Schedule for Rating Disabilities; Evaluation of Scars, 428-432 [E7-25525]
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Federal Register / Vol. 73, No. 2 / Thursday, January 3, 2008 / Proposed Rules
the fund is not in excess of 10 percent
of the total value of all of the fund’s
investments.
(4) Parent corporation. Parent
corporation has the meaning given such
term by section 424(e).
(5) Publicly traded—(i) In general. A
security is publicly traded if it is readily
tradable on an established securities
market.
(ii) Established securities market. For
purposes of this paragraph (f)(5), a
security is traded on an established
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(A) The security is traded on a
national securities exchange that is
registered under section 6 of the
Securities and Exchange Act of 1934 (15
U.S.C. 78f); or
(B) The security is traded on a foreign
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(iii) Readily tradable. For purposes of
this paragraph (f)(5), except as provided
by the Commissioner in revenue rulings,
notices, or other guidance published in
the Internal Revenue Bulletin, a security
is readily tradable if—
(A) The security is traded on a
securities exchange that is described in
paragraph (f)(5)(ii)(A) of this section; or
(B) The security is traded on a
securities exchange that is described in
paragraph (f)(5)(ii)(B) of this section and
the security is deemed by the Securities
and Exchange Commission (SEC) as
having a ‘‘ready market’’ under SEC
Rule 15c3–1 (17 CFR 240.15c3–1).
(g) Effective date and transition
rules—(1) Statutory effective date—(i)
General rule. Except as otherwise
provided in this paragraph (g), section
401(a)(35) is effective for plan years
beginning after December 31, 2006.
(ii) Collectively bargained plans—(A)
Delayed effective date. In the case of a
plan maintained pursuant to one or
more collective bargaining agreements
between employee representatives and
one or more employers ratified on or
before August 17, 2006, section
401(a)(35) is effective for plan years
beginning after the earlier of
(1) the later of—
(i) December 31, 2007; or
(ii) the date on which the last such
collective bargaining agreement
terminates (determined without regard
to any extension thereof); or
(2) December 31, 2008.
(B) Definition of collectively
bargained plans. For purposes of this
paragraph (g)(1)(ii), in the case of a plan
for which one or more collective
bargaining agreements apply to some,
but not all, of the plan participants, the
plan is considered a collectively
bargained plan if at least 25 percent of
the participants in the plan are members
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of collective bargaining units for which
the contributions under the plan are
specified under a collective bargaining
agreement.
(iii) Special rule for certain employer
securities held in an ESOP. Section
901(c)(3)(A) and (B) of the Pension
Protection Act of 2006, Public Law 109–
280, 120 Stat. 780 (PPA ’06), provides a
special effective date for an employee
stock ownership plan that holds a class
of preferred stock with a guaranteed
minimum value, as described in that
section.
(2) Statutory transition rules—(i)
General rule. Pursuant to section
401(a)(35)(H), in the case of the portion
of an account to which paragraph (c) of
this section applies and that consists of
employer securities acquired in a plan
year beginning before January 1, 2007,
the requirements of paragraph (c) of this
section only apply to the applicable
percentage of such securities.
(ii) Applicable percentage—(A)
Phase-in percentage. For purposes of
this paragraph (g)(2), the applicable
percentage is determined as follows—
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 4
RIN 2900–AM55
Schedule for Rating Disabilities;
Evaluation of Scars
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
SUMMARY: This document proposes to
amend 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: Comments must be received on
or before February 4, 2008.
ADDRESSES: Written comments may be
submitted through
www.Regulations.gov; by mail or handdelivery to the Director, Regulations
Management (00REG), Department of
Veterans Affairs, 810 Vermont Ave.,
NW., Room 1068, Washington, DC
The appli- 20420; or by fax to (202) 273–9026.
Plan year to which paragraph (c) cable perComments should indicate that they are
of this section applies:
centage
submitted in response to RIN 2900is:
AM55 ‘‘Schedule for Rating Disabilities;
1st .................................................
33 Evaluation of Scars.’’ Copies of
2nd ................................................
66 comments received will be available for
3rd and following ..........................
100 public inspection in the Office of
Regulation Policy and Management,
(B) Special rule. For a plan described
Room 1063B, between the hours of 8
in paragraph (g)(1)(iii) of this section for a.m. and 4:30 p.m. Monday through
which the special effective date under
Friday (except holidays). Please call
section 901(c)(3) of PPA ’06 applies, the (202) 461–4902 for an appointment.
applicable percentage under this
(This is not a toll-free number.) In
paragraph (g)(2)(ii) is determined
addition, during the comment period,
without regard to the delayed effective
comments may be viewed online
date in section 901(c)(3)(A) and (B) of
through the Federal Docket Management
PPA ’06.
System (FDMS) at www.Regulations.gov.
(iii) Nonapplication for participants
FOR FURTHER INFORMATION CONTACT:
age 55 with three years of service.
Maya Ferrandino, Regulations Staff
Paragraph (g)(2)(i) of this section does
(211D), Compensation and Pension
not apply to an individual who is a
Service, Veterans Benefits
participant who attained age 55 and had
Administration, Department of Veterans
completed at least three years of service
Affairs, 810 Vermont Avenue, NW.,
(as defined in paragraph (c)(3) of this
Washington, DC 20420, (727) 319–5847.
section) before the first day of the first
(This is not a toll-free number.)
plan year beginning after December 31,
SUPPLEMENTARY INFORMATION: This
2005.
document proposes to amend the
(iv) Separate application by class of
Department of Veterans Affairs (VA)
securities. This paragraph (g)(2) applies
Schedule for Rating Disabilities (38 CFR
separately with respect to each class of
part 4) by revising the portions of
securities.
§ 4.118, the Skin, that address scars. A
(3) Regulatory effective date. This
prior proposed rulemaking addressing
section is effective for plan years
the evaluation of scars was published in
beginning on or after January 1, 2009.
the Federal Register (67 FR 65915) on
Linda E. Stiff,
October 29, 2002, but it was
Deputy Commissioner for Services and
subsequently withdrawn as VA
Enforcement.
determined that the proposed
[FR Doc. E7–25533 Filed 1–2–08; 8:45 am]
amendments did not accomplish the
BILLING CODE 4830–01–P
stated purpose or intended effect. The
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withdrawal was published at 71 FR
78391 on December 29, 2006.
Scars resulting from burns potentially
involve a wide range of locations, extent
and severity. This rule would clarify
that VA’s diagnostic codes and means
for evaluating scars, set forth under
§ 4.118, also encompass burn scars by
incorporating ‘‘burn scars’’ into the title
of the diagnostic codes most appropriate
for evaluating them. At the same time,
it would revise diagnostic codes 7800,
7801, 7802, 7804, and 7805, and remove
diagnostic code 7803, to update and
clarify the rating schedule.
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Diagnostic Code 7800
Diagnostic code 7800 addresses
disfigurement of the head, face, or neck,
and provides criteria for evaluation
based on eight possible characteristics
of disfigurement and the extent of any
gross distortion or asymmetry of facial
features. We propose to change the title
of diagnostic code 7800 from
‘‘Disfigurement of the head, face, or
neck’’ to ‘‘Burn scar(s); scar(s) due to
other causes; or other disfigurement of
the head, face, or neck’’ to more clearly
indicate that scarring, including burn
scarring, may be the cause of
disfigurement.
There are currently three notes under
diagnostic code 7800, and we propose to
add two more. New note #4 directs that
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, be evaluated under the
appropriate diagnostic code(s) and
combined under § 4.25. This note would
provide clear guidance to raters for
assessing disability other than
disfigurement that is related to scars of
the head, face, and neck.
We propose to add new note #5 to
explain that the number of
characteristics of disfigurement required
to reach a particular evaluation level
need not be present in a single scar in
order to assign that level. The purpose
of this proposed change is to ensure
clarity in the method of application of
the eight characteristics of
disfigurement.
Diagnostic Code 7801
We propose to change the title of
diagnostic code 7801 from ‘‘Scars, other
than head, face, or neck, that are deep
or that cause limited motion’’ to ‘‘Burn
scar(s) or scar(s) due to other causes, not
of the head, face, or neck, that are deep
and nonlinear.’’ First, this change
indicates that this is the appropriate
diagnostic code for the evaluation of
burn scars that are deep, as well as for
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nonburn scars that are deep. Second, the
addition of ‘‘that are nonlinear’’ further
clarifies what types of scars require
evaluation under this diagnostic code.
Because evaluation under diagnostic
code 7801 is based on the surface area
of scar(s), with the minimum
compensable level requiring an area of
at least 6 square inches (39 square
centimeters), linear scars, which may
have considerable length but only
minimal width, could virtually never
reach even the minimum evaluation
under this diagnostic code. Therefore, it
is not an appropriate diagnostic code to
use for their evaluation. Linear scars,
which would include, for example, most
surgical scars, would be evaluated
under diagnostic code 7804, as well as
7805, if applicable.
Third, the removal of reference to
scars that limit motion reflects other
changes proposed by this rule. Currently
a scar that limits motion is assigned a
rating under diagnostic code 7801, but
the rating is based solely on the area of
the scar and thus may not accurately
reflect the degree of limitation of
motion. As proposed by this rule,
diagnostic code 7805 would make clear
that veterans may receive a rating for the
limitation of motion, or other functional
effects of scars, under the diagnostic
codes specifically governing such effects
on the relevant body part, and that such
a rating may be assigned in addition to
any rating under diagnostic code 7801
or 7802 based on the area of the scar.
We believe this practice would more
accurately reflect the true level of
disability where a scar limits motion.
Accordingly, there is no need to refer to
limitation of motion in diagnostic code
7801.
The evaluation criteria for diagnostic
code 7801 are based on the area(s) of
scars that fall under this diagnostic code
and are currently: Area or areas
exceeding 144 square inches (929 sq.
cm.) for 40 percent, area or areas
exceeding 72 square inches (465 sq. cm.)
for 30 percent, area or areas exceeding
12 square inches (77 sq. cm.) for 20
percent, and area or areas exceeding 6
square inches (39 sq. cm.) for 10
percent. We propose to make a
nonsubstantive change to these
evaluation criteria to eliminate any
possible confusion in the current
criteria and to provide clear guidance on
evaluating scars that fall between the
sizes indicated at various percentage
levels, for example a scar that exceeds
72 square inches but does not reach 144
square inches in area. This amendment
would change the criteria to: Area or
areas of at least 6 square inches (39 sq.
cm.) but less than 12 square inches (77
sq. cm.) for 10 percent, area or areas of
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at least 12 square inches (77 sq. cm.) but
less than 72 square inches (465 sq. cm.)
for 20 percent, area or areas of at least
72 square inches (465 sq. cm.) but less
than 144 square inches (929 sq. cm.) for
30 percent, and area or areas of 144
square inches (929 sq. cm.) or greater for
40 percent.
We propose to redesignate current
Note (2) as Note (1). We propose to
revise current Note (1) under diagnostic
code 7801 (which is renumbered as note
(2)) to make clearer the guidance on
evaluating multiple scars under this
diagnostic code and to assure that it
reflects current policy. The current note
says: ‘‘Scars in widely separated areas,
as on two or more extremities or on
anterior and posterior surfaces of
extremities or trunk, will be separately
rated and combined in accordance with
§ 4.25 of this part.’’ We propose 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 of that extremity, and assign a
separate evaluation for the trunk, if
affected, based on the total area of the
qualifying scars of the trunk. Note (2)
would also direct that the separate
evaluations be combined under § 4.25.
Qualifying scars are deep scars that are
not located on the head, face, or neck.
Multiple scars on different parts of the
body (i.e, each extremity and the trunk),
such as a scar on each arm or separate
scars on the right leg and torso, would
be evaluated separately based on the
surface area of the scar located on each
affected body part. Similarly, multiple
scars on one part of the body, such as
two scars on the right arm, would be
evaluated based on the surface area of
the scars on that part of the body. In this
manner, a veteran with two scars on one
arm would receive a single rating but a
veteran with one scar on each arm
would receive two ratings, but both
evaluations would reflect the area of the
scar(s). We recognize that a veteran with
one affected body part may be
compensated at a slightly lower rate
than a veteran with two affected body
parts, depending on the size of the areas
of scarring. However, this difference
reflects the somewhat greater difficulty
in obtaining and maintaining
employment that is caused by two scars
that are not located near each other as
compared to two scars proximate to
each other.
Note (2), as revised, would also
acknowledge that a scar may run into
two separate areas (for example a scar of
the trunk that runs across the shoulder
onto the left arm). This one scar would
be treated as two separate scars to
ensure that the ratings reflect the effects
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on distinct areas of the body. For
example, we would separately evaluate
the surface area of the portion of the
scar located on the extremity and the
surface area of the portion of the scar
located on the trunk, and then combine
those ratings under 38 CFR 4.25.
This revised note would remove any
possible ambiguity regarding the
appropriate rating for a scar that affects
the trunk and one or more extremities,
a scar that affects two or more
extremities, and multiple scars. In
addition, it would clarify that each
extremity and the trunk represent the
only body areas for which we may
assign ratings. In other words, it would
clarify the possible ambiguity present in
the current regulation as to whether
these areas of the body are merely
examples of scarred body parts eligible
for a disability rating.
Further, although the current note
addresses the anterior and posterior
surfaces of the trunk as widely
separated areas, we propose that the
trunk be considered as a single area.
This would ensure that the area of all
deep scars of the trunk are taken into
account in the evaluation. Scars of the
trunk of considerable area may extend
from one surface of the trunk to another,
crossing the sides of the trunk, and as
such the anterior and posterior surfaces
of the trunk are not widely separate
areas. Under this note #2, a maximum
of 40 percent could be assigned for each
of the five areas, including the trunk.
This proposed note is clearer and easier
to apply than the current note,
represents an accurate view of our
current policy, and provides appropriate
levels of evaluation for these types of
scars.
Diagnostic Code 7802
We propose to change the title of this
diagnostic code from ‘‘Scars, other than
head, face, or neck, that are superficial
and that do not cause limited motion’’
to ‘‘Burn scar(s) or scar(s) due to other
causes, not of the head, face, or neck,
that are superficial and nonlinear.’’ As
with diagnostic code 7801, we propose
to add burn scar(s) to the title to
indicate that this is the appropriate
diagnostic code for the evaluation of
superficial burn scars and other
superficial scars that are nonlinear. As
under diagnostic code 7801, evaluation
under diagnostic code 7802 is based on
area, and it is therefore not an
appropriate diagnostic code for the
evaluation of linear scars.
We propose to revise Note (1) in a
similar manner to the revision of Note
(1) under diagnostic code 7801, in order
to make the guidance on evaluating
multiple scars under this diagnostic
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code clearer and to ensure that it reflects
current policy.
Diagnostic Codes 7803 and 7804
Diagnostic code 7803 is now titled
‘‘Scars, superficial, unstable,’’ and
provides a single evaluation level of 10
percent for such scars. It also includes
two notes, one defining an unstable scar
and the other defining a superficial scar.
Diagnostic code 7804 is now titled
‘‘Scars, superficial, painful on
examination’’ and provides a single
evaluation level of 10 percent for such
scars.
We propose deleting diagnostic code
7803 and amending diagnostic code
7804 so that it will govern the
evaluation of both unstable and painful
scars. Because a deep scar can also be
unstable, painful, or both, we propose
removing ‘‘superficial’’ from the title of
diagnostic code 7804, so that it will
apply to both deep and superficial scars.
The new title of diagnostic code 7804
would be: ‘‘Scar(s), unstable or painful’’.
We propose removing the ‘‘on
examination’’ language in the new title
because VA’s disability ratings are based
on relevant medical evidence; as such,
to include ‘‘on examination’’ in the title
is redundant.
We propose providing evaluation
criteria that encompass both unstable
and painful scars and apply to one or
more scars. We propose assigning a 10
percent evaluation if there are one or
two scars that are unstable or painful, a
20 percent evaluation if there are three
or four scars that are unstable or painful,
and a 30 percent evaluation if there are
five or more scars that are unstable or
painful. Furthermore, we propose
adding a note #2 explaining that if one
or more scars are both unstable and
painful, 10 percent will be added to the
evaluation based on the total number of
unstable or painful scars. The existing
criteria provide no specific guidance on
evaluating multiple painful or unstable
scars, and we propose providing new
criteria that reflect our policies
concerning the evaluation of multiple
superficial scars that are unstable,
painful, or both. In our judgment, these
criteria are equitable, in that if five
painful scars are present on a single
extremity, for example, they would
receive the same evaluation (30 percent)
as would five painful scars, if one were
on each extremity, and one on the trunk.
Unlike the physical effects of a deep or
superficial scar, which may be limited
to a particular part of the body, pain
tends to affect the person as a whole;
therefore, in cases of multiple scars, this
diagnostic code does not distinguish
scars based on where they are located
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but rather considers their cumulative
effect.
Finally, we propose adding note #3,
which indicates that scars evaluated
under diagnostic codes 7800, 7801,
7802, or 7805 may also receive an
evaluation under diagnostic code 7804,
when applicable. This would clarify
which types of scars may be evaluated
under diagnostic code 7804 as well as
under another diagnostic code.
We propose deleting note #1 to
diagnostic code 7804, which defines a
superficial scar, because we propose to
make this diagnostic code applicable to
both deep and superficial scars, and
there will therefore no longer be a need
to define a superficial scar under this
diagnostic code. We propose replacing it
with new note #1, which defines an
unstable scar (using the same definition
as in Note (1) under current diagnostic
code 7803).
We also propose deleting Note (2) to
diagnostic code 7804, concerning the
evaluation of a scar on the tip of a finger
or toe. The note is unnecessary because
a scar on the tip of a finger or toe is
evaluated under the same criteria as any
other scar. In other words, a fingertip is
part of the arm extremity and a toe is
part of the leg extremity. We propose
replacing that note with new note #2,
discussed above.
Diagnostic Code 7805
Current diagnostic code 7805 has
been most commonly used to evaluate
well-healed, asymptomatic, linear
surgical or wound scars. This diagnostic
code includes a direction to rate on
limitation of function of affected part.
We propose revising the provision in
order to clarify its intended
applicability, but substantively it
continues to serve the same purpose.
We propose that diagnostic code 7805
now be titled, ‘‘Scars, other (including
linear scars) and other effects of scars
evaluated under Diagnostic Codes 7800,
7801, 7802, and 7804’’, in order to
emphasize that a single scar may
receive, for example, a rating under both
diagnostic codes 7801 and 7805. The
purpose of the rating under diagnostic
code 7805 is to ensure that we evaluate
the disabling effects of a scar other than
those reflected in an evaluation under
the criteria set forth in diagnostic codes
7800–04. Most often, this diagnostic
code is used to evaluate healed scars
that are linear, are not tender or
unstable, and are not of head, face, or
neck, but may cause functional
limitation to the affected body part, for
example, a healed appendectomy scar or
a scar related to gall bladder removal.
An evaluation under this diagnostic
code would therefore consist of a
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hyphenated diagnostic code, with
diagnostic code 7805 being the primary,
and the affected body part being
secondary, with the rating percentage
based on the body part.
Applicability Date
VA proposes to make the provisions
of this rule applicable to all applications
for benefits received by VA on or after
the effective date of this rule. A veteran
who VA rated under diagnostic codes
7800, 7801, 7802, 7803, 7804, or 7805 of
§ 4.118, as in effect prior to the effective
date of this rule, will be permitted to
request review under these clarified
criteria, irrespective of whether his or
her disability has worsened since the
last review. VA would review that
veteran’s disability rating to determine
whether the veteran may be entitled to
a higher disability rating under the
provisions established by this
rulemaking. The effective date of any
award of an increase in disability
compensation based on the
clarifications in this rule would not be
earlier than the effective date of the new
criteria, but will otherwise be assigned
under the current regulations regarding
effective dates for increases in disability
compensation, 38 CFR 3.400, etc. We
propose adding this provision in the
regulation to ensure veterans are fully
notified of the availability of the review.
We propose establishing this process
for veterans potentially affected by this
rulemaking in order to ensure that
veterans, especially those wounded
during Operation Enduring Freedom or
Operation Iraqi Freedom, are
compensated as fully as possible for
their wounds.
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Paperwork Reduction Act
This document contains no provisions
constituting a collection of information
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501–3521).
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,
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 proposed rule have
been examined and it has been
determined to be a significant regulatory
action under Executive Order 12866.
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 proposed rule would have no
such effect on State, local, and tribal
governments, or on the private sector.
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, 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.
Catalog of Federal Domestic Assistance
Numbers and Titles
Executive Order 12866—Regulatory
Planning and Review
Executive Order 12866 directs
agencies to assess all costs and benefits
of available regulatory alternatives and,
Approved: November 16, 2007.
Gordon H. Mansfield,
Acting Secretary of Veterans Affairs.
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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.
List of Subjects in 38 CFR Part 4
Disability benefits, Pensions,
Veterans.
For the reasons set out in the
preamble, 38 CFR part 4, subpart B, is
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431
proposed to be amended as set forth
below:
PART 4—SCHEDULE FOR RATING
DISABILITIES
Subpart B—Disability Ratings
1. The authority citation for part 4
continues to read as follows:
Authority: 38 U.S.C. 1155, unless
otherwise noted.
2. Section 4.118 is amended by:
a. Adding an introductory paragraph
to § 4.118.
b. Revising the heading to diagnostic
code 7800 and adding new notes (4) and
(5).
c. Revising diagnostic codes 7801,
7802, 7804, and 7805.
d. Removing diagnostic code 7803.
The additions and revisions read as
follows:
§ 4.118
Schedule of ratings—skin.
A veteran who VA rated under
diagnostic codes 7800, 7801, 7802,
7803, 7804, or 7805, before [date 30
days after date of publication of the
final rule in the Federal Register], can
request review under diagnostic code
7800, 7801, 7802, 7804, and 7805,
irrespective of whether his or her
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 code
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 [date 30
days after date of publication of the
final rule in the Federal Register].
Rating
7800 Burn scar(s); scar(s) 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
§ 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic
code.
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Federal Register / Vol. 73, No. 2 / Thursday, January 3, 2008 / Proposed Rules
mstockstill on PROD1PC66 with PROPOSALS
Rating
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 greater
Area or areas of at least 72
square inches (465 sq. cm.)
but less than 144 square
inches (929 sq. cm.) ................
Area or areas of at least 12
square inches (77 sq. cm.) but
less than 72 square inches
(465 sq. cm.) ............................
Area or areas of at least 6
square inches (39 sq. cm.) 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 scars are
present, or if a single scar affects more than one extremity,
assign a separate evaluation
for each affected extremity,
based on the total area of the
qualifying scars that affect that
extremity, and assign a separate evaluation for the trunk, if
affected, based on the total
area of the qualifying scars of
the trunk. Combine the separate evaluations under § 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 greater
Note (1): A superficial scar is
one not associated with underlying soft tissue damage.
Note (2): If multiple superficial
scars are present, assign a
separate evaluation for each
affected extremity, based on
the total area of the superficial
scars of that extremity, and assign a separate evaluation for
the trunk, if affected, based on
the total area of the superficial
scars of the trunk. Combine
the separate evaluations under
§ 4.25.
7804 Scar(s), unstable or painful:
Five or more scars that are unstable or painful .......................
Three or four scars that are unstable or painful .......................
VerDate Aug<31>2005
20:03 Jan 02, 2008
Jkt 214001
40
30
20
10
Rating
One or two scars that are unstable or painful ............................
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.
*
*
*
*
10
*
[FR Doc. E7–25525 Filed 1–2–08; 8:45 am]
BILLING CODE 8320–01–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 4
RIN 2900–AM75
Schedule for Rating Disabilities;
Evaluation of Residuals of Traumatic
Brain Injury (TBI)
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
SUMMARY: This document proposes to
amend the Department of Veterans
Affairs (VA) Schedule for Rating
10 Disabilities by revising that portion of
the Schedule that addresses
neurological conditions and convulsive
disorders, in order to provide detailed
and updated criteria for evaluating
residuals of traumatic brain injury (TBI).
DATES: Comments must be received on
or before February 4, 2008.
ADDRESSES: Written comments may be
submitted through https://
www.Regulations.gov; by mail or handdelivery to the Director, Regulations
Management (00REG), Department of
Veterans Affairs, 810 Vermont Ave.,
NW., Room 1068, Washington, DC
20420; or by fax to (202) 273–9026.
30 Comments should indicate that they are
submitted in response to RIN 2900–
20 AM75—‘‘Schedule for Rating
PO 00000
Frm 00020
Fmt 4702
Sfmt 4702
Disabilities; Evaluation of Residuals of
Traumatic Brain Injury (TBI).’’ 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
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 https://
www.Regulations.gov.
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: This
document proposes to amend the
Department of Veterans Affairs (VA)
Schedule for Rating Disabilities (38 CFR
part 4) by revising the material under
diagnostic code 8045, Brain disease due
to trauma, in 38 CFR 4.124a
(neurological conditions and convulsive
disorders). TBI has been called a
signature injury of the conflict in Iraq,
and VA is seeing a statistically larger
number of veterans of the Iraq and
Afghanistan conflicts with residuals of
TBI than has been seen in previous
conflicts. In addition, the effects of
injuries stemming from blasts resulting
from roadside explosions of improvised
explosive devices, which have been
common sources of injury in these
conflicts, appear to be somewhat
different from the effects of brain trauma
seen from other sources of injury. VA
proposes to amend the criteria for rating
residuals of TBI to update them in light
of current knowledge of the condition.
We propose changing the title of
diagnostic code 8045 from ‘‘Brain
disease due to trauma’’ to ‘‘Residuals of
traumatic brain injury (TBI),’’ which
reflects modern terminology for this
condition.
TBI is an injury to the brain from an
external force that results in immediate
effects such as loss or alteration of
consciousness, amnesia, and sometimes
neurological impairments. These
abnormalities may all be transient, but
more prolonged or even permanent
problems with a wide range of
impairment in such areas as physical,
mental, and emotional/behavioral
functioning may occur. TBI is classified
as mild, moderate, or severe at, or close
to, the time of the original injury, and
while this classification will often
E:\FR\FM\03JAP1.SGM
03JAP1
]]>Agencies
[Federal Register Volume 73, Number 2 (Thursday, January 3, 2008)]
[Proposed Rules]
[Pages 428-432]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-25525]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AM55
Schedule for Rating Disabilities; Evaluation of Scars
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document proposes to amend 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: Comments must be received on or before February 4, 2008.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to the Director,
Regulations Management (00REG), 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-AM55 ``Schedule for Rating Disabilities; Evaluation of
Scars.'' 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 a.m. and 4:30 p.m. Monday through Friday
(except holidays). Please call (202) 461-4902 for an appointment. (This
is not a toll-free number.) In addition, during the comment period,
comments may be viewed online through the Federal Docket Management
System (FDMS) at www.Regulations.gov.
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: This document proposes to amend the
Department of Veterans Affairs (VA) Schedule for Rating Disabilities
(38 CFR part 4) by revising the portions of Sec. 4.118, the Skin, that
address scars. A prior proposed rulemaking addressing the evaluation of
scars was published in the Federal Register (67 FR 65915) on October
29, 2002, but it was subsequently withdrawn as VA determined that the
proposed amendments did not accomplish the stated purpose or intended
effect. The
[[Page 429]]
withdrawal was published at 71 FR 78391 on December 29, 2006.
Scars resulting from burns potentially involve a wide range of
locations, extent and severity. This rule would clarify that VA's
diagnostic codes and means for evaluating scars, set forth under Sec.
4.118, also encompass burn scars by incorporating ``burn scars'' into
the title of the diagnostic codes most appropriate for evaluating them.
At the same time, it would revise diagnostic codes 7800, 7801, 7802,
7804, and 7805, and remove diagnostic code 7803, to update and clarify
the rating schedule.
Diagnostic Code 7800
Diagnostic code 7800 addresses disfigurement of the head, face, or
neck, and provides criteria for evaluation based on eight possible
characteristics of disfigurement and the extent of any gross distortion
or asymmetry of facial features. We propose to change the title of
diagnostic code 7800 from ``Disfigurement of the head, face, or neck''
to ``Burn scar(s); scar(s) due to other causes; or other disfigurement
of the head, face, or neck'' to more clearly indicate that scarring,
including burn scarring, may be the cause of disfigurement.
There are currently three notes under diagnostic code 7800, and we
propose to add two more. New note 4 directs that 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, be evaluated under the
appropriate diagnostic code(s) and combined under Sec. 4.25. This note
would provide clear guidance to raters for assessing disability other
than disfigurement that is related to scars of the head, face, and
neck.
We propose to add new note 5 to explain that the number of
characteristics of disfigurement required to reach a particular
evaluation level need not be present in a single scar in order to
assign that level. The purpose of this proposed change is to ensure
clarity in the method of application of the eight characteristics of
disfigurement.
Diagnostic Code 7801
We propose to change the title of diagnostic code 7801 from
``Scars, other than head, face, or neck, that are deep or that cause
limited motion'' to ``Burn scar(s) or scar(s) due to other causes, not
of the head, face, or neck, that are deep and nonlinear.'' First, this
change indicates that this is the appropriate diagnostic code for the
evaluation of burn scars that are deep, as well as for nonburn scars
that are deep. Second, the addition of ``that are nonlinear'' further
clarifies what types of scars require evaluation under this diagnostic
code. Because evaluation under diagnostic code 7801 is based on the
surface area of scar(s), with the minimum compensable level requiring
an area of at least 6 square inches (39 square centimeters), linear
scars, which may have considerable length but only minimal width, could
virtually never reach even the minimum evaluation under this diagnostic
code. Therefore, it is not an appropriate diagnostic code to use for
their evaluation. Linear scars, which would include, for example, most
surgical scars, would be evaluated under diagnostic code 7804, as well
as 7805, if applicable.
Third, the removal of reference to scars that limit motion reflects
other changes proposed by this rule. Currently a scar that limits
motion is assigned a rating under diagnostic code 7801, but the rating
is based solely on the area of the scar and thus may not accurately
reflect the degree of limitation of motion. As proposed by this rule,
diagnostic code 7805 would make clear that veterans may receive a
rating for the limitation of motion, or other functional effects of
scars, under the diagnostic codes specifically governing such effects
on the relevant body part, and that such a rating may be assigned in
addition to any rating under diagnostic code 7801 or 7802 based on the
area of the scar. We believe this practice would more accurately
reflect the true level of disability where a scar limits motion.
Accordingly, there is no need to refer to limitation of motion in
diagnostic code 7801.
The evaluation criteria for diagnostic code 7801 are based on the
area(s) of scars that fall under this diagnostic code and are
currently: Area or areas exceeding 144 square inches (929 sq. cm.) for
40 percent, area or areas exceeding 72 square inches (465 sq. cm.) for
30 percent, area or areas exceeding 12 square inches (77 sq. cm.) for
20 percent, and area or areas exceeding 6 square inches (39 sq. cm.)
for 10 percent. We propose to make a nonsubstantive change to these
evaluation criteria to eliminate any possible confusion in the current
criteria and to provide clear guidance on evaluating scars that fall
between the sizes indicated at various percentage levels, for example a
scar that exceeds 72 square inches but does not reach 144 square inches
in area. This amendment would change the criteria to: Area or areas of
at least 6 square inches (39 sq. cm.) but less than 12 square inches
(77 sq. cm.) for 10 percent, area or areas of at least 12 square inches
(77 sq. cm.) but less than 72 square inches (465 sq. cm.) for 20
percent, area or areas of at least 72 square inches (465 sq. cm.) but
less than 144 square inches (929 sq. cm.) for 30 percent, and area or
areas of 144 square inches (929 sq. cm.) or greater for 40 percent.
We propose to redesignate current Note (2) as Note (1). We propose
to revise current Note (1) under diagnostic code 7801 (which is
renumbered as note (2)) to make clearer the guidance on evaluating
multiple scars under this diagnostic code and to assure that it
reflects current policy. The current note says: ``Scars in widely
separated areas, as on two or more extremities or on anterior and
posterior surfaces of extremities or trunk, will be separately rated
and combined in accordance with Sec. 4.25 of this part.'' We propose
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 of that extremity, and assign a
separate evaluation for the trunk, if affected, based on the total area
of the qualifying scars of the trunk. Note (2) would also direct that
the separate evaluations be combined under Sec. 4.25. Qualifying scars
are deep scars that are not located on the head, face, or neck.
Multiple scars on different parts of the body (i.e, each extremity
and the trunk), such as a scar on each arm or separate scars on the
right leg and torso, would be evaluated separately based on the surface
area of the scar located on each affected body part. Similarly,
multiple scars on one part of the body, such as two scars on the right
arm, would be evaluated based on the surface area of the scars on that
part of the body. In this manner, a veteran with two scars on one arm
would receive a single rating but a veteran with one scar on each arm
would receive two ratings, but both evaluations would reflect the area
of the scar(s). We recognize that a veteran with one affected body part
may be compensated at a slightly lower rate than a veteran with two
affected body parts, depending on the size of the areas of scarring.
However, this difference reflects the somewhat greater difficulty in
obtaining and maintaining employment that is caused by two scars that
are not located near each other as compared to two scars proximate to
each other.
Note (2), as revised, would also acknowledge that a scar may run
into two separate areas (for example a scar of the trunk that runs
across the shoulder onto the left arm). This one scar would be treated
as two separate scars to ensure that the ratings reflect the effects
[[Page 430]]
on distinct areas of the body. For example, we would separately
evaluate the surface area of the portion of the scar located on the
extremity and the surface area of the portion of the scar located on
the trunk, and then combine those ratings under 38 CFR 4.25.
This revised note would remove any possible ambiguity regarding the
appropriate rating for a scar that affects the trunk and one or more
extremities, a scar that affects two or more extremities, and multiple
scars. In addition, it would clarify that each extremity and the trunk
represent the only body areas for which we may assign ratings. In other
words, it would clarify the possible ambiguity present in the current
regulation as to whether these areas of the body are merely examples of
scarred body parts eligible for a disability rating.
Further, although the current note addresses the anterior and
posterior surfaces of the trunk as widely separated areas, we propose
that the trunk be considered as a single area. This would ensure that
the area of all deep scars of the trunk are taken into account in the
evaluation. Scars of the trunk of considerable area may extend from one
surface of the trunk to another, crossing the sides of the trunk, and
as such the anterior and posterior surfaces of the trunk are not widely
separate areas. Under this note 2, a maximum of 40 percent
could be assigned for each of the five areas, including the trunk. This
proposed note is clearer and easier to apply than the current note,
represents an accurate view of our current policy, and provides
appropriate levels of evaluation for these types of scars.
Diagnostic Code 7802
We propose to change the title of this diagnostic code from
``Scars, other than head, face, or neck, that are superficial and that
do not cause limited motion'' to ``Burn scar(s) or scar(s) due to other
causes, not of the head, face, or neck, that are superficial and
nonlinear.'' As with diagnostic code 7801, we propose to add burn
scar(s) to the title to indicate that this is the appropriate
diagnostic code for the evaluation of superficial burn scars and other
superficial scars that are nonlinear. As under diagnostic code 7801,
evaluation under diagnostic code 7802 is based on area, and it is
therefore not an appropriate diagnostic code for the evaluation of
linear scars.
We propose to revise Note (1) in a similar manner to the revision
of Note (1) under diagnostic code 7801, in order to make the guidance
on evaluating multiple scars under this diagnostic code clearer and to
ensure that it reflects current policy.
Diagnostic Codes 7803 and 7804
Diagnostic code 7803 is now titled ``Scars, superficial,
unstable,'' and provides a single evaluation level of 10 percent for
such scars. It also includes two notes, one defining an unstable scar
and the other defining a superficial scar.
Diagnostic code 7804 is now titled ``Scars, superficial, painful on
examination'' and provides a single evaluation level of 10 percent for
such scars.
We propose deleting diagnostic code 7803 and amending diagnostic
code 7804 so that it will govern the evaluation of both unstable and
painful scars. Because a deep scar can also be unstable, painful, or
both, we propose removing ``superficial'' from the title of diagnostic
code 7804, so that it will apply to both deep and superficial scars.
The new title of diagnostic code 7804 would be: ``Scar(s), unstable or
painful''. We propose removing the ``on examination'' language in the
new title because VA's disability ratings are based on relevant medical
evidence; as such, to include ``on examination'' in the title is
redundant.
We propose providing evaluation criteria that encompass both
unstable and painful scars and apply to one or more scars. We propose
assigning a 10 percent evaluation if there are one or two scars that
are unstable or painful, a 20 percent evaluation if there are three or
four scars that are unstable or painful, and a 30 percent evaluation if
there are five or more scars that are unstable or painful. Furthermore,
we propose adding a note 2 explaining that if one or more
scars are both unstable and painful, 10 percent will be added to the
evaluation based on the total number of unstable or painful scars. The
existing criteria provide no specific guidance on evaluating multiple
painful or unstable scars, and we propose providing new criteria that
reflect our policies concerning the evaluation of multiple superficial
scars that are unstable, painful, or both. In our judgment, these
criteria are equitable, in that if five painful scars are present on a
single extremity, for example, they would receive the same evaluation
(30 percent) as would five painful scars, if one were on each
extremity, and one on the trunk. Unlike the physical effects of a deep
or superficial scar, which may be limited to a particular part of the
body, pain tends to affect the person as a whole; therefore, in cases
of multiple scars, this diagnostic code does not distinguish scars
based on where they are located but rather considers their cumulative
effect.
Finally, we propose adding note 3, which indicates that
scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may
also receive an evaluation under diagnostic code 7804, when applicable.
This would clarify which types of scars may be evaluated under
diagnostic code 7804 as well as under another diagnostic code.
We propose deleting note 1 to diagnostic code 7804, which
defines a superficial scar, because we propose to make this diagnostic
code applicable to both deep and superficial scars, and there will
therefore no longer be a need to define a superficial scar under this
diagnostic code. We propose replacing it with new note 1,
which defines an unstable scar (using the same definition as in Note
(1) under current diagnostic code 7803).
We also propose deleting Note (2) to diagnostic code 7804,
concerning the evaluation of a scar on the tip of a finger or toe. The
note is unnecessary because a scar on the tip of a finger or toe is
evaluated under the same criteria as any other scar. In other words, a
fingertip is part of the arm extremity and a toe is part of the leg
extremity. We propose replacing that note with new note 2,
discussed above.
Diagnostic Code 7805
Current diagnostic code 7805 has been most commonly used to
evaluate well-healed, asymptomatic, linear surgical or wound scars.
This diagnostic code includes a direction to rate on limitation of
function of affected part. We propose revising the provision in order
to clarify its intended applicability, but substantively it continues
to serve the same purpose.
We propose that diagnostic code 7805 now be titled, ``Scars, other
(including linear scars) and other effects of scars evaluated under
Diagnostic Codes 7800, 7801, 7802, and 7804'', in order to emphasize
that a single scar may receive, for example, a rating under both
diagnostic codes 7801 and 7805. The purpose of the rating under
diagnostic code 7805 is to ensure that we evaluate the disabling
effects of a scar other than those reflected in an evaluation under the
criteria set forth in diagnostic codes 7800-04. Most often, this
diagnostic code is used to evaluate healed scars that are linear, are
not tender or unstable, and are not of head, face, or neck, but may
cause functional limitation to the affected body part, for example, a
healed appendectomy scar or a scar related to gall bladder removal. An
evaluation under this diagnostic code would therefore consist of a
[[Page 431]]
hyphenated diagnostic code, with diagnostic code 7805 being the
primary, and the affected body part being secondary, with the rating
percentage based on the body part.
Applicability Date
VA proposes to make the provisions of this rule applicable to all
applications for benefits received by VA on or after the effective date
of this rule. A veteran who VA rated under diagnostic codes 7800, 7801,
7802, 7803, 7804, or 7805 of Sec. 4.118, as in effect prior to the
effective date of this rule, will be permitted to request review under
these clarified criteria, irrespective of whether his or her disability
has worsened since the last review. VA would review that veteran's
disability rating to determine whether the veteran may be entitled to a
higher disability rating under the provisions established by this
rulemaking. The effective date of any award of an increase in
disability compensation based on the clarifications in this rule would
not be earlier than the effective date of the new criteria, but will
otherwise be assigned under the current regulations regarding effective
dates for increases in disability compensation, 38 CFR 3.400, etc. We
propose adding this provision in the regulation to ensure veterans are
fully notified of the availability of the review.
We propose establishing this process for veterans potentially
affected by this rulemaking in order to ensure that veterans,
especially those wounded during Operation Enduring Freedom or Operation
Iraqi Freedom, are compensated as fully as possible for their wounds.
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-
3521).
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, 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.
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, 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 proposed rule have been examined and it has been
determined to be a significant regulatory action under Executive Order
12866.
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 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.
List of Subjects in 38 CFR Part 4
Disability benefits, Pensions, Veterans.
Approved: November 16, 2007.
Gordon H. Mansfield,
Acting Secretary of Veterans Affairs.
For the reasons set out in the preamble, 38 CFR part 4, subpart B,
is proposed to be amended as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
Subpart B--Disability Ratings
1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155, unless otherwise noted.
2. Section 4.118 is amended by:
a. Adding an introductory paragraph to Sec. 4.118.
b. Revising the heading to diagnostic code 7800 and adding new
notes (4) and (5).
c. Revising diagnostic codes 7801, 7802, 7804, and 7805.
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 [date 30 days after date of publication of
the final rule in the Federal Register], can request review under
diagnostic code 7800, 7801, 7802, 7804, and 7805, irrespective of
whether his or her 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
code 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 [date 30 days after date of publication of the
final rule in the Federal Register].
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
7800 Burn scar(s); scar(s) 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.................................
[[Page 432]]
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 greater. 40
Area or areas of at least 72 square inches (465 sq. cm.) but 30
less than 144 square inches (929 sq. cm.)..................
Area or areas of at least 12 square inches (77 sq. cm.) but 20
less than 72 square inches (465 sq. cm.)...................
Area or areas of at least 6 square inches (39 sq. cm.) but 10
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 scars are present, or if a single scar
affects more than one extremity, assign a separate
evaluation for each affected extremity, based on the total
area of the qualifying scars that affect that extremity,
and assign a separate evaluation for the trunk, if
affected, based on the total area of the qualifying scars
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 greater. 10
Note (1): A superficial scar is one not associated with
underlying soft tissue damage..............................
Note (2): If multiple superficial scars are present, assign
a separate evaluation for each affected extremity, based on
the total area of the superficial scars of that extremity,
and assign a separate evaluation for the trunk, if
affected, based on the total area of the superficial scars
of the trunk. Combine the separate evaluations under Sec.
4.25.......................................................
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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[FR Doc. E7-25525 Filed 1-2-08; 8:45 am]
BILLING CODE 8320-01-P
