[Federal Register Volume 60, Number 184 (Friday, September 22, 1995)]
[Rules and Regulations]
[Pages 49225-49228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23515]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AF02


Schedule for Rating Disabilities; Hemic and Lymphatic Systems

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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

SUMMARY: This document amends the Department of Veterans Affairs' (VA) 
Schedule for Rating Disabilities of the Hemic and Lymphatic Systems. 
The effect of this action is to update the hemic and lymphatic 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: This amendment is effective October 23, 1995.

FOR FURTHER INFORMATION CONTACT:
Don England, Chief, Regulations Staff, Compensation and Pension 
Service, Veterans Benefits Administration, Department of Veterans 
Affairs, 1800 G Street, Washington, DC, 20420, (202) 273-7210.

SUPPLEMENTARY INFORMATION: In the Federal Register of April 30, 1993, 
(58 FR 26080-83) VA published a proposal to amend the Schedule for 
Rating Disabilities of the hemic and lymphatic systems. Interested 
persons were invited to submit written comments, suggestions or 
objections on or before June 1, 1993. We received comments from the 
Veterans of Foreign Wars, the Disabled American Veterans, the Paralyzed 
Veterans of America and one comment from a concerned individual.
    We proposed to reduce the evaluation for splenectomy, diagnostic 
code 7706, from 30 percent to 10 percent. Several commenters felt, for 
various reasons, that the evaluation for splenectomy should be more 
than 10 percent.
    One commenter agreed that antibiotics may compensate for any 
increased susceptibility to infection, but was not persuaded that 
medical treatment is so effective that disabling consequences of 
splenectomy are nearly eliminated. He maintained that asplenic patients 
require vigilant medical intervention to ward off infections. Another 
commenter suggested that after splenectomy, patients must carefully 
avoid activities that may result in trauma and avoid exposure to 
infection, and that these environmental restrictions substantially 
limit the range of vocational possibilities, resulting in industrial 
impairment greater than the 10 percent proposed for this disability. A 
third commenter stated that since he has undergone a splenectomy, 
employers have turned him down due to high risk and that his life 
insurance is more expensive.
    On reconsideration, we have determined that an evaluation of 20 
percent is warranted instead of 10 percent because of the many 
functions that the spleen performs in the areas of immune response, 
filtration of the blood, iron reutilization, blood volume regulation 
and others, and that splenectomy increases susceptibility to certain 
infections, such as those caused by encapsulated pneumococcus bacteria. 
This increased susceptibility requires that splenectomy patients 
restrict their activities, resulting in moderate industrial impairment, 
which we feel is consistent with the 20 percent level of disability. 
This level of disability is assigned throughout the rating schedule for 
``moderate'' disability, for example, under the diagnostic codes for 
liver abscess (7313), pellagra (6315), resection of large intestine 
(7329) and erythromelalgia (7119).
    One commenter stated that asplenia should be included in the 
evaluation criteria for sickle cell anemia. We do not agree. If removal 
of the spleen is necessary in the treatment of sickle cell anemia, the 
splenectomy will be evaluated separately under diagnostic code 7706, 
and combined.
    One commenter assumed that complications of splenectomy such as 
anemia would be rated on the symptomatology demonstrated. He is correct 
and, for the sake of clarity, we have added a note instructing the 
rater to separately evaluate complications if they become manifest to a 
compensable degree.
    One commenter felt that the 30 percent evaluation for splenectomy 
should be ``grandfathered'', and in fact it is. In section 103(a) of 
the Veterans' Benefits Programs Improvement Act of 1991 (Pub. L. 102-
86) Congress modified 38 U.S.C. 1155 to provide that a readjustment to 
the rating schedule will not result in a reduction of any disability 
evaluation in effect on the date of the readjustment unless that 
disability has actually improved. Given the permanent nature of a 
splenectomy, a 30 percent evaluation assigned under the prior rating 
schedule will be protected. The effect of this change is, therefore, 
prospective only.
    One commenter felt that VA should contact all veterans who would be 
affected by the change in the evaluation of splenectomy, rather than 
requiring them to read the Federal Register.
    Publication in the Federal Register is the legal means for any 
federal agency to notify the public of changes to regulations. 
Furthermore, since this change is prospective, taking the additional 
step of contacting asplenic veterans who are currently receiving 
benefits would serve no purpose since they will not be affected by this 
change in the regulation.
    One commenter believed that there should be a note following the 
evaluation formula for anemia, diagnostic code 7700, instructing the 
rater to evaluate chronic residuals of the disease separately.
    We agree and have added a note following the rating criteria for 
diagnostic code 7700, anemias, to instruct the rater to evaluate the 
complications of pernicious anemia, such as dementia or peripheral 
neuropathy, separately. These complications occur often enough that 
this instruction is warranted to ensure consistent evaluations. 
Furthermore, the note is consistent with instructions for other 
conditions throughout the schedule, such as lupus erythematosus, 
(diagnostic code 6350), leprosy (Hansen's Disease), (6302), and 
rheumatoid arthritis, (5002), which instruct the rater to evaluate 
residuals separately.
    The proposed levels of evaluations for anemia, diagnostic code 
7700, were based solely on hemoglobin levels. One commenter noted that 
the key determination in evaluating the degree of disability is not the 
laboratory value, but the primary diagnosis and compensatory level of 
the cardiovascular system. He felt, therefore, that the purely 
objective criteria of hemoglobin levels are inadequate for rating 
anemia unless clinical findings are also considered.
    The normal level of hemoglobin differs by sex, with men having a 
higher level, on the average, than women. Individuals also vary in the 
possible compensatory mechanisms, such as tachycardia, brought to bear 
when anemia develops. Along with the level of hemoglobin, the speed of 
onset of the anemia helps determine the symptoms. We agree, therefore, 
that levels of hemoglobin in combination with clinical findings will 
allow a better 

[[Page 49226]]
assessment of disability than either alone. We have revised the 
criteria to include clinical findings such as a weakness, easy 
fatigability, headaches, lightheadedness, or shortness of breath on 
mild exertion. We have also added a 10 percent evaluation because there 
are patients with a hemoglobin level of 10gm/100ml or less who also 
have symptoms such as weakness, easy fatigability or headaches. Those 
with a hemoglobin level of 10gm/100ml or less who are asymptomatic will 
be assigned a zero percent evaluation. This provide a clear separation 
between the requirements for the 10% and 0% levels since they require 
the same hemoglobin levels.
    The proposed evaluation formulas for agranulocytosis, diagnostic 
code 7702, and aplastic anemia, diagnostic code 7716, provided for 100, 
50 and zero percent evaluations. One commenter suggested that there 
should be a 60 percent evaluation level.
    We have reviewed the proposed evaluation criteria for 
agranulocytosis (diagnostic code 7702) and apastic anemia (diagnostic 
code 7716) and agree that a wider range of evaluation levels is 
warranted because of the range of possible manifestations of the 
conditions. We have, therefore, redesignated the evaluations proposed 
as 50 percent disabling for both of these disabilities as 60 percent 
disabling, and added 30 percent and 10 percent evaluation levels. The 
30 percent levels are based on the number of transfusions required or 
infections that occur, and the 10 percent levels are based on the need 
for continuous medication for control. We have removed the 0 percent 
evaluation level because a noncompensable evaluation can always be 
assigned under Sec. 4.31 of this section whenever the residuals 
required for a compensable evaluation are not shown. Retaining the 0 
percent evaluation level would be redundant. These changes provide a 
realistic range of evaluations and clear guidelines for assigning those 
evaluations.
    The proposed regulation provided an indefinite total evaluation for 
aplastic anemia, diagnostic code 7716, following bone marrow 
transplant, with mandatory VA examination six months following hospital 
discharge, with any change based on that examination subject to the 
provisions of Sec. 3.105(e). This is consistent with other diseases of 
this type, such as malignancies, leukemia and anemia.
    One commenter stated that the post-hospital stabilization period 
for aplastic anemia, diagnostic code 7716, should be one year, not six 
months. We do not concur. A person who has required hospitalization for 
aplastic anemia would not be discharged unless stable, and it is 
reasonable to examine the patient six months thereafter to verify that 
the condition has indeed stabilized. The purpose of the VA examination 
six months after hospital discharge is to gather medical information 
regarding the actual level of disability. Therefore, there would be no 
possibility of an immediate reduction. Should the examination 
demonstrate that the condition remains totally disabling, the 
evaluation will not be changed.
    The proposed evaluation formula for leukemia, diagnostic code 7703, 
includes instructions to otherwise rate as anemia (code 7700) or 
aplastic anemia (code 7716), whichever would result in the greater 
benefit, and a note instructing the rater to continue the 100 percent 
evaluation indefinitely following the cessation of surgical, X-ray, 
antineoplastic chemotherapy or other therapeutic procedures, with a 
mandatory BA examination six months following hospital discharge.
    One commenter stated that evaluations less than 100 percent for 
leukemia should not be based on diagnostic codes 7700 or 7716.
    We do not agree. Using the evaluation criteria from other codes is 
common in the rating schedule and this is consistent with that 
practice. The symptoms and treatments in the criteria for anemia and 
aplastic anemia are the same as those for leukemia and the percentage 
levels reflect the amount of disability.
    One commenter pointed out an inconsistency between the proposed 
criteria for a 100 percent evaluation and the NOTE: the NOTE 
establishes the length of time that a 100 percent evaluation will 
continue after surgery or the termination of radiation, chemotherapy or 
other therapeutic procedure, whereas the criteria for a 100 percent 
evaluation require ``intensive treatment'' such as periodic irradiation 
or transfusion. The language in the evaluation criteria was retained 
from the 1945 rating schedule. Since ``intensive treatment'' might be 
construed as being more restrictive than the language of the NOTE--an 
effect we did not intend--we have revised that language to indicate 
that a 100 percent evaluation will be assigned while the disease is 
active or during a treatment phase. That language not only eliminates 
the perceived disparity between the evaluation criteria and the Note 
under diagnostic code 7703, it is also consistent with the language in 
the evaluation criteria for Hodgkin's disease (diagnostic code 7709) 
and non-Hodgkin's lymphoma (7715).
    We have reworded the NOTE following code 7703, leukemia, for 
clarity. No substantive change is intended.
    One commenter stated that polycythemia vera, code 7704, warrants a 
higher evaluation than 40 percent if myelosuppressive therapy is 
necessary.
    Polycythemia vera is a readily managed disorder in most patients 
that can remain asymptomatic for long periods. Although inadequate 
management of the red cell mass can result in both thrombotic and 
hemorrhagic complications, control of blood volume and viscosity with 
the use of phlebotomy, supplemented when indicated with the use of 
myelosuppression, can ensure most patients with polycythemia vera a 
prolonged period of relatively symptom-free survival. (Cecil, Textbook 
of Medicine, 19th edition, 1992, pages 925-29.) On the other hand, 
certain myelosuppressants, such as P32 and chlorambucil, can have 
severe side effects and possibly lead to the development of leukemia in 
polycythemia patients. On the basis of this comment, we have revised 
the evaluation criteria for polycythemia by adding a 100 percent 
evaluation during periods of myelosuppressive therapy and for three 
months after completion of the therapy. Further, we have revised the 
proposed criteria for the 40 percent evaluation, which will now be 
assigned when the condition is controlled by phlebotomy, and added a 10 
percent evaluation. As a result, a total evaluation will be assigned 
when the disease is active and the patient is being treated with 
myelosuppressants, a 40 percent evaluation will be assigned when the 
disease is controlled with phlebotomy, and a 10 percent evaluation will 
be assigned when the condition is stabilized with or without 
medication. We have removed the 0 percent level since a noncompensable 
evaluation can be assigned under Sec. 4.31 of this section at any time 
when required residuals are not shown. Retaining the 0 percent 
evaluation level would be redundant. In our judgment, these changes 
will provide evaluations which accurately reflect the levels of this 
disability.
    The same commenter suggested that the frequency of phlebotomies 
should be evaluated the same as the frequency of blood transfusions for 
aplastic anemia (diagnostic code 7716).
    Phlebotomy, the removal of blood, is a different procedure than 
transfusion, the injection of blood. Different risks are involved and 
the amount of time before symptoms are resolved is dramatically 
different. Phlebotomy provides rapid 

[[Page 49227]]
remission of symptoms. Transfusions, on the other hand, may have to be 
repeated several times before the desired results are attained, and 
even then it may be days or weeks before symptoms completely disappear. 
For these reasons, we do not believe that phlebotomy warrants an 
evaluation equivalent to that assigned based on transfusions.
    One commenter noted that hypertension and gout are common 
complications of polycythemia vera and suggested that in the note 
following the evaluation formula they be mentioned along with stroke 
and thrombotic disease as complications to be rated separately.
    We agree and have included these additional conditions in the note 
following diagnostic code 7704, polycythemia vera.
    One commenter, noting that the criteria for non-total ratings for 
thrombocytopenia under diagnostic code 7705 specify that there be no 
bleeding, suggested that the 100 percent evaluation be assigned during 
periods of active bleeding.
    We agree and have revised the criteria for the 100 percent 
evaluation to require that there be active bleeding. When a patient 
with thrombocytopenia is actively bleeding, he or she would be under 
close medical supervision, unable to work and totally disabled. 
Requiring that there be active bleeding for the 100 percent evaluation 
level clearly separates the total evaluation from lower evaluations, 
which specifically require no bleeding.
    One commenter suggested that there should be a total rating 
assigned for thrombocytopenia during an appropriate stabilization and 
observation period, with an examination to follow.
    We do not concur. The periods of thrombocytopenic bleeding are 
relatively short, but require aggressive medical management. If the 
veteran requires prolonged hospitalization (over 21 days), a total 
evaluation would be assigned under the provisions of Sec. 4.29. If 
medically indicated, a period of convalescence would be assigned under 
the provisions of Sec. 4.30. Since an exacerbation of this severity is 
closely followed by a medical professional, records of observation and 
treatment which are normally available are adequate to evaluate any 
progression of the disease. If they are not, an examination would be 
requested.
    One commenter stated that the convalescence periods for Hodgkin's 
disease, diagnostic code 7709, and non-Hodgkin's lymphoma, diagnostic 
code 7715, should not be reduced to six months.
    The commenter appears to have misinterpreted the proposed rule to 
mean that a convalescent evaluation will be terminated six months after 
treatment has ceased. However, under the proposed change there cannot 
be a reduction at six months because the process of re-evaluation does 
not begin until that time. First, there must be a VA examination six 
months after completion of treatment. Then, if the results of that or 
any subsequent examination warrant a reduction in evaluation, the 
reduction will be implemented under the provisions of 38 CFR 3.105(e), 
which requires 60 days notice before VA reduces an evaluation and an 
additional 60 days notice before the reduced evaluation takes effect. 
The revision not only provides for a current examination to assure that 
all residuals are noted, but also offers the veteran more 
contemporaneous notice of any proposed action and expands the veteran's 
opportunity to present evidence shown that the proposed action should 
not be taken. In our judgment this method will better ensure that 
actual side-effects and recuperation times are taken into account 
because they will be noted on the required VA exam.
    One commenter stated that the provisions for an examination six 
months after cessation of treatment as in Hodgkin's and non-Hodgkin's 
lymphoma should be applied under malignant neoplasms of the 
genitourinary system (code 7528) and the gynecological system (code 
7627). The revisions of these systems have been made since this comment 
was received and the rating procedure of evaluating malignancies of 
these systems based on an examination six months following cessation of 
treatment was implemented.
    We have made a number of editorial changes, primarily of syntax and 
punctuation, throughout the final rule. These changes are intended to 
clarify the rating criteria and represent no substantive amendment.
    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. 601(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.

List of Subjects in 38 CFR Part 4

    Persons with Disabilities, Pensions, Veterans.

    Approved: June 13, 1995.
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 is revised to read as follows:

    Authority: 38 U.S.C. 1155.

Subpart B--Disability Ratings

    2. Section 4.117 is revised to read as follows:


Sec. 4.117  Schedule of ratings--hemic and lymphatic systems.

                                                                        
                                                                 Rating 
                                                                        
7700  Anemia, hypochromic-microcytic and megaloblastic, such            
 as iron-deficiency and pernicious anemia:                              
    Hemoglobin 5gm/100ml or less, with findings such as high            
     output congestive heart failure or dyspnea at rest.......       100
    Hemoglobin 7gm/100ml or less, with findings such as                 
     dyspnea on mild exertion, cardiomegaly, tachycardia (100           
     to 120 beats per minute) or syncope (three episodes in             
     the last six months).....................................        70
    Hemoglobin 8gm/100ml or less, with findings such as                 
     weakness, easy fatigability, headaches, lightheadedness,           
     or shortness of breath...................................        30
    Hemoglobin 10gm/100ml or less with findings such as                 
     weakness, easy fatigability or headaches.................        10
    Hemoglobin 10gm/100ml or less, asymptomatic...............         0
                                                                        

[[Page 49228]]
                                                                        
Note: Evaluate complications of pernicious anemia, such as dementia or  
 peripheral neuropathy, separately.                                     
                                                                        
7702  Agranulocytosis, acute:                                           
    Requiring bone marrow transplant, or; requiring                     
     transfusion of platelets or red cells at least once every          
     six weeks, or; infections recurring at least once every            
     six weeks................................................       100
    Requiring transfusion of platelets or red cells at least            
     once every three months, or; infections recurring at               
     least once every three months............................        60
    Requiring transfusion of platelets or red cells at least            
     once per year but less than once every three months, or;           
     infections recurring at least once per year but less than          
     once every three months..................................        30
    Requiring continuous medication for control...............        10
                                                                        
Note: The 100 percent rating for bone marrow transplant shall be        
 assigned as of the date of hospital admission and shall continue with a
 mandatory VA examination six months following hospital discharge. Any  
 change in evaluation based upon that or any subsequent examination     
 shall be subject to the provisions of Sec. 3.105(e) of this chapter.   
                                                                        
7703  Leukemia:                                                         
    With active disease or during a treatment phase...........       100
    Otherwise rate as anemia (code 7700) or aplastic anemia             
     (code 7716), whichever would result in the greater                 
     benefit.                                                           
                                                                        
Note: The 100 percent rating shall continue beyond the cessation of any 
 surgical, radiation, antineoplastic chemotherapy or other therapeutic  
 procedures. Six months after discontinuance of such treatment, the     
 appropriate disability rating shall be determined by mandatory VA      
 examination. Any change in evaluation based upon that or any subsequent
 examination shall be subject to the provisions of Sec. 3.105(e) of this
 chapter. If there has been no recurrence, rate on residuals.           
                                                                        
7704  Polycythemia vera:                                                
    During periods of treatment with myelosuppressants and for          
     three months following cessation of myelosuppressant               
     therapy..................................................       100
    Requiring phlebotomy......................................        40
    Stable, with or without continuous medication.............        10
                                                                        
Note: Rate complications such as hypertension, gout, stroke or          
 thrombotic disease separately.                                         
                                                                        
7705  Thrombocytopenia, primary, idiopathic or immune:                  
    Platelet count of less than 20,000, with active bleeding,           
     requiring treatment with medication and transfusions.....       100
    Platelet count between 20,000 and 70,000, not requiring             
     treatment, without bleeding..............................        70
    Stable platelet count between 70,000 and 100,000, without           
     bleeding.................................................        30
    Stable platelet count of 100,000 or more, without bleeding         0
7706  Splenectomy.............................................        20
                                                                        
Note: Rate complications such as systemic infections with encapsulated  
 bacteria separately.                                                   
                                                                        
7707  Spleen, injury of, healed.                                        
    Rate for any residuals.                                             
7709  Hodgkin's disease:                                                
    With active disease or during a treatment phase...........       100
                                                                        
Note: The 100 percent rating shall continue beyond the cessation of any 
 surgical, radiation, antineoplastic chemotherapy or other therapeutic  
 procedures. Six months after discontinuance of such treatment, the     
 appropriate disability rating shall be determined by mandatory VA      
 examination. Any change in evaluation based upon that or any subsequent
 examination shall be subject to the provisions of Sec. 3.105(e) of this
 chapter. If there has been no local recurrence or metastasis, rate on  
 residuals.                                                             
                                                                        
7710  Adenitis, tuberculous, active or inactive.                        
    Rate under Secs. 4.88c or 4.89 of this part, whichever is           
     appropriate.                                                       
7714  Sickle cell anemia:                                               
    With repeated painful crises, occurring in skin, joints,            
     bones or any major organs caused by hemolysis and                  
     sickling of red blood cells, with anemia, thrombosis and           
     infarction, with symptoms precluding even light manual             
     labor....................................................       100
    With painful crises several times a year or with symptoms           
     precluding other than light manual labor.................        60
    Following repeated hemolytic sickling crises with                   
     continuing impairment of health..........................        30
    Asymptomatic, established case in remission, but with               
     identifiable organ impairment............................        10
                                                                        
Note: Sickle cell trait alone, without a history of directly            
 attributable pathological findings, is not a ratable disability. Cases 
 of symptomatic sickle cell trait will be forwarded to the Director,    
 Compensation and Pension Service, for consideration under Sec.         
 3.321(b)(1) of this chapter.                                           
                                                                        
7715  Non-Hodgkin's lymphoma:                                           
    With active disease or during a treatment phase...........       100
                                                                        
Note: The 100 percent rating shall continue beyond the cessation of any 
 surgical, radiation, antineoplastic chemotherapy or other therapeutic  
 procedures. Six months after discontinuance of such treatment, the     
 appropriate disability rating shall be dtermined by mandatory VA       
 examination. Any change in evaluation based upon that or any subsequent
 examination shall be subject to the provisions of Sec. 3.105(e) of this
 chapter. If there has been no local recurrence or metastasis, rate on  
 residuals.                                                             
                                                                        
7716  Aplastic anemia:                                                  
    Requiring bone marrow transplant, or; requiring                     
     transfusion of platelets or red cells at least once every          
     six weeks, or; infections recurring at least once every            
     six weeks................................................       100
    Requiring transfusion of platelets or red cells at least            
     once every three months, or; infections recurring at               
     least once every three months............................        60
    Requiring transfusion of platelets or red cells at least            
     once per year but less than once every three months, or;           
     infections recurring at least once per year but less than          
     once every three months..................................        30
    Requiring continuous medication for control...............        10
                                                                        
Note: The 100 percent rating for bone marrow transplant shall be        
 assigned as of the date of hospital admission and shall continue with a
 mandatory VA examination six months following hospital discharge. Any  
 change in evaluation based upon that or any subsequent examination     
 shall be subject to the provisions of Sec. 3.105(e) of this chapter.   
                                                                        


[FR Doc. 95-23515 Filed 9-21-95; 8:45 am]
BILLING CODE 8320-01-P