[Federal Register Volume 75, Number 120 (Wednesday, June 23, 2010)]
[Proposed Rules]
[Pages 35711-35712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15169]



38 CFR Part 4

RIN 2900-AN60

Schedule for Rating Disabilities; Evaluation of Amyotrophic 
Lateral Sclerosis

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.


SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
Schedule for Rating Disabilities by revising the evaluation criterion 
for amyotrophic lateral sclerosis (ALS) to provide a 100-percent 
evaluation for any veteran with service-connected ALS. This change is 
necessary to adequately compensate veterans who suffer from this 
progressive, untreatable, and fatal disease. This change is intended to 
provide a total disability rating for any veteran with service-
connected ALS.

DATES: Comments must be received on or before July 23, 2010.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-AN60-Schedule for Rating Disabilities; Evaluation of 
Amyotrophic Lateral Sclerosis.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 461-4902 
(this is not a toll-free number) for an appointment. In addition, 
during the comment period, comments may be viewed online through the 
Federal Docket Management System (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Thomas J. Kniffen, Chief, Regulations 
Staff (211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 461-9725. (This is not a toll-free 

SUPPLEMENTARY INFORMATION: VA proposes to amend its Schedule for Rating 
Disabilities (38 CFR part 4) by revising the evaluation criterion for 
ALS under diagnostic code 8017 in Sec.  4.124a, the schedule of ratings 
for neurological conditions and convulsive disorders. Currently, the 
schedule provides only a single criterion for ALS, a minimum disability 
evaluation of 30 percent. We propose to remove this criterion and 
replace it with a minimum disability evaluation of 100 percent. The 
Secretary has authority to make this amendment pursuant to 38 U.S.C. 
    ALS, also known as Lou Gehrig's disease, is a motor neuron disease 
that results in muscle weakness leading to a wide range of serious 
disabilities, including problems with mobility. It often affects the 
muscles that control swallowing, leading to the possibility of 
aspiration (the inspiratory sucking of fluid into the airways) and 
pneumonia. It eventually paralyzes the respiratory muscles, and the 
most common cause of death in ALS is respiratory failure. ALS is a 
terminal illness; the life expectancy of a person with ALS ordinarily 
ranges from about 3 to 5 years after diagnosis. Fifty percent of 
patients die within 3 years of diagnosis, about 20 percent live 5 
years, and 10 percent survive for 10 or more years. See http://www.neurologychannel.com/als/treatment.shtml; http://www.mayoclinic.com/health/amyotrophic-lateral-sclerosis/DS00359/DSECTION=complications; and http://www.ninds.nih.gov/disorders/amyotrophiclateralsclerosis/detail_amyotrophiclateralsclerosis.htm.
    ALS is rated under 38 CFR 4.124a, diagnostic code 8017, which 
currently provides a minimum disability evaluation of 30 percent. 
However, the guidelines in 38 CFR 4.120 (Evaluations by comparison) 
direct that disability from neurologic conditions be rated in 
proportion to the impairment of motor, sensory, or mental function. 
Therefore, any level of evaluation, including 100 percent, can 
currently be assigned for ALS under diagnostic code 8017. However, 
individuals with ALS have a rapidly deteriorating course of illness and 
quickly reach a level of total disability. Providing a 100-percent 
evaluation in all cases would obviate the need to reassess and 
reevaluate veterans with ALS repeatedly over a short period of time, as 
the condition worsens and inevitably and relentlessly progresses to 
total disability. Therefore, we propose to change the minimum 
evaluation for ALS from 30 to 100 percent. Although ALS may not be 
totally disabling at the time of diagnosis or when VA compensation is 
claimed for the condition, ALS is a seriously disabling, rapidly 
progressive, untreatable, and fatal condition.
    VA's schedule of ratings for neurological conditions and convulsive 
disorders provides a 100-percent disability evaluation for certain 
other motor neuron diseases that progressively lead to disability or 
death. See 38 CFR 4.124a, Diagnostic Codes 8005 (Bulbar palsy), 8105 
(Sydenham's chorea of the ``progressive grave type''), and 8106 
(Huntington's chorea). Given that ALS is a rapidly progressing 
neurodegenerative disease and that many of its disabling effects are 
similar to other neurological disorders that VA rates at 100 percent, 
we propose to compensate veterans with ALS similarly. The 100-percent 
rating would ensure that veterans with ALS are evaluated adequately and 
would eliminate any delay in reaching an appropriate level of 
compensation as their disease rapidly progresses.
    In addition, we propose to add a note to consider the need for 
special monthly compensation, which will be quite a common need in 
these veterans.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would 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. This amendment would not significantly impact any small 
entities. 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.

[[Page 35712]]

Executive Order 12866--Regulatory Planning and Review

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review, as any regulatory action that is likely to result in a rule 
that may: (1) Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined, and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866 because it is unlikely to result in a rule that may raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or principles set forth in the Executive Order.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any 1 year. This proposed rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this proposal are 64.104, Pension for Non-Service-Connected 
Disability for Veterans, and 64.109, Veterans Compensation for Service-
Connected Disability.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs approved this 
document on June 17, 2010 for publication.

List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

    Dated: June 18, 2010.
William F. Russo,
Director of Regulations Management, Office of the General Counsel.
    For the reasons set out in the preamble, 38 CFR part 4, subpart B, 
is proposed to be amended as set forth below:


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

    Authority: 38 U.S.C. 1155, unless otherwise noted.

Subpart B--Disability Ratings

    2. In Sec.  4.124a, revise diagnostic code 8017 to read as follows:

Sec.  4.124a  Schedule of ratings--neurological conditions and 
convulsive disorders.

                                * * * * *
8017 Amyotrophic lateral sclerosis............................       100

    Note:  Consider the need for special monthly compensation.

* * * * *
[FR Doc. 2010-15169 Filed 6-22-10; 8:45 am]