Schedule for Rating Disabilities; Evaluation of Scars, 428-432 [E7-25525]

Download as PDF mstockstill on PROD1PC66 with PROPOSALS 428 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 securities market if— (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 national securities exchange that is officially recognized, sanctioned, or supervised by a governmental authority. (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 VerDate Aug<31>2005 20:03 Jan 02, 2008 Jkt 214001 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 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\03JAP1.SGM 03JAP1 Federal Register / Vol. 73, No. 2 / Thursday, January 3, 2008 / Proposed Rules 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. mstockstill on PROD1PC66 with PROPOSALS 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 VerDate Aug<31>2005 18:10 Jan 02, 2008 Jkt 214001 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 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 429 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 E:\FR\FM\03JAP1.SGM 03JAP1 430 Federal Register / Vol. 73, No. 2 / Thursday, January 3, 2008 / Proposed Rules mstockstill on PROD1PC66 with PROPOSALS 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 VerDate Aug<31>2005 18:10 Jan 02, 2008 Jkt 214001 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 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 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 E:\FR\FM\03JAP1.SGM 03JAP1 Federal Register / Vol. 73, No. 2 / Thursday, January 3, 2008 / Proposed Rules 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. mstockstill on PROD1PC66 with PROPOSALS 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. VerDate Aug<31>2005 20:03 Jan 02, 2008 Jkt 214001 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 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 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. E:\FR\FM\03JAP1.SGM 03JAP1 432 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

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[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]


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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: Proposed rule.

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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].

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                                                                  Rating
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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