register of April 12, 1994 (59 FR 17295-17301). Interested

persons were invited to submit written comments on or before June 13,

1994. We received comments from the Veterans of Foreign Wars, Disabled

American Veterans, and three individuals.

The evaluation of hearing impairment in the previous rating

schedule was based on two criteria: the results of a puretone

audiometry test and the results of a controlled speech discrimination

test. Based on the results of these tests, one of two tables was used

to determine a Roman numeral designation for hearing impairment: Table

VI, where the number is determined by combining the percent of speech

discrimination with the average puretone decibel (dB) loss, and Table

VIa, which is based solely on average puretone dB loss, and was used

only if language difficulties or inconsistent speech audiometric scores

made use of Table VI inappropriate. The Roman numeral designations

determined for each ear using Table VI or VIa were then combined using

Table VII, in order to determine the percentage evaluation for hearing

impairment. We proposed no change in this method of evaluation and

included information about it in Sec. 4.85, ``Evaluation of hearing

impairment'' and Sec. 4.86, ``Auditory acuity, hearing aids, and

evidence other than puretone audiometry and controlled speech.'' In

response to several comments we received about the method of

evaluation, and requesting more specific details, we have reorganized

Secs. 4.85 and 4.86 for the sake of clarity, as explained in detail

below.

One commenter stated that nowhere is VA's authority to use the

specific hearing tests it uses spelled out in the regulations. We agree

that the tests required were not specified in the rating schedule and

have therefore stated in Sec. 4.85(a) that the Maryland CNC speech

discrimination test and the puretone audiometry test are to be used for

evaluating hearing impairment. The use of the Maryland CNC speech

discrimination test and the puretone threshold average determined by an

audiometry test was established by a regulation on the evaluation of

hearing loss published in the Federal Register on November 18, 1987 (52

FR 44117). That regulation changed the method of evaluating hearing

loss based on a VA study on hearing loss testing methods and assistive

hearing devices that had been requested by Congress in 1984. The

results of the study were published in a VA report titled ``Report on

Hearing Loss Study'' that was issued on January 6, 1986. Although the

regulation revised the rating schedule to incorporate rating tables

based on the new method of evaluation, it did not add to the schedule

specific details about the new testing methods.

One commenter stated that if only VA examinations or authorized

audiological clinic examinations are to be used, this should be stated

in the proposed regulation. Based on this comment, we have stated in

Sec. 4.85(a) that an examination for hearing impairment for VA purposes

must be conducted by a state-licensed audiologist. This will help to

assure that examinations of veterans will be accurate and consistent

because state licensing agencies require that audiologists meet

specific educational and training requirements and pass a national

competency examination.

Two commenters noted that the meaning of average puretone decibel

loss is not explained in the rating schedule. We agree that this

information should be included in the rating schedule and have added an

explanation in Sec. 4.85(d). For VA purposes, the average puretone

decibel loss means a four-frequency puretone threshold average obtained

by adding the puretone thresholds at four specified frequencies'1000,

2000, 3000, and 4000 Hertz and dividing by four. This method and the

reasons for its selection were explained in the 1987 regulation

referred to above. Current terminology is ``puretone threshold

average'' rather than ``average puretone decibel loss,'' and we have

used this language in Sec. 4.85 and have revised the labels in Tables

VI and VIa. For clarity, we have also titled Table VIa, untitled in the

proposed rule, ``Numeric Designation of Hearing Impairment Based Only

on Puretone Threshold Average'' and retitled Table VI, titled ``Numeric

Designation of Hearing Impairment'' in the proposed rule, ``Numeric

Designation of Hearing Impairment Based on Puretone Threshold Average

and Speech Discrimination.'' In the proposed rule we inadvertently

placed

[[Page 25203]]

the numeric tables in Sec. 4.86, we have moved them to Sec. 4.85(h) as

the more appropriate location. We removed the examples from Sec. 4.85

because the directions for using the tables are clear enough without

them.

We also proposed to add two new provisions for evaluating veterans

with certain patterns of hearing impairment that cannot always be

accurately assessed under Sec. 4.85, because the speech discrimination

test may not reflect the severity of communicative functioning these

veterans experience. These veterans were identified in review studies

carried out by the Veterans Health Administration's (VHA's) Audiology

and Speech Pathology Service in 1991. One of the new provisions,

proposed as Sec. 4.85(d), stated that if puretone thresholds in any

four of the five frequencies of 500, 1000, 2000, 3000, and 4000 Hertz

are 55 dB's or more, an evaluation could be based either on Table VI or

Table VIa, whichever results in a higher evaluation. (This provision

has been redesignated Sec. 4.86(a), as discussed below.)

One commenter, although offering no rationale for the comment,

suggested that the level of hearing loss for this provision should be

50 dB instead of 55.

To conduct a speech discrimination test in someone with hearing

impairment, the sounds must be amplified sufficiently for the

individual to hear the words. The greater the dB threshold level, the

higher the level of amplification that is needed. Up to a 50 dB

threshold level, amplification sufficient to conduct a speech

discrimination test is feasible. However, with a 55 dB threshold

level--the level at which speech becomes essentially inaudible--the

high level of amplification needed to attempt to conduct a speech

discrimination test would be painful to most people, and speech

discrimination tests may therefore not be possible or reliable. The new

provision will allow evaluation of hearing impairment in such

individuals on the basis of puretone threshold average only, if that

results in a higher evaluation than one based on a combination of

speech discrimination and puretone threshold average.

The same commenter suggested applying proposed Sec. 4.85(d) if

three of the five specified frequencies have a threshold of 55 dB or

more because the frequencies of 2000 and above are the most important

frequencies for speech discrimination, and precipitous hearing

impairment in the high frequencies is extremely handicapping in the

work environment.

The frequencies selected and the dB threshold were chosen because

VHA, through their clinical studies, found that speech discrimination

studies are quite variable in veterans with a 55 dB threshold in four

or more frequencies and may not accurately reflect the true extent of

disability. Also based on the results of their studies, they did not

extend the recommendation for an alternative method of evaluation to

those with that extent of hearing impairment at only three frequencies.

In view of VHA's recommendations, based on tests conducted on 1565

individuals, we make no change based on this comment.

The second provision we proposed to add (as Sec. 4.85(e)) was to

direct the rating agency to choose the Roman numeral designation

derived from either table VI or VIa, whichever is higher, when puretone

thresholds are 30 dB or less at frequencies of 1000 Hertz and below,

and are 70 dB or more at 2000 Hertz. It also directed the rating agency

to elevate that Roman numeral designation one level. This provision was

meant to compensate for a pattern of hearing impairment that is an

extreme handicap in the presence of any environmental noise. VHA found

that when this pattern of impairment is present, a speech

discrimination test conducted in a quiet room with amplification of the

sounds does not always reflect the extent of impairment experienced in

the ordinary environment. This provision allows evaluation of hearing

impairment in these individuals on puretone average only, if that

results in a higher evaluation. (This provision has been redesignated

Sec. 4.86(b), as discussed below.)

One commenter said it appears in proposed Sec. 4.85(d) and (e) that

500 Hertz is one of the frequencies to be used in the puretone average,

although when Sec. 4.85 was revised in 1987, the supplementary

information stated that puretone frequencies at 1000, 2000, 3000, and

4000 Hertz were to be used to determine the puretone threshold average.

The commenter also said that the use of four frequencies in some

circumstances and of five or more in others requires an explanation of

why such a methodology does not give rise to disparate treatment.

In the proposed rule, the four frequency puretone threshold average

was the basis of the evaluation for hearing impairment in all cases,

and the 500 Hertz frequency was to be used only to help select the

veterans to whom the special provisions would be applied. However, in

order to remove any suggestion of disparate treatment, and after

consultation with VHA, we removed the 500 Hertz stipulations from the

two proposed special provisions. VHA assured us that this change would

not affect the need for the special provisions and would not affect the

disability ratings of any group of veterans.

One commenter suggested that the language for evaluation parallel

the language of 38 CFR 3.385.

The purpose of Sec. 3.385, ``Disability due to impaired hearing,''

is to explain the basis for determining whether impaired hearing is a

disability, which is different from the purpose of Sec. 4.85, which is

to explain how to evaluate hearing impairment, once it has been

determined to be a disability, for purposes of disability compensation.

Since these regulations serve different purposes, and different

frequencies are involved, the use of parallel language is neither

necessary nor feasible.

When the puretone threshold average is 105 dB or more, tables VI

and VIa require a numeric designation of XI, the highest level of

evaluation. This is unchanged from the previous schedule. One commenter

stated that a loss of greater than 92 dB, rather than 105 dB, would

result in total impairment in everyone, according to the American

Academy of Otolaryngology and Otolaryngology Guide for the Evaluation

of Hearing Impairment.

Methods of measuring hearing impairment and assessing disability

based on the results vary from one organization to another, making

direct comparisons infeasible. Not all organizations use the same range

of frequencies, for example, to determine a puretone threshold average.

While VA uses 1000, 2000, 3000, and 4000 Hertz for evaluation, based on

the results of the VA study referred to above, the American Medical

Association (AMA), in its ``Guides to the Evaluation of Permanent

Impairment'' 4th ed., 1993, uses 500, 1000, 2000, and 3000 Hertz. The

National Institute for Occupational Safety and Health proposed using

puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, as has the

American Speech and Hearing Association Task Force, and their rationale

is that these frequencies are most sensitive to discrimination ability

in quiet and in noise. Not all organizations use a speech

discrimination test in evaluating hearing impairment; the AMA, for

example, does not. The guide referred to by the commenter is no longer

in existence, but the AMA Guides states that the criteria it uses are

adapted from the 1979 Academy of Otolaryngology-Head and Neck Surgery

Guide. The AMA Guides considers impairment of hearing to be total if

the average of the four puretone

[[Page 25204]]

frequencies they use is over 91.7 dB. However, total impairment of

hearing under their system does not mean that a 100-percent disability

evaluation is assigned. Under the AMA disability evaluation system,

each disability is considered in terms of its effect on the whole

person. The evaluation they would assign for a bilateral puretone

threshold of 91.7 dB (in workers' compensation claims, for example) is

35 percent, not 100 percent. With a unilateral puretone threshold of

91.7 dB (with the other ear normal), the AMA system would evaluate

monaural hearing impairment at 100 percent, and binaural hearing

impairment at approximately 17 percent, but the actual evaluation they

would assign is six percent. Thus, direct comparisons of different

systems of evaluating disability due to hearing loss are not possible,

and we make no change based on this comment.

One commenter pointed out that Sec. 4.86 in the previous schedule

stated that evaluations are intended to make proper allowance for

improvement by hearing aids and that examination to determine the

improvement is not necessary. The commenter further stated that because

Table VI appears to be unchanged in the proposed regulations, it would

appear that Table VI continues to be built on the assumption of

improvement with hearing aids and that performing audiology tests with

hearing aids or adjusting the rating values based on an assumption of

improvement with hearing aids violates the policy of determining

impairment of body function without the use of any prosthetic device.

We are unaware of any general policy which prohibits consideration

of the effect of a prosthetic device in determining the degree of

impairment. In fact, there is a standard method for measuring best

corrected vision, and the rating schedule requires that examinations

for visual impairment include corrected, as well as uncorrected, visual

acuity. However, there is no standard procedure for measuring best

corrected hearing, and the amended instruction (Sec. 4.85(a)) states

that examinations for hearing impairment will be conducted without the

use of hearing aids. Section 4.85(a) is clear enough that, in order to

avoid confusion, we have removed the language in proposed Sec. 4.86(b)

stating that the evaluations are designed to measure the best residual

uncorrected hearing and that examinations comparing hearing with and

without hearing aids are unnecessary. VHA consultants indicated that it

is well accepted in the audiological literature that the better the

speech discrimination score, the better the overall result with hearing

aids, but they also stated that the language in the former rating

schedule about anticipated improvement by a hearing aid did not in any

way affect the method of evaluation or disability ratings themselves,

and that removal of that language would also have no effect on the

method of evaluation or on disability ratings.

The previous Sec. 4.87 and proposed Sec. 4.86(a) defined

``impairment of auditory acuity,'' for VA purposes. However, that term

is not used elsewhere in the rating schedule, although the terms

``hearing impairment,'' ``hearing loss,'' and ``deafness'' are used. We

have therefore removed Sec. 4.86(a) as unnecessary and have, for the

sake of clarity, used ``hearing impairment'' in all other parts of the

rating schedule to designate a loss of hearing except where the

statutory terms ``deafness'' or ``hearing loss'' are required (by 38

U.S.C. 1114(k)).

Former section 4.86a, ``Evidence other than puretone audiometry and

controlled speech,'' explained that where claims contain evidence which

predates the use of puretone audiometry and controlled speech,

determination of service connection will be evaluated under the

regulations in effect on December 17, 1987. We proposed to retain this

instruction in Sec. 4.86(c). One commenter suggested that this is not a

rating regulation and that it properly belongs in Part 3 of 38 CFR.

We agree that regulations regarding service connection are not

appropriate in the rating schedule, which is used for the evaluation of

disabilities, and we have removed Sec. 4.86(c). This completes the

removal of the contents of proposed Sec. 4.86. We have, however,

retained Sec. 4.86, retitled it ``Exceptional patterns of hearing

impairment,'' and added paragraphs (a) and (b) for the two provisions

that were proposed as Sec. 4.85(d) and (e). This change better

highlights the unusual aspects of evaluating these uncommon patterns of

hearing impairment.

The previous schedule did not provide specific instructions on

evaluating bilateral hearing impairment when hearing impairment is

service-connected in only one ear. One commenter suggested that we add

a note indicating that a non-service-connected ear is to be treated as

having normal hearing.

We concur and have added Sec. 4.85(f) to specify that a non-

service-connected ear will be assigned a Roman numeral designation of

I, subject to the provisions of Sec. 3.383, ``Special consideration for

paired organs and extremities.'' This is consistent with the manner in

which we evaluate other paired organs, where only one of the pair is

service-connected (38 CFR 4.73 (muscle injuries) and 38 CFR 4.124a

(diseases of the cranial and peripheral nerves)).

One commenter stated that the regulation should include a specific

effective date and should state whether the regulatory change

constitutes a liberalizing law or issue.

The effective date of the regulation will be 30 days after

publication of this final rule in the Federal Register. The revisions

of the sections addressing ear and other sense organs are part of the

overall revision of the rating schedule based on medical advances,

etc., rather than representing liberalizing interpretations of

regulations. We have explained above the reasons for the provisions of

Sec. 4.86. The preamble erred in discussing these provisions as

liberalizations. Rather, they are an attempt to assure more equitable

evaluations in a small number of veterans with unusual patterns of

hearing impairment.

Special monthly compensation (SMC) is a benefit authorized by 38

U.S.C. 1114 that is payable in addition to the compensation payable for

specific disabilities, or combinations of disabilities, based upon the

extent of impairment under the Schedule for Rating Disabilities. We

proposed removing the footnote regarding SMC in Table VII in favor of a

single note at the end of Sec. 4.85 directing the rating agency to

refer to Sec. 3.350 (``Special monthly compensation ratings'') to

determine whether a claimant is entitled to SMC. One commenter

suggested that we retain this footnote.

In response to the comment, and for the sake of consistency with

references to SMC that we have made in other revised sections of the

rating schedule, we have added this information as Sec. 4.85(g) and

also restored a footnote to Table VII, Percentage Evaluations for

Hearing Impairment, indicating that the rating agency is to review for

entitlement to special monthly compensation under Sec. 3.350. (We

proposed to put the information now in Sec. 4.85(g) in a footnote

following Sec. 4.86, but moved it to Sec. 4.85 instead to remove

ambiguity about whether it referred only to the provisions of Sec. 4.86

or to all hearing evaluations.) A single footnote to Table VII is

adequate because we have deleted all but one diagnostic code (DC),

6100, for hearing impairment, since it is unnecessary for any practical

purpose to have multiple diagnostic codes to indicate various

evaluation

[[Page 25205]]

levels of the same disability. SMC may be warranted not only when

hearing impairment is evaluated at 100 percent, but also for various

levels of deafness (or hearing impairment) when they occur in

combination with blindness, and the single footnote will assure that

SMC is always considered when there is hearing impairment. We believe

that the combination of the footnote and Sec. 4.85(g) is the most

effective method for ensuring complete review for special monthly

compensation.

38 U.S.C. 1114(k) authorizes payment of SMC if there is absence of

air and bone conduction in both ears. The implementing regulation, 38

CFR 3.350(a)(5), states that deafness of both ears, having absence of

air and bone conduction, will be held to exist when bilateral hearing

loss is equal to or greater than the minimum bilateral hearing loss

required for a maximum rating (100 percent) under the schedule. One

commenter suggested that we add a footnote to the 80- and 90-percent

levels indicating entitlement to special monthly compensation, because

these evaluations constitute deafness, for all practical purposes.

We do not concur. Complete loss of air and bone conduction would

result in no response on audiometry, even at 105 dB, according to VHA

consultants, and would therefore warrant a 100-percent evaluation. If

there is a response on audiometry, which would necessarily be the case

to establish an 80- or 90-percent evaluation for hearing impairment,

there is not complete absence of air and bone conduction, and the

hearing impairment in those cases would not meet the requirements of 38

U.S.C. 1114(k). Such a footnote would therefore be contrary to

statutory requirements.

The previous schedule listed mastoiditis under its own diagnostic

code (6206), with evaluation based on suppuration and impairment of

hearing. We proposed to combine it with suppurative otitis media under

DC 6200. The previous schedule provided neither diagnostic code nor

evaluation criteria for cholesteatoma; raters have generally evaluated

it analogous to otitis media. We also proposed to include cholesteatoma

under DC 6200, because the three conditions are closely related, and

their manifestations may be essentially the same. One commenter

suggested that we assign separate diagnostic codes for cholesteatoma

and mastoiditis because the proposed rule is ambiguous as to whether

one of these conditions must accompany otitis media to assign a 10-

percent evaluation and because mastoiditis and cholesteatoma can exist

without forming pus (suppuration).

Chronic otitis media, mastoiditis, and cholesteatoma may exist with

or without suppuration. However, two or more of these conditions, all

of which are interrelated, commonly coexist, and their manifestations

may be very similar. For example, chronic mastoiditis may develop

simultaneously with otitis media or may occur as a later complication.

Therefore, a single diagnostic code and set of evaluation criteria for

all three conditions is appropriate, and we have revised the title of

DC 6200 to clarify that it can apply to any of these conditions. We

have also added aural polyps to the criteria for a 10-percent

evaluation because they are a possible consequence of chronic otitis

media. We have also expanded the note directing that hearing impairment

be evaluated separately to include a list of other possible

complications--labyrinthitis, tinnitus, facial nerve paralysis, and

bone loss of skull--that would also warrant separate evaluations. These

criteria better encompass the usual range of impairments that may

develop in this group of conditions. Placing these related conditions

under a single diagnostic code will help assure that the same

impairment is not evaluated twice when more than one of these

conditions is present in an individual.

The previous schedule addressed otitis interna under DC 6203 and

evaluated it based on the extent of hearing loss. We proposed to

eliminate this diagnostic code because otitis interna is an archaic

name for a general ear infection condition which is more accurately

classified as a peripheral vestibular disorder, DC 6204. One commenter

suggested that we provide instructions under peripheral vestibular

disorders explaining how to evaluate otitis interna. We do not concur.

Otitis interna is an obsolete term, and conditions which it formerly

encompassed are best evaluated under the criteria for peripheral

vestibular disorders.

The previous rating schedule provided three evaluation levels for

Meniere's syndrome, DC 6205, based on the severity and frequency of

attacks. Among other things, we proposed to provide objective measures

for the frequency of the attacks. One commenter stated that the

prodromal signs, the duration of the episode, and the recovery period

for an attack may last as long as ten days, and therefore suggested

that the frequency of attacks proposed for the 100-percent evaluation

(more than once weekly) and 60-percent evaluation (once a week or less)

was too stringent. The commenter also said that ``attacks occurring

once a week or less'' should be better defined.

Attacks of vertigo in Meniere's syndrome appear suddenly and last

from a few to 24 hours (Boies Fundamentals of Otolaryngology, Sixth

Edition, W.B. Saunders Company, 1989, p.139, and The Merck Manual of

Diagnosis and Therapy, Merck Research Laboratories, 1992, p. 2336).

Since the attacks of vertigo (often accompanied by nausea, vomiting,

hearing impairment, and tinnitus) generally subside within 24 hours,

requiring attacks more than once weekly for a 100-percent level, and

one to four times a month for a 60-percent level, are reasonable

requirements, in our judgment, that are equivalent to, but more

objective than, the requirements of ``frequent and typical,'' and

``less frequent'' in the previous schedule. In response to the comment,

however, we better defined the criteria by changing the requirements

for a 60-percent evaluation from ``deafness with attacks of vertigo and

cerebellar gait occurring once a week or less'' to ``hearing impairment

with attacks of vertigo and cerebellar gait occurring from one to four

times a month, with or without tinnitus,'' and by changing the

requirements for a 30-percent evaluation from ``deafness with

occasional vertigo'' to ``hearing impairment with vertigo less than

once a month, with or without tinnitus.'' Tinnitus is commonly, but not

universally, present in Meniere's syndrome. We included the phrase

``with or without tinnitus'' in these criteria to emphasize that the

overall evaluation of Meniere's syndrome is the same whether or not

tinnitus is present. This will avoid the assignment of a separate

evaluation for tinnitus when evaluating the syndrome under DC 6205, and

at the same time, indicate that the absence of tinnitus in certain

cases has no effect on the evaluation to be assigned under DC 6205.

We proposed to retain ``deafness'' as one of the criteria at the

100-percent evaluation level of Meniere's syndrome (DC 6205). One

commenter suggested that there be a footnote appended to the 100-

percent level, signaling that entitlement to Special Monthly

Compensation is payable.

We do not concur. A particular level of impaired hearing is not a

requirement for the 100-percent level for Meniere's syndrome. The term

``deafness'' was meant to indicate any level of hearing impairment, and

we have changed ``deafness'' to ``hearing impairment'' in the criteria

for Meniere's syndrome to make that clear. The requirements for a 100-

percent evaluation of Meniere's syndrome are met if there is any level

[[Page 25206]]

of hearing impairment, and vertigo and cerebellar gait occur more than

once weekly. 38 CFR 3.350(a)(5), on the other hand, requires an absence

of air and bone conduction and hearing loss equal to or greater than

the minimum bilateral hearing loss required for a 100-percent rating,

for entitlement to SMC on the basis of hearing impairment. For this

reason, a footnote referring to entitlement to SMC is not appropriate

here, and Sec. 4.85(g) and the footnote to Table VII will assure

consideration of SMC in any case of hearing impairment.

Another commenter suggested that we add a note under Meniere's

syndrome instructing the rating agency that hearing impairment will be

rated separately and combined. We did not adopt this suggestion because

the evaluation criteria and percentages are based on all of the

manifestations of Meniere's syndrome, with attacks often consisting of

hearing impairment, vertigo, tinnitus, and staggering gait. Any of the

symptoms may be intermittent. It would be contrary to 38 CFR 4.14

(Avoidance of pyramiding), which prohibits the evaluation of the same

manifestation under different diagnoses, to evaluate hearing impairment

separately, and also use it to support an evaluation under DC 6205.

However, we have added a note stating that Meniere's syndrome may be

evaluated either under DC 6205 or by separately evaluating vertigo (as

a peripheral vestibular disorder), hearing impairment, and tinnitus,

whichever method results in a higher overall evaluation. The note also

prohibits combining an evaluation for hearing impairment, tinnitus, or

vertigo with an evaluation under DC 6205.

The previous schedule provided a minimum 10-percent evaluation for

malignant neoplasms of the ear, DC 6208. We proposed to delete the

minimum evaluation. One commenter suggested that we reinstate the

minimum 10-percent evaluation because it was meant to compensate for

skull loss.

In our judgment, loss of function is the most accurate and

equitable basis for evaluating the residuals of this condition. If a

malignant neoplasm results in skull loss, the skull loss would be

separately evaluated under the skeletal system (DC 5296).

The previous rating schedule provided a 10-percent evaluation for

tinnitus, DC 6260, with the criteria being: ``persistent as a symptom

of head injury, concussion or acoustic trauma.'' We proposed to remove

the requirement that tinnitus be a symptom of head injury, concussion

or acoustic trauma and that it be persistent and instead provide a 10-

percent evaluation for recurrent tinnitus. One commenter suggested that

we add a note following tinnitus instructing that the evaluation for

tinnitus be combined with ratings for hearing impairment, suppurative

otitis media, and peripheral vestibular disorder.

We agree and have added a note under DC 6260 stating that a

separate evaluation for tinnitus under DC 6260 may be combined with an

evaluation under DC's 6100, 6200, 6204, or other diagnostic code except

when tinnitus supports an evaluation under one of those diagnostic

codes.

We added the word ``nonsuppurative'' to the proposed title of DC

6201, ``chronic nonsuppurative otitis media with effusion (serous

otitis media),'' to better distinguish it from DC 6200, ``chronic

suppurative otitis media, mastoiditis, or cholesteatoma.'' We also made

additional nonsubstantive changes throughout this final rule for the

sake of clarity and succinctness.

The Secretary hereby certifies that this regulatory amendment will

not have a significant economic impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act, 5

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

amendment would not directly affect any small entities. Only VA

beneficiaries could be directly affected. Therefore, pursuant to 5

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

regulatory flexibility analysis requirements of sections 603 and 604.

This regulatory action has been reviewed by the Office of

Management and Budget under Executive Order 12866.

The Catalog of Federal Domestic Assistance numbers are 64.104 and

64.109.

List of Subjects in 38 CFR Part 4

Disability benefits, Individuals with disabilities, Pensions,

Veterans.

Approved: January 8, 1999.

Togo D. West, Jr.,

Secretary of Veterans Affairs.

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

as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

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

Authority: 38 U.S.C. 1155.

Subpart B--Disability Ratings

2. Section 4.85 is revised to read as follows:

Sec. 4.85 Evaluation of hearing impairment.

(a) An examination for hearing impairment for VA purposes must be

conducted by a state-licensed audiologist and must include a controlled

speech discrimination test (Maryland CNC) and a puretone audiometry

test. Examinations will be conducted without the use of hearing aids.

(b) Table VI, ``Numeric Designation of Hearing Impairment Based on

Puretone Threshold Average and Speech Discrimination,'' is used to

determine a Roman numeral designation (I through XI) for hearing

impairment based on a combination of the percent of speech

discrimination (horizontal rows) and the puretone threshold average

(vertical columns). The Roman numeral designation is located at the

point where the percentage of speech discrimination and puretone

threshold average intersect.

(c) Table VIa, ``Numeric Designation of Hearing Impairment Based

Only on Puretone Threshold Average,'' is used to determine a Roman

numeral designation (I through XI) for hearing impairment based only on

the puretone threshold average. Table VIa will be used when the

examiner certifies that use of the speech discrimination test is not

appropriate because of language difficulties, inconsistent speech

discrimination scores, etc., or when indicated under the provisions of

Sec. 4.86.

(d) ``Puretone threshold average,'' as used in Tables VI and VIa,

is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000

Hertz, divided by four. This average is used in all cases (including

those in Sec. 4.86) to determine the Roman numeral designation for

hearing impairment from Table VI or VIa.

(e) Table VII, ``Percentage Evaluations for Hearing Impairment,''

is used to determine the percentage evaluation by combining the Roman

numeral designations for hearing impairment of each ear. The horizontal

rows represent the ear having the better hearing and the vertical

columns the ear having the poorer hearing. The percentage evaluation is

located at the point where the row and column intersect.

(f) If impaired hearing is service-connected in only one ear, in

order to determine the percentage evaluation from Table VII, the non-

service-connected ear will be assigned a Roman Numeral designation for

hearing

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impairment of I, subject to the provisions of Sec. 3.383 of this

chapter.

(g) When evaluating any claim for impaired hearing, refer to

Sec. 3.350 of this chapter to determine whether the veteran may be

entitled to special monthly compensation due either to deafness, or to

deafness in combination with other specified disabilities.

(h) Numeric tables VI, VIA*, and VII.

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3. Section 4.86 is revised to read as follows:

Sec. 4.86 Exceptional patterns of hearing impairment.

(a) When the puretone threshold at each of the four specified

frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more,

the rating specialist will determine the Roman numeral designation for

hearing impairment from either Table VI or Table VIa, whichever results

in the higher numeral. Each ear will be evaluated separately.

(b) When the puretone threshold is 30 decibels or less at 1000

Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist

will determine the Roman numeral designation for hearing impairment

from either Table VI or Table VIa, whichever results in the higher

numeral. That numeral will then be elevated to the next higher Roman

numeral. Each ear will be evaluated separately.

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

Sec. 4.86a [Removed]

4. Section 4.86a is removed.

5. Section 4.87 is revised to read as follows:

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Sec. 4.87 Schedule of ratings--ear.

Rating

DISEASES OF THE EAR

6200 Chronic suppurative otitis media, mastoiditis, or

cholesteatoma (or any combination):

During suppuration, or with aural polyps................... 10

Note: Evaluate hearing impairment, and complications such as

labyrinthitis, tinnitus, facial nerve paralysis, or bone loss

of skull, separately.

6201 Chronic nonsuppurative otitis media with effusion (serous

otitis media):

Rate hearing impairment

6202 Otosclerosis:

Rate hearing impairment

6204 Peripheral vestibular disorders:

Dizziness and occasional staggering........................ 30

Occasional dizziness....................................... 10

Note: Objective findings supporting the diagnosis of vestibular

disequilibrium are required before a compensable evaluation can

be assigned under this code. Hearing impairment or suppuration

shall be separately rated and combined.

6205 Meniere's syndrome (endolymphatic hydrops):

Hearing impairment with attacks of vertigo and cerebellar 100

gait occurring more than once weekly, with or without

tinnitus..................................................

Hearing impairment with attacks of vertigo and cerebellar 60

gait occurring from one to four times a month, with or

without tinnitus..........................................

Hearing impairment with vertigo less than once a month, 30

with or without tinnitus..................................

Note: Evaluate Meniere's syndrome either under these criteria

or by separately evaluating vertigo (as a peripheral vestibular

disorder), hearing impairment, and tinnitus, whichever method

results in a higher overall evaluation. But do not combine an

evaluation for hearing impairment, tinnitus, or vertigo with an

evaluation under diagnostic code 6205.

6207 Loss of auricle:

Complete loss of both...................................... 50

Complete loss of one....................................... 30

Deformity of one, with loss of one-third or more of the 10

substance.................................................

6208 Malignant neoplasm of the ear (other than skin only)..... 100

Note: A rating of 100 percent shall continue beyond the

cessation of any surgical, radiation treatment, 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 on 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.

6209 Benign neoplasms of the ear (other than skin only):

Rate on impairment of function.

6210 Chronic otitis externa:

Swelling, dry and scaly or serous discharge, and itching 10

requiring frequent and prolonged treatment................

6211 Tympanic membrane, perforation of........................ 0

6260 Tinnitus, recurrent...................................... 10

Note: A separate evaluation for tinnitus may be combined with

an evaluation under diagnostic codes 6100, 6200, 6204, or other

diagnostic code, except when tinnitus supports an evaluation

under one of those diagnostic codes.

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

6. Section 4.87a is revised to read as follows:

Sec. 4.87a Schedule of ratings--other sense organs.

Rating

6275 Sense of smell, complete loss............................ 10

6276 Sense of taste, complete loss............................ 10

Note: Evaluation will be assigned under diagnostic codes 6275

or 6276 only if there is an anatomical or pathological basis

for the condition.

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

Sec. 4.87b [Removed]

7. Section 4.87b is removed.

[FR Doc. 99-11768 Filed 5-10-99; 8:45 am]

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