[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54708-54712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21980]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AM55
Schedule for Rating Disabilities; Evaluation of Scars
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
Schedule for Rating Disabilities by revising that portion of the
Schedule that addresses the Skin, so that it more clearly reflects our
policies concerning the evaluation of scars.
DATES: Effective Date: This amendment is effective October 23, 2008.
Applicability Date: This amendment shall apply to all applications
for benefits received by VA on or after October 23, 2008. A veteran
whom VA rated before such date under diagnostic codes 7800, 7801, 7802,
7803, 7804, or 7805 of 38 CFR 4.118 may request review under these
clarified criteria, irrespective of whether his or her disability has
worsened since the last review. The effective date of any award, or any
increase in disability compensation, based on this amendment will not
be earlier than the effective date of this rule, but will otherwise be
assigned under the current regulations regarding effective dates, 38
CFR 3.400, etc.
FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Regulations Staff
(211D), Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420, (727) 319-5847. (This is not a toll-free
number.)
SUPPLEMENTARY INFORMATION: On January 3, 2008, VA published in the
Federal Register (73 FR 428) a proposal to amend those portions of the
Schedule for Rating Disabilities that address the Skin, 38 CFR 4.118,
by revising the guidelines for the evaluation of scars. Interested
persons were invited to submit written comments on or before February
4, 2008. We received comments from the National Organization of
Veterans' Advocates, Inc. (NOVA), and Disabled American Veterans (DAV).
NOVA's Comment
NOVA addressed a proposed change to a note in diagnostic code 7801
that would consider the trunk as one area of the body. Currently, the
note in diagnostic code 7801 directs that scars on widely separated
areas, as on two or more extremities or on anterior and posterior
surfaces of extremities or trunk, will be separately rated. We proposed
to revise this note to clarify that if multiple scars are present, VA
will assign a separate evaluation for each affected extremity based on
the total area of the qualifying scars on that extremity, and assign a
separate evaluation for the trunk based on the total area of the
qualifying scars on the trunk. Qualifying scars under diagnostic code
7801 are deep scars that are not located on the head, face, or neck.
NOVA is concerned that the proposed change will not adequately
compensate veterans for scars of the trunk. NOVA stated the rationale
for the change of ensuring that the area of all deep scars of the trunk
are taken into account was inadequate considering that the anterior and
posterior surfaces of the trunk may be the largest separate and
distinct areas of the body.
Second, NOVA stated that a scar can cross over into more than one
separate area of the body. In the proposed rule, we stated that such a
scar would be treated as two separate scars to ensure that the ratings
reflect the disability to each distinct area of the body.
Third, NOVA stated the proposed change would potentially result in
a lower evaluation for a veteran with one scar that covers both the
anterior and posterior trunk. NOVA offers the following example: A
veteran has one 30 inch scar that wraps around his anterior and
posterior trunk, with 15 square inches on the anterior side and 15
square inches on his posterior side. Under the current diagnostic code,
this scar would be rated separately at 20 percent and 20 percent, for a
combined evaluation of 40 percent. Under the proposed change, the
veteran would be
[[Page 54709]]
entitled to one evaluation for a 30 inch scar of 20 percent.
Fourth, NOVA comments that under the proposed change a veteran who
has two scars, one on his posterior trunk and one on his anterior
trunk, would only receive one rating for that area; we would not rate
each scar separately, and then provide a combined rating. The effect
could potentially be a lower rating under the revised rule than the
veteran would receive under the current rule.
Response
We did not intend in the proposed regulation to produce a lower
evaluation for scars of the trunk, and we agree that this could happen
under the criteria we proposed. While in the proposed regulation we
considered the trunk to be a single location for purposes of evaluating
multiple scars, after further consideration, we have made changes in
the final rule indicating that the anterior and posterior portions of
the trunk represent separate locations for purposes of evaluation. With
that change, separate evaluations can be assigned for the total area of
qualifying scars of each extremity, for the total area of qualifying
scars of the anterior portion of the trunk, and for the total area of
qualifying scars of the posterior portion of the trunk. Accordingly, we
have changed the first sentence of proposed note 2 under diagnostic
codes 7801 and 7802 to direct raters, if multiple scars are present, or
if a single scar affects more than one extremity, or a single scar
affects one or more extremities and either the anterior portion or
posterior portion of the trunk, or both, or a single scar affects both
the anterior portion and the posterior portion of the trunk, to assign
a separate evaluation based on the total area of qualifying scars of
each affected extremity, the total area of qualifying scars of the
anterior portion of the trunk, if affected, and the total area of the
qualifying scars of the posterior portion of the trunk, if affected.
We have also added a statement in note 2 of diagnostic codes 7801
and 7802 clarifying the borders of the anterior (ventral) and posterior
(dorsal) portions of the trunk, in order to avoid confusion about scars
that may be reported as being on the lateral aspects of the trunk. It
states that the midaxillary line on each side separates the anterior
and posterior portions of the trunk. Therefore, all portions of the
trunk are designated as either ``anterior'' or ``posterior,'' based on
their relationship to the midaxillary line, and there is no portion
that is designated ``lateral.''
We revised note 2 of diagnostic code 7802 to be identical to note 2
of diagnostic code 7801. These notes address the same concept and the
identical language will make the notes easier to use. We are also
making minor technical changes to improve the clarity of both notes.
DAV's Comments
Method of Measurement
DAV commented that while they agreed with the amendment to the
areas of scars, they were concerned that the method of measurement was
not specifically stated in the regulation. DAV stated that the
diagnostic code provides evaluations for square inches. However, scars
are often oddly shaped. DAV proposed that the area of a scar be
measured based on the shape of a rectangle from the top of the scar to
the bottom of the scar for the height measurement, and from the
farthest side points of the scar for the width. According to DAV, this
method of measurement would result in more accurate measurements and
more consistent disability ratings. DAV believes it is difficult for
examiners and adjudicators to determine the surface area in square
inches for oddly shaped scars.
Response
We make no change based on this comment. We note that the current
regulation does not specify a method of measurement, and this has not
created difficulty for medical professionals who are responsible for
measuring scars. Using the ``rectangular area'' method described by DAV
would inappropriately overestimate the area of scars that are
hourglass-shaped, with the narrow area being very long and thin, and
other scars where one portion is much thinner than another. Measuring
as a rectangle in such cases could lead to possible inaccuracies in
evaluation. Measuring the actual surface area, as required by the rule,
will not lead to such inaccuracies; additionally, it is impractical to
set forth all of the methods that can be used to measure scars of
various shapes and sizes. No two scars are identical, and different
measuring techniques must be employed based on the size, shape, and
location of a particular scar. Relying on medical professionals who
measure and describe scars in VA medical examinations and on evidence
contained in medical records is more likely to produce accurate
measurements than a general rule such as the one proposed by DAV. As
such, it would not be helpful to revise the regulation to specify a
method of measuring scars.
Diagnostic Code 7801 Note 2 Preamble
DAV stated that the discussion of proposed diagnostic code 7801
note 2 in the preamble of our notice of proposed rulemaking states that
scars may run into two separate areas and each area should be
separately evaluated. However, DAV stated that the note itself does not
state this. DAV believes that VA should ensure that this concept is
included in the note to ensure scars are properly evaluated.
Response
We agree that note 2 can be clearer on this point. Our revision to
note 2 discussed above will include a revision based on this comment.
Additionally, for clarity and as part of the revision based on the
separate comment, we will make the same revision to note 2 of
diagnostic code 7802.
Diagnostic Code 7801 Note 2 Separate Ratings
DAV additionally stated that the proposed criterion that requires
adjudicators to award separate ratings for a scar that runs into two
separate areas, for example the trunk and left arm, may be less
beneficial to veterans in some cases. DAV stated that a veteran with a
scar of 12 square inches: 11 square inches on the trunk and 1 square
inch on the left arm, would receive a 10 percent evaluation for the
trunk and 0 percent evaluation for the left arm, which combine to 10
percent. If the 12 square inch scar was solely on the trunk, the
veteran receives a 20 percent evaluation. DAV believes that
adjudicators should be able to award either a single rating for the
combined surface area of a scar that runs into two separate areas, or
separate ratings, whichever results in the higher rating.
Response
We make no change based on this comment. We note that the
requirement to separately evaluate scars on separate areas of the body
is not a new requirement; our proposed language merely clarifies
already existing evaluation methods. Further, we evaluate separate
areas of the body to compensate for functional loss of the different
areas of the body separately. In the example mentioned by DAV, the
veteran has an 11 square inch scar of the trunk versus a 12 square inch
scar of the trunk, which require different evaluations because the 12
square inch scar could lead to greater functional loss of the trunk.
VA's ratings are based on the average impairment to earning
[[Page 54710]]
capacity caused by service-connected disabilities. 38 U.S.C. 1155. Each
area of the body identified in the rule has a separate and distinct
function; therefore, a scar that affects a single area of the body is
less likely to produce greater overall disability than a similar scar
that affects more than one area of the body. For this reason, we will
rate the separate areas of the body separately. Although DAV suggests
that assigning separate ratings for each affected body part may be less
favorable to claimants in certain circumstances than assigning only one
rating for each scar that affects more than one body part, we believe
that assigning separate ratings for each affected body part generally
will be beneficial to claimants and, moreover, more closely comports
with the purpose of assigning ratings based on functional loss.
We made an additional change to the title of diagnostic code 7800
for the sake of clarity. To avoid any possible confusion about whether
it refers to burn scars, scars due to other causes, or disfigurement
only of the head, face, or neck, or also to scars or disfigurement in
other areas, we clarified the title by changing it to ``Burn scar(s) of
the head, face, or neck; scar(s) of the head, face, or neck due to
other causes; or other disfigurement of the head, face, or neck''. This
eliminates any possible confusion about the purpose of this diagnostic
code but does not represent a substantive change from the proposed
regulation.
VA appreciates the comments submitted in response to the proposed
rule. Based on the rationale stated in the proposed rule and in this
document, the proposed rule is adopted as a final rule with the changes
noted.
We are additionally adding updates to 38 CFR part 4, Appendices A,
B, and C, to reflect changes to the diagnostic criteria for scars made
by this rulemaking. The appendices are tools for users of the Schedule
for Rating Disabilities and do not contain substantive content
regarding evaluation of disabilities. As such, we believe it is
appropriate to include these updates in this final rule.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule 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. This final rule would not affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), this final rule is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
Executive Order 12866
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), 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 Order.
The economic, interagency, budgetary, legal, and policy
implications of this final rule have been examined and it has been
determined to be a significant regulatory action under the Executive
Order because it is likely to result in a rule that may raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the 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 year. This final 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 final rule are 64.104, Pension for Non-Service-
Connected Disability for Veterans, and 64.109, Veterans Compensation
for Service-Connected Disability.
List of Subjects in 38 CFR Part 4
Disability benefits, Pensions, Veterans.
Approved: June 20, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
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For the reasons set out in the preamble, 38 CFR part 4, subpart B, is
amended as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
Subpart B--Disability Ratings
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1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155, unless otherwise noted.
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2. Section 4.118 is amended by:
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a. Adding an introductory paragraph.
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b. Revising the heading to diagnostic code 7800 and adding new notes
(4) and (5).
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c. Revising diagnostic codes 7801, 7802, 7804, and 7805.
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d. Removing diagnostic code 7803.
The additions and revisions read as follows:
Sec. 4.118 Schedule of ratings--skin.
A veteran who VA rated under diagnostic codes 7800, 7801, 7802,
7803, 7804, or 7805 before October 23, 2008 can request review under
diagnostic codes 7800, 7801, 7802, 7804, and 7805, irrespective of
whether the veteran's disability has increased since the last review.
VA will review that veteran's disability rating to determine whether
the veteran may be entitled to a higher disability rating under
diagnostic codes 7800, 7801, 7802, 7804, and 7805. A request for review
pursuant to this rulemaking will be treated as a claim for an increased
rating for purposes of determining the effective date of an increased
rating awarded as a result of such review; however, in no case will the
award be effective before October 23, 2008.
[[Page 54711]]
------------------------------------------------------------------------
Rating
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7800 Burn scar(s) of the head, face, or neck; scar(s) of
the head, face, or neck due to other causes; or other
disfigurement of the head, face, or neck:
* * * * * * *
Note (4): Separately evaluate disabling effects other than
disfigurement that are associated with individual scar(s)
of the head, face, or neck, such as pain, instability, and
residuals of associated muscle or nerve injury, under the
appropriate diagnostic code(s) and apply Sec. 4.25 to
combine the evaluation(s) with the evaluation assigned
under this diagnostic code................................
Note (5): The characteristic(s) of disfigurement may be
caused by one scar or by multiple scars; the
characteristic(s) required to assign a particular
evaluation need not be caused by a single scar in order to
assign that evaluation....................................
7801 Burn scar(s) or scar(s) due to other causes, not of
the head, face, or neck, that are deep and nonlinear:
Area or areas of 144 square inches (929 sq. cm.) or 40
greater...............................................
Area or areas of at least 72 square inches (465 sq. 30
cm.) but less than 144 square inches (929 sq. cm.)....
Area or areas of at least 12 square inches (77 sq. cm.) 20
but less than 72 square inches (465 sq. cm.)..........
Area or areas of at least 6 square inches (39 sq. cm.) 10
but less than 12 square inches (77 sq. cm.)...........
Note (1): A deep scar is one associated with underlying
soft tissue damage........................................
Note (2): If multiple qualifying scars are present, or if a
single qualifying scar affects more than one extremity, or
a single qualifying scar affects one or more extremities
and either the anterior portion or posterior portion of
the trunk, or both, or a single qualifying scar affects
both the anterior portion and the posterior portion of the
trunk, assign a separate evaluation for each affected
extremity based on the total area of the qualifying scars
that affect that extremity, assign a separate evaluation
based on the total area of the qualifying scars that
affect the anterior portion of the trunk, and assign a
separate evaluation based on the total area of the
qualifying scars that affect the posterior portion of the
trunk. The midaxillary line on each side separates the
anterior and posterior portions of the trunk. Combine the
separate evaluations under Sec. 4.25. Qualifying scars
are scars that are nonlinear, deep, and are not located on
the head, face, or neck...................................
7802 Burn scar(s) or scar(s) due to other causes, not of
the head, face, or neck, that are superficial and
nonlinear:
Area or areas of 144 square inches (929 sq. cm.) or 10
greater...............................................
Note (1): A superficial scar is one not associated with
underlying soft tissue damage.............................
Note (2): If multiple qualifying scars are present, or if a
single qualifying scar affects more than one extremity, or
a single qualifying scar affects one or more extremities
and either the anterior portion or posterior portion of
the trunk, or both, or a single qualifying scar affects
both the anterior portion and the posterior portion of the
trunk, assign a separate evaluation for each affected
extremity based on the total area of the qualifying scars
that affect that extremity, assign a separate evaluation
based on the total area of the qualifying scars that
affect the anterior portion of the trunk, and assign a
separate evaluation based on the total area of the
qualifying scars that affect the posterior portion of the
trunk. The midaxillary line on each side separates the
anterior and posterior portions of the trunk. Combine the
separate evaluations under Sec. 4.25. Qualifying scars
are scars that are nonlinear, superficial, and are not
located on the head, face, or neck........................
7804 Scar(s), unstable or painful:
Five or more scars that are unstable or painful........ 30
Three or four scars that are unstable or painful....... 20
One or two scars that are unstable or painful.......... 10
Note (1): An unstable scar is one where, for any reason,
there is frequent loss of covering of skin over the scar..
Note (2): If one or more scars are both unstable and
painful, add 10 percent to the evaluation that is based on
the total number of unstable or painful scars.............
Note (3): Scars evaluated under diagnostic codes 7800,
7801, 7802, or 7805 may also receive an evaluation under
this diagnostic code, when applicable.....................
7805 Scars, other (including linear scars) and other
effects of scars evaluated under diagnostic codes 7800,
7801, 7802, and 7804:
Evaluate any disabling effect(s) not considered in a
rating provided under diagnostic codes 7800-04 under
an appropriate diagnostic code........................
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* * * * *
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3. In Appendix A to Part 4, Sec. 4.118 revise diagnostic codes 7800,
through 7804 and add diagnostic code 7805 to read as follows:
Appendix A to Part 4--Table of Amendments and Effective Dates Since
1946
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Diagnostic
Sec. code No.
------------------------------------------------------------------------
* * * * * * *
4.118.......................... 7800 Evaluation August 30,
2002; criterion October
23, 2008.
7801 Criterion July 6, 1950;
criterion August 30,
2002; criterion October
23, 2008.
7802 Criterion September 22,
1978; criterion August
30, 2002; criterion
October 23, 2008.
7803 Criterion August 30, 2002;
removed October 23, 2008.
7804 Criterion July 6, 1950;
criterion September 22,
1978; criterion and
evaluation October 23,
2008.
7805 Criterion October 23,
2008.
* * * * * * *
------------------------------------------------------------------------
0
4. In Appendix B to Part 4 remove diagnostic code 7803 and its
disability entry and revise the disability entries for diagnostic codes
7800, 7801, 7802, 7804, and 7805 to read as follows:
Appendix B to Part 4--Numerical Index of Disabilities
[[Page 54712]]
------------------------------------------------------------------------
Diagnostic code No.
------------------------------------------------------------------------
THE SKIN
* * * * * * *
7800................................. Burn scar(s) of the head, face,
or neck; scar(s) of the head,
face, or neck due to other
causes; or other disfigurement
of the head, face, or neck.
7801................................. Burn scar(s) or scar(s) due to
other causes, not of the head,
face, or neck, that are deep and
nonlinear.
7802................................. Burn scar(s) or scar(s) due to
other causes, not of the head,
face, or neck, that are
superficial and nonlinear.
7804................................. Scar(s), unstable or painful.
7805................................. Scars, other.
* * * * * * *
------------------------------------------------------------------------
0
5. In Appendix C to Part 4, revise the disability entries immediately
following the heading ``Scars:'' to read as follows:
Appendix C to Part 4--Alphabetical Index of Disabilities
------------------------------------------------------------------------
Diagnostic
code No.
------------------------------------------------------------------------
* * * * * * *
Scars:
Burn scar(s) of the head, face, or neck; scar(s) of the 7800
head, face, or neck due to other causes; or other
disfigurement of the head, face, or neck................
Burn scar(s) or scars(s) due to other causes, not of the 7801
head, face, or neck, that are deep and nonlinear........
Burn scar(s) or scars(s) due to other causes, not of the 7802
head, face, or neck, that are superficial and nonlinear.
Other.................................................... 7805
Retina................................................... 6011
Unstable or painful...................................... 7804
* * * * * * *
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[FR Doc. E8-21980 Filed 9-22-08; 8:45 am]
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