Schedule for Rating Disabilities; Dental and Oral Conditions, 36080-36086 [2017-16132]

Download as PDF 36080 Federal Register / Vol. 82, No. 148 / Thursday, August 3, 2017 / Rules and Regulations Paragraph 5000 Class D Airspace. * * * * * AGL WI D Mosinee, WI [Amended] Central Wisconsin Airport, WI (Lat. 44°46′39″ N., long. 89°40′00″ W.) That airspace extending upward from the surface to and including 3,800 feet MSL within a 4.5-mile radius of Central Wisconsin Airport. This Class D airspace area is effective during the specific dates and times established in advance by Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement. Paragraph 6002 Class E Airspace Designated as Surface Areas. * * * * * AGL WI E2 Mosinee, WI [Amended] Central Wisconsin Airport, WI (Lat. 44°46′39″ N., long. 89°40′00″ W.) That airspace extending upward from the surface within a 4.5-mile radius of Central Wisconsin Airport. This Class E airspace area is effective during the specific dates and times established in advance by Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement. Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. * * * * * AGL WI E5 Mosinee, WI [Amended] Central Wisconsin Airport, WI (Lat. 44°46′39″ N., long. 89°40′00″ W.) Wausau VORTAC (Lat. 44°50′48″ N., long. 89°35′12″ W.) That airspace extending upward from 700 feet above the surface within a 7-mile radius of the Central Wisconsin Airport, and within 3.3 miles each side of the 350° bearing from the airport extending from the 7-mile radius to 12.3 miles north of the airport. Issued in Fort Worth, Texas on July 27, 2017. Walter Tweedy, Acting Manager, Operations Support Group, ATO Central Service Center. [FR Doc. 2017–16284 Filed 8–2–17; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 4 pmangrum on DSK3GDR082PROD with RULES RIN 2900–AP08 Schedule for Rating Disabilities; Dental and Oral Conditions Department of Veterans Affairs. Final rule. AGENCY: ACTION: This document amends the Department of Veterans Affairs (VA) Schedule for Rating Disabilities by revising the portion of the schedule that SUMMARY: VerDate Sep<11>2014 13:28 Aug 02, 2017 Jkt 241001 addresses dental and oral conditions. The effect of this action is to ensure that the rating schedule uses current medical terminology and to provide detailed and updated criteria for evaluation of dental and oral conditions for disability rating purposes. DATES: This final rule is effective on September 10, 2017. FOR FURTHER INFORMATION CONTACT: Ioulia Vvedenskaya, M.D., M.B.A., Medical Officer, Part 4 VASRD Regulations Staff (211C), Compensation Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461–9700 (This is not a toll-free telephone number). SUPPLEMENTARY INFORMATION: VA published a proposed rulemaking in the Federal Register at 80 FR 44913 on July 28, 2015, to amend the portion of the VA Schedule of Rating Disabilities (VASRD or rating schedule) dealing with dental and oral conditions. VA provided a 60-day public comment period and interested persons were invited to submit written comments on or before September 28, 2015. VA received 5 comments. One commenter suggested further defining the description of mandibular and maxillary malunion and maxillary non-union based on the degree of open bite under diagnostic codes 9904 and 9916. However, the severity of mandibular and maxillary displacement and its effect on anterior or posterior open bite depend on an individual’s functional anatomy. Therefore, different veterans with the same degree of displacement would present with different degrees of open bite. A qualified dental provider such as a dentist or oral surgeon would appropriately determine the degree of severity in each individual case. Further, rather than basing the severity of open bite on a range of numerical values, it is standard practice for such dental providers to assess the degree of severity as severe, moderate, mild, or not causing open bite. Additionally, the commenter suggested defining moderate and severe anterior or posterior open bite and mild anterior or posterior open bite. Similarly, due to the variances between individuals’ facial anatomy, it would be improper to use exact numerical values to determine the degree of moderate and severe anterior or posterior open bite and mild anterior or posterior open bite. A qualified dental provider would appropriately measure and record these findings. Therefore, VA makes no changes based on these comments. PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 The same commenter had a question about why only a 20 percent rating is warranted for severe anterior or posterior open bite due to mandibular malunion and a 30 percent rating is warranted for severe anterior or posterior open bite due to maxillary malunion, while moderate anterior or posterior open bite warrants 10 percent ratings for both conditions. These variations in disability compensation are based on the differences in functional impairment due to maxillary and mandibular fractures. Unlike mandibular fracture and its residuals, maxillary fracture presents a more challenging case for repair and rehabilitation. For example, unlike mandibular fractures, maxillary fractures often communicate with sinuses and/or combine with orbital fractures. Such fractures are predisposed to contamination, sinus infection, and obstruction. Even after following treatment guidelines, significant bony resorption may occur leading to cosmetic contour deformity. Further, although such residuals of maxillary fracture raise the potential for pyramiding, such a situation is addressed by the new note (2) to § 4.150, which directs raters to separately evaluate other impairments under the appropriate diagnostic code. Therefore, the functional impairment due to maxillary fracture significantly differs from mandibular fractures. VA took these functional anatomy differences and the resultant differences in functional impairment into consideration during the revision process. Additionally, the commenter noted that mandibular malunion and maxillary malunion and non-union do not have the same choices of severity of anterior or posterior open bite. Once more, these differences are based on differences in the functional anatomy of maxillas and mandibles and standard clinical assessments by a qualified dental provider. Therefore, VA makes no changes based on these comments. Multiple commenters asked for additional guidance in assessing interincisal measurements of maximum unassisted vertical opening under diagnostic code 9905. One commenter stated that guidance was needed on how to handle measurements that fall between the specific numbers. Another commenter suggested adding the phrase ‘‘or less’’ to the whole numbers listed in the proposed rule or using a range of numbers, such as from 21 to 29 millimeters. VA applied a standard scale for the measurement of interincisal ranges, vertical and lateral, based on the Guidelines to the Evaluation of E:\FR\FM\03AUR1.SGM 03AUR1 pmangrum on DSK3GDR082PROD with RULES Federal Register / Vol. 82, No. 148 / Thursday, August 3, 2017 / Rules and Regulations Impairment of the Oral and Maxillofacial Region by the American Association of Oral and Maxillofacial Surgeons. Guidelines to the Evaluation of Impairment of the Oral and Maxillofacial Region, American Association of Oral and Maxillofacial Surgeons can be found at http:// www.astmjs.org/impairment.html. VA agrees that for the sake of clarity, a full range of maximum unassisted vertical opening should be included and makes appropriate edits to diagnostic code 9905. One commenter stated that VA should address bruxism and its relationship to temporomandibular joint disorder in a note to diagnostic code 9905. Specifically, the commenter stated that VA’s treatment of bruxism as only a secondary condition and not a stand alone disability is problematic with regards to claims for dental treatment. The commenter recommended amending 38 CFR 3.381 to clarify the treatment of bruxism in regards to service connection for dental treatment or to add to diagnostic code 9905 the phrase ‘‘with or without bruxism.’’ The commenter also recommended rating bruxism as a stand alone issue. However, bruxism is considered a symptom of craniomandibular disorders, of which temporomandibular disorders are a subset; other symptoms of craniomandibular disorders include anxiety, stress, and other mental disorders (Shetty, Shilpa et al., Bruxism: A Literature Review, J Indian Prosthodont Soc. 2010 Sep; 10(3): 141– 148., https://www.ncbi.nlm.nih.gov/ pmc/articles/PMC3081266/). Therefore, it is not appropriate to place bruxism as a separate diagnosis or a symptom under diagnostic code 9905. VA has determined that only secondary service connection for treatment purposes is warranted for this condition, both because it is only a secondary condition, not a primary condition, and because its symptoms are already contemplated by the underlying condition for which the veteran is being compensated. Thus, it does not require a separate diagnostic code, and VA makes no changes based on this comment. One commenter had a question about why diagnostic codes 9901, 9908, 9909, 9913, 9914, and 9915 were missing from the discussion. VA did not propose any changes to these diagnostic codes. According to the Federal Register Document Drafting Handbook Rule 1.14, this was noted by inserting asterisks in place of unchanged diagnostic codes. Therefore, VA makes no changes based on this comment. The same commenter proposed to rate maxillary and mandibular malunion VerDate Sep<11>2014 13:28 Aug 02, 2017 Jkt 241001 and non-union exactly the same way, regardless of which bone is affected. However, the functional impairment due to mandibular malunion and nonunion significantly differs from maxillary malunion and non-union. VA took these differences in functional anatomy and the resultant differences in functional impairment into consideration during the revision process. Therefore, VA makes no changes based on this comment. One commenter was supportive of the overall changes and additions to this section of the rating schedule. However, the commenter stated that a serviceconnected noncompensable rating for a dental disability inappropriately restricts the ability of a recently discharged veteran whose eligibility for outpatient dental services is based on 38 CFR 17.161(b) [Class II] to receive appropriate dental services and appliances. To illustrate, the commenter stated that the dental rating schedule provides for a diagnosis of ‘‘loss of teeth, replaceable by prosthesis’’ with diagnostic code 9913. Because the schedule considers this to be a noncompenable disability, the veteran is limited to receiving one-time treatment for this condition under 38 CFR 17.161(b). The commenter described why this is not a suitable clinical response for the veteran, especially over the veteran’s life-time. Specifically, the commenter stated that the provision of dentures has historically been, and continues to be, VA’s treatment response for this condition, even though (1) modern dentistry, as practiced in the community, goes beyond this, offering partial dentures, implants, bridges, crowns, and other prostheses, and (2) the use of dentures may be inappropriate and more harmful to the future dental health of the veteran (e.g., where their use, to address a lost tooth, requires the removal of other healthy teeth to fit them). Moreover, this commenter stated that limiting this veteran to one-time treatment for this condition is outdated and a disservice to the veteran, further noting that, even were these newer treatment options available to this cohort, the one-time limitation would still be unreasonable because these newer options typically require replacement after several years. The commenter believes all of these problems would be remedied by either ensuring that this dental condition (diagnostic code 9913) is changed to reflect a compensable rating for veterans who experience complications of treatment, such as inability to load the prosthesis, diminished vocal projection, chronic pain, or peri-implantitis. In the PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 36081 alternative, this particular dental condition/diagnosis could be excepted from the one-time treatment limitation under § 17.161(b). Lastly, this commenter suggested adding a general note under 38 CFR 4.150 to allow for analogous compensable ratings for any dental disabilities service-connected (or treated as service-connected under 38 U.S.C. 1151) which require ongoing treatment. Veterans with a service-connected compensable dental condition are eligible for any outpatient dental treatment indicated as reasonably necessary to maintain oral health and masticatory function, with no time limits for making application for treatment and no restrictions as to the number of repeat episodes of treatment under 38 CFR 17.161(a). In addition, other veteran-cohorts are eligible for outpatient dental treatment as specified in § 17.161. Under § 17.161(b) [Class II], a veteran’s eligibility for the one-time correction of a service-connected noncompensable dental condition is available to certain veterans who have been recently discharged or released from active service, if specified requirements, including timely filing of the dental application, are met. (No rating action is needed for Class II applicants if the conditions set forth in 38 CFR 17.162 are met). While we appreciate the arguments raised by the commenter and his advocacy efforts on behalf of the members of his organization, this rulemaking does not seek to revise diagnostic code 9913, as it applies to the loss of teeth, replaceable by prosthesis. As such, these comments go beyond the scope of this rulemaking, which is focused on other codes in the dental rating schedule. Further, a veteran’s Class II eligibility for outpatient dental services and applicances is not based on the level of functional impairment for which the Veteran is compensated under 38 CFR part 4. Ratings provided for service-connected conditions under 38 CFR part 4 serve solely to compensate veterans for functional impairment resulting from diseases and injuries and any residuals. In addition, VA has determined that the dental conditions contemplated by § 17.161(b) do not, in general, result in functional impairment. Indeed, VA experts recently carefully considered this very issue as part of an independent undertaking, but they concluded that while such a change would serve a great convenience to affected veterans, no clinical justification exists to change the non-compensable designation given to conditions under diagnostic code 9913, to include loss of teeth, replaceable by E:\FR\FM\03AUR1.SGM 03AUR1 pmangrum on DSK3GDR082PROD with RULES 36082 Federal Register / Vol. 82, No. 148 / Thursday, August 3, 2017 / Rules and Regulations prosthesis. Moreover, the commenter’s broader suggested amendments to VA’s outpatient treatment dental regulations likewise go beyond the scope of this immediate rulemaking, which again is focused on limited components of the dental rating schedule. Finally, we note that the eligibility criteria set forth in § 17.161(b) are based in law, 38 U.S.C. 1712(a)(1)(B), (b), and so cannot be changed via rulemaking. As a result of all these factors, no changes to VA’s outpatient dental regulations are made in response to this commenter’s comments related to diagnostic code 9913. The same commenter was supportive of the overall changes and additions to diagnostic codes 9904 and 9916. However, the commenter was concerned about inter-examiner and inter-rater reliability due to the descriptors of open bite, noting that vague descriptors could result in under-evaluation or pyramiding. As discussed above, due to the variances between individuals’ facial anatomy, it would be improper to use exact numerical values to determine the degree of moderate and severe anterior or posterior open bite and mild anterior or posterior open bite. Further, the potential for pyramiding is addressed by the new note (2) to § 4.150, which directs raters to separately evaluate other impairments under the appropriate diagnostic code. Additionally, VA took differences in functional anatomy of maxillas and mandibles into consideration during the revision process. Therefore, VA makes no changes based on this comment. One commenter urged VA to include periodontal disease as a compensable condition and amend 38 CFR 3.381 accordingly. The commenter stated that periodontal disease has been linked to diabetes as well as other conditions, and veterans who have service-connected diabetes as a result of herbicide exposure are not able to receive dental treatment unless their overall disability rating is 100 percent. The commenter stated that assigning a compensable disability rating for periodontal disease or providing for a compensable rating as a secondary disability associated with service-connected diabetes would alleviate the lack of treatment issue for veterans. As noted previously, the ratings under 38 CFR part 4 serve to compensate for functional impairment. VA has determined that periodontal disease does not result in loss of earning capacity resulting from functional impairment, so no changes have been made to make this condition compensable. Therefore, VA makes no changes based on these comments. VerDate Sep<11>2014 13:28 Aug 02, 2017 Jkt 241001 VA is correcting typographical errors under DC 9905 and DC 9916. With respect to DC 9905, in the proposed rulemaking notice, for the 50 percent evaluation, VA referred to mechanically altered food instead of mechanically altered foods. With respect to DC 9916, in the explanatory note for disability rating personnel, VA failed to include the phrase ‘‘following treatment’’ between ‘‘maxilla fragments’’ and the parenthetical. VA is correcting these errors in this final rule. VA appreciates the comments submitted in response to the proposed rulemaking notice. Based on the rationale stated in the proposed rulemaking notice and in this document, the final rule is adopted with the changes noted. Effective Date of Final Rule Veterans Benefits Administration (VBA) personnel utilize the Veterans Benefit Management System for Rating (VBMS–R) to process disability compensation claims that involve disability evaluations made under the VASRD. In order to ensure that there is no delay in processing veterans’ claims, VA must coordinate the effective date of this final rule with corresponding VBMS–R system updates. As such, this final rule will apply effective September 10, 2017, the date VBMS–R system updates related to this final rule will be complete. Executive Orders 12866 and 13563 Executive Orders 12866 and 13563 direct agencies to assess the 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 effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a ‘‘significant regulatory action,’’ requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as ‘‘any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 (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 this Executive Order.’’ The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA’s impact analysis can be found as a supporting document at http:// www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of this rulemaking and its impact analysis are available on VA’s Web site at http:// www.va.gov/orpm/, by following the link for ‘‘VA Regulations Published From FY 2004 Through Fiscal Year to Date.’’ Regulatory Flexibility Act The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601–612. This final rule will not affect any small entities. Only certain VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. 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 one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector. Paperwork Reduction Act This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521). Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.009, Veterans Medical Care Benefits; E:\FR\FM\03AUR1.SGM 03AUR1 36083 Federal Register / Vol. 82, No. 148 / Thursday, August 3, 2017 / Rules and Regulations Dated: July 27, 2017. Michael Shores, Director, Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. 64.104, Pension for Non-ServiceConnected Disability for Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service Connected Death. Subpart B—Disability Ratings 1. The authority citation for part 4 continues to read as follows: 2. Amend § 4.150 by: a. Adding Notes 1 and 2 at the beginning of the table; ■ b. Revising the entries for diagnostic codes 9900 and 9902 through 9905; ■ c. Removing the entries for diagnostic codes 9906 and 9907; ■ d. Revising the entry for diagnostic code 9911; ■ e. Removing entry for diagnostic code 9912; ■ f. Revising the entry for diagnostic code 9916; and ■ g. Adding, in numerical order, entries for diagnostic codes 9917 and 9918. The revisions and additions read as follows: Authority: 38 U.S.C. 1155, unless otherwise noted. § 4.150 Schedule of ratings—dental and oral conditions. List of Subjects in 38 CFR Part 4 Signing Authority Disability benefits, Pensions, Veterans. The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on July 21, 2017, for publication. For the reasons set out in the preamble, VA amends 38 CFR part 4 as follows: PART 4—SCHEDULE FOR RATING DISABILITIES ■ ■ ■ Rating pmangrum on DSK3GDR082PROD with RULES Note (1): For VA compensation purposes, diagnostic imaging studies include, but are not limited to, conventional radiography (X-ray), computed tomography (CT), magnetic resonance imaging (MRI), positron emission tomography (PET), radionuclide bone scanning, or ultrasonography. Note (2): Separately evaluate loss of vocal articulation, loss of smell, loss of taste, neurological impairment, respiratory dysfunction, and other impairments under the appropriate diagnostic code and combine under § 4.25 for each separately rated condition. 9900 Maxilla or mandible, chronic osteomyelitis, osteonecrosis or osteoradionecrosis of: Rate as osteomyelitis, chronic under diagnostic code 5000. * * * * * * 9902 Mandible, loss of, including ramus, unilaterally or bilaterally: Loss of one-half or more, Involving temporomandibular articulation. Not replaceable by prosthesis ........................................................................................................................................ Replaceable by prosthesis ............................................................................................................................................. Not involving temporomandibular articulation. Not replaceable by prosthesis ........................................................................................................................................ Replaceable by prosthesis ............................................................................................................................................. Loss of less than one-half, Involving temporomandibular articulation. Not replaceable by prosthesis ........................................................................................................................................ Replaceable by prosthesis ............................................................................................................................................. Not involving temporomandibular articulation. Not replaceable by prosthesis ........................................................................................................................................ Replaceable by prosthesis ............................................................................................................................................. 9903 Mandible, nonunion of, confirmed by diagnostic imaging studies: Severe, with false motion ............................................................................................................................................................. Moderate, without false motion .................................................................................................................................................... 9904 Mandible, malunion of: Displacement, causing severe anterior or posterior open bite .................................................................................................... Displacement, causing moderate anterior or posterior open bite ................................................................................................ Displacement, not causing anterior or posterior open bite .......................................................................................................... 9905 Temporomandibular disorder (TMD): Interincisal range: 0 to 10 millimeters (mm) of maximum unassisted vertical opening. With dietary restrictions to all mechanically altered foods ............................................................................................. Without dietary restrictions to mechanically altered foods ............................................................................................ 11 to 20 mm of maximum unassisted vertical opening. With dietary restrictions to all mechanically altered foods ............................................................................................. Without dietary restrictions to mechanically altered foods ............................................................................................ 21 to 29 mm of maximum unassisted vertical opening. With dietary restrictions to full liquid and pureed foods ................................................................................................. With dietary restrictions to soft and semi-solid foods .................................................................................................... Without dietary restrictions to mechanically altered foods ............................................................................................ 30 to 34 mm of maximum unassisted vertical opening. With dietary restrictions to full liquid and pureed foods ................................................................................................. With dietary restrictions to soft and semi-solid foods .................................................................................................... Without dietary restrictions to mechanically altered foods ............................................................................................ VerDate Sep<11>2014 13:28 Aug 02, 2017 Jkt 241001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1 * 70 50 40 30 70 50 20 10 30 10 20 10 0 50 40 40 30 40 30 20 30 20 10 36084 Federal Register / Vol. 82, No. 148 / Thursday, August 3, 2017 / Rules and Regulations Rating Lateral excursion range of motion: 0 to 4 mm ....................................................................................................................................................................... Note (1): Ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. Note (2): For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. Note (3): For VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. 10 * * * * * * Hard palate, loss of: Loss of half or more, not replaceable by prosthesis ..................................................................................................... Loss of less than half, not replaceable by prosthesis ................................................................................................... Loss of half or more, replaceable by prosthesis ............................................................................................................ Loss of less than half, replaceable by prosthesis .......................................................................................................... * * * * * * * 9916 Maxilla, malunion or nonunion of: Nonunion, With false motion ................................................................................................................................................................... Without false motion .............................................................................................................................................................. Malunion, With displacement, causing severe anterior or posterior open bite ..................................................................................... With displacement, causing moderate anterior or posterior open bite ................................................................................. With displacement, causing mild anterior or posterior open bite .......................................................................................... Note: For VA compensation purposes, the severity of maxillary nonunion is dependent upon the degree of abnormal mobility of maxilla fragments following treatment (i.e., presence or absence of false motion), and maxillary nonunion must be confirmed by diagnostic imaging studies. 9917 Neoplasm, hard and soft tissue, benign: Rate as loss of supporting structures (bone or teeth) and/or functional impairment due to scarring. 9918 Neoplasm, hard and soft tissue, malignant ............................................................................................................................. Note: A rating of 100 percent shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals such as loss of supporting structures (bone or teeth) and/or functional impairment due to scarring. * 9911 3. Amend appendix A to part 4 by: a. Revising the entries for diagnostic codes 9900, 9902, and 9903; ■ b. Adding, in numerical order, an entry for diagnostic code 9904; ■ c. Revising the entry for diagnostic code 9905; ■ ■ Sec. d. Adding, in numerical order, entries for diagnostic codes 9906, 9907, 9911, and 9912; ■ e. Revising the entry for diagnostic code 9916; and ■ f. Adding, in numerical order, entries for diagnostic codes 9917 and 9918. ■ 30 20 10 0 30 10 30 10 0 100 The revisions and additions read as follows: Appendix A to Part 4—Table of Amendments and Effective Dates Since 1946 Diagnostic Code No. * 9900 * * * * Criterion September 22, 1978; criterion February 17, 1994; title September 10, 2017. * * 9902 9903 9904 9905 9906 9907 * * * * * Criterion February 17, 1994; evaluation September 10, 2017; title September 10, 2017. Criterion February 17, 1994; evaluation September 10, 2017; title September 10, 2017. Criterion September 10, 2017. Criterion September 22, 1978; evaluation February 17, 1994; evaluation September 10, 2017; title September 10, 2017. Removed September 10, 2017. Removed September 10, 2017. * pmangrum on DSK3GDR082PROD with RULES * * 9911 9912 * * Criterion and title September 10, 2017. Removed September 10, 2017. * * * * * 9916 9917 9918 * * * Added February 17, 1994; criterion September 10, 2017. Added September 10, 2017. Added September 10, 2017. * * VerDate Sep<11>2014 13:28 Aug 02, 2017 Jkt 241001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1 * 36085 Federal Register / Vol. 82, No. 148 / Thursday, August 3, 2017 / Rules and Regulations 4. Amend appendix B to part 4 by: ■ a. Revising the entries for diagnostic codes 9900, 9902, 9903, and 9905; ■ b. Removing the entries for diagnostic codes 9906 and 9907; ■ c. Revising the entry for diagnostic code 9911; ■ d. Removing the entry for diagnostic code 9912; and ■ e. Adding, in numerical order, entries for diagnostic codes 9917 and 9918. ■ The revisions and additions read as follows: Appendix B to Part 4—Numerical Index of Disabilities Diagnostic Code No. * * * * * * * Dental and Oral Conditions 9900 ............... Maxilla or mandible, chronic osteomyelitis, osteonecrosis, or osteoradionecrosis of. * 9902 ............... 9903 ............... * * * Mandible loss of, including ramus, unilaterally or bilaterally. Mandible, nonunion of, confirmed by diagnostic imaging studies. * * * * 9905 ............... * * Temporomandibular disorder (TMD). * * * * * 9911 ............... * Hard palate, loss of. * * * * * 9917 ............... 9918 ............... * * Neoplasm, hard and soft tissue, benign. Neoplasm, hard and soft tissue, malignant. * * * * * 5. Amend appendix C to part 4 as follows: ■ a. Under the entry for ‘‘Limitation of motion,’’ remove the entry for ‘‘Temporomandibular articulation’’ and add in its place an entry for ‘‘Temporomandibular’’; ■ b. Under the entry for ‘‘Loss of,’’ add in alphabetical order an entry for ‘‘Palate, hard’’; ■ c. Revise the entry for ‘‘Mandible’’; ■ d. Add in alphabetical order an entry for ‘‘Maxilla or mandible, chronic osteomyelitis, osteonecrosis, or osteoradionecrosis of’’; ■ e. Remove the entries for ‘‘Palate, hard’’ and ‘‘Ramus’’ located below the entry for ‘‘Nose, part of, or scars’’ and above the entry for ‘‘Skull, part of’’; ■ f. Under the entry for ‘‘Neoplasms,’’ under both ‘‘Benign’’ and ‘‘Malignant,’’ add in alphabetical order an entry for ‘‘Hard and soft tissue’’; ■ g. Under the entry for ‘‘Nonunion,’’ remove the entry for ‘‘Mandible’’ and add in its place an entry for ‘‘Mandible, confirmed by diagnostic imaging studies’’; ■ h. Remove the entry for ‘‘Osteomyelitis maxilla or mandible’’. The additions and revisions read as follows: ■ Appendix C to Part 4—Alphabetical Index of Disabilities Diagnostic Code No. * Limitation of motion: * * * * * * * * * * * Temporomandibular ...................................................................................................................................................................... * * * * * * * * 9905 * Loss of: pmangrum on DSK3GDR082PROD with RULES * * * * * * Palate, hard .................................................................................................................................................................................. * * * *. Mandible: Including ramus, unilaterally or bilaterally .................................................................................................................................... * * * * * * * Maxilla or mandible, chronic osteomyelitis, osteonecrosis, or osteoradionecrosis of ................................................................. * * Neoplasms: Benign: * * * * * * * * * * * Hard and soft tissue .............................................................................................................................................................. VerDate Sep<11>2014 13:28 Aug 02, 2017 Jkt 241001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1 9911 9902 9900 * * 9917 36086 Federal Register / Vol. 82, No. 148 / Thursday, August 3, 2017 / Rules and Regulations Diagnostic Code No. * Malignant: * * * * * * * * * * * * Hard and soft tissue .............................................................................................................................................................. * * * * * * * Nonunion: Mandible, confirmed by diagnostic imaging studies ..................................................................................................................... * * * * BILLING CODE 8320–01–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA–HQ–OPP–2015–0676; FRL–9961–69] A. Does this action apply to me? Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: This regulation establishes tolerances for residues of ethaboxam in or on Ginseng; Pepper/eggplant, subgroup 8–10B; Vegetable, cucurbit, group 9; and Vegetable, tuberous and corm, subgroup 1C. Valent USA Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective August 3, 2017. Objections and requests for hearings must be received on or before October 2, 2017, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION). SUMMARY: The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2015–0676, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460–0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the OPP Docket is (703) 305–5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets. pmangrum on DSK3GDR082PROD with RULES 13:28 Aug 02, 2017 Jkt 241001 Mike Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address: RDFRNotices@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information Ethaboxam; Pesticide Tolerances VerDate Sep<11>2014 * FOR FURTHER INFORMATION CONTACT: [FR Doc. 2017–16132 Filed 8–2–17; 8:45 am] ADDRESSES: * You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). B. How can I get electronic access to other related information? You may access a frequently updated electronic version of EPA’s tolerance regulations at 40 CFR part 180 through the Government Printing Office’s e-CFR site at http://www.ecfr.gov/cgi-bin/textidx?&c=ecfr&tpl=/ecfrbrowse/Title40/ 40tab_02.tpl C. How can I file an objection or hearing request? Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ– PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 * 9918 9903 * OPP–2015–0676 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 2, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b). In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP– 2015–0676, by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute. • Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/ DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001. • Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http:// www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/ dockets. II. Summary of Petitioned-For Tolerance In the Federal Register of April 25, 2016 (81 FR 24044) (FRL–9944–86), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F8383) by Valent USA Corporation, 1600 Riviera Avenue, E:\FR\FM\03AUR1.SGM 03AUR1

Agencies

[Federal Register Volume 82, Number 148 (Thursday, August 3, 2017)]
[Rules and Regulations]
[Pages 36080-36086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-16132]


=======================================================================
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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AP08


Schedule for Rating Disabilities; Dental and Oral Conditions

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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

SUMMARY: This document amends the Department of Veterans Affairs (VA) 
Schedule for Rating Disabilities by revising the portion of the 
schedule that addresses dental and oral conditions. The effect of this 
action is to ensure that the rating schedule uses current medical 
terminology and to provide detailed and updated criteria for evaluation 
of dental and oral conditions for disability rating purposes.

DATES: This final rule is effective on September 10, 2017.

FOR FURTHER INFORMATION CONTACT: Ioulia Vvedenskaya, M.D., M.B.A., 
Medical Officer, Part 4 VASRD Regulations Staff (211C), Compensation 
Service, Veterans Benefits Administration, Department of Veterans 
Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9700 
(This is not a toll-free telephone number).

SUPPLEMENTARY INFORMATION: VA published a proposed rulemaking in the 
Federal Register at 80 FR 44913 on July 28, 2015, to amend the portion 
of the VA Schedule of Rating Disabilities (VASRD or rating schedule) 
dealing with dental and oral conditions. VA provided a 60-day public 
comment period and interested persons were invited to submit written 
comments on or before September 28, 2015. VA received 5 comments.
    One commenter suggested further defining the description of 
mandibular and maxillary malunion and maxillary non-union based on the 
degree of open bite under diagnostic codes 9904 and 9916. However, the 
severity of mandibular and maxillary displacement and its effect on 
anterior or posterior open bite depend on an individual's functional 
anatomy. Therefore, different veterans with the same degree of 
displacement would present with different degrees of open bite. A 
qualified dental provider such as a dentist or oral surgeon would 
appropriately determine the degree of severity in each individual case. 
Further, rather than basing the severity of open bite on a range of 
numerical values, it is standard practice for such dental providers to 
assess the degree of severity as severe, moderate, mild, or not causing 
open bite.
    Additionally, the commenter suggested defining moderate and severe 
anterior or posterior open bite and mild anterior or posterior open 
bite. Similarly, due to the variances between individuals' facial 
anatomy, it would be improper to use exact numerical values to 
determine the degree of moderate and severe anterior or posterior open 
bite and mild anterior or posterior open bite. A qualified dental 
provider would appropriately measure and record these findings. 
Therefore, VA makes no changes based on these comments.
    The same commenter had a question about why only a 20 percent 
rating is warranted for severe anterior or posterior open bite due to 
mandibular malunion and a 30 percent rating is warranted for severe 
anterior or posterior open bite due to maxillary malunion, while 
moderate anterior or posterior open bite warrants 10 percent ratings 
for both conditions. These variations in disability compensation are 
based on the differences in functional impairment due to maxillary and 
mandibular fractures. Unlike mandibular fracture and its residuals, 
maxillary fracture presents a more challenging case for repair and 
rehabilitation. For example, unlike mandibular fractures, maxillary 
fractures often communicate with sinuses and/or combine with orbital 
fractures. Such fractures are predisposed to contamination, sinus 
infection, and obstruction. Even after following treatment guidelines, 
significant bony resorption may occur leading to cosmetic contour 
deformity. Further, although such residuals of maxillary fracture raise 
the potential for pyramiding, such a situation is addressed by the new 
note (2) to Sec.  4.150, which directs raters to separately evaluate 
other impairments under the appropriate diagnostic code. Therefore, the 
functional impairment due to maxillary fracture significantly differs 
from mandibular fractures. VA took these functional anatomy differences 
and the resultant differences in functional impairment into 
consideration during the revision process.
    Additionally, the commenter noted that mandibular malunion and 
maxillary malunion and non-union do not have the same choices of 
severity of anterior or posterior open bite. Once more, these 
differences are based on differences in the functional anatomy of 
maxillas and mandibles and standard clinical assessments by a qualified 
dental provider. Therefore, VA makes no changes based on these 
comments.
    Multiple commenters asked for additional guidance in assessing 
interincisal measurements of maximum unassisted vertical opening under 
diagnostic code 9905. One commenter stated that guidance was needed on 
how to handle measurements that fall between the specific numbers. 
Another commenter suggested adding the phrase ``or less'' to the whole 
numbers listed in the proposed rule or using a range of numbers, such 
as from 21 to 29 millimeters. VA applied a standard scale for the 
measurement of interincisal ranges, vertical and lateral, based on the 
Guidelines to the Evaluation of

[[Page 36081]]

Impairment of the Oral and Maxillofacial Region by the American 
Association of Oral and Maxillofacial Surgeons. Guidelines to the 
Evaluation of Impairment of the Oral and Maxillofacial Region, American 
Association of Oral and Maxillofacial Surgeons can be found at http://www.astmjs.org/impairment.html. VA agrees that for the sake of clarity, 
a full range of maximum unassisted vertical opening should be included 
and makes appropriate edits to diagnostic code 9905.
    One commenter stated that VA should address bruxism and its 
relationship to temporomandibular joint disorder in a note to 
diagnostic code 9905. Specifically, the commenter stated that VA's 
treatment of bruxism as only a secondary condition and not a stand 
alone disability is problematic with regards to claims for dental 
treatment. The commenter recommended amending 38 CFR 3.381 to clarify 
the treatment of bruxism in regards to service connection for dental 
treatment or to add to diagnostic code 9905 the phrase ``with or 
without bruxism.'' The commenter also recommended rating bruxism as a 
stand alone issue. However, bruxism is considered a symptom of 
craniomandibular disorders, of which temporomandibular disorders are a 
subset; other symptoms of craniomandibular disorders include anxiety, 
stress, and other mental disorders (Shetty, Shilpa et al., Bruxism: A 
Literature Review, J Indian Prosthodont Soc. 2010 Sep; 10(3): 141-148., 
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3081266/). Therefore, it 
is not appropriate to place bruxism as a separate diagnosis or a 
symptom under diagnostic code 9905. VA has determined that only 
secondary service connection for treatment purposes is warranted for 
this condition, both because it is only a secondary condition, not a 
primary condition, and because its symptoms are already contemplated by 
the underlying condition for which the veteran is being compensated. 
Thus, it does not require a separate diagnostic code, and VA makes no 
changes based on this comment.
    One commenter had a question about why diagnostic codes 9901, 9908, 
9909, 9913, 9914, and 9915 were missing from the discussion. VA did not 
propose any changes to these diagnostic codes. According to the Federal 
Register Document Drafting Handbook Rule 1.14, this was noted by 
inserting asterisks in place of unchanged diagnostic codes. Therefore, 
VA makes no changes based on this comment.
    The same commenter proposed to rate maxillary and mandibular 
malunion and non-union exactly the same way, regardless of which bone 
is affected. However, the functional impairment due to mandibular 
malunion and non-union significantly differs from maxillary malunion 
and non-union. VA took these differences in functional anatomy and the 
resultant differences in functional impairment into consideration 
during the revision process. Therefore, VA makes no changes based on 
this comment.
    One commenter was supportive of the overall changes and additions 
to this section of the rating schedule. However, the commenter stated 
that a service-connected noncompensable rating for a dental disability 
inappropriately restricts the ability of a recently discharged veteran 
whose eligibility for outpatient dental services is based on 38 CFR 
17.161(b) [Class II] to receive appropriate dental services and 
appliances. To illustrate, the commenter stated that the dental rating 
schedule provides for a diagnosis of ``loss of teeth, replaceable by 
prosthesis'' with diagnostic code 9913. Because the schedule considers 
this to be a noncompenable disability, the veteran is limited to 
receiving one-time treatment for this condition under 38 CFR 17.161(b). 
The commenter described why this is not a suitable clinical response 
for the veteran, especially over the veteran's life-time. Specifically, 
the commenter stated that the provision of dentures has historically 
been, and continues to be, VA's treatment response for this condition, 
even though (1) modern dentistry, as practiced in the community, goes 
beyond this, offering partial dentures, implants, bridges, crowns, and 
other prostheses, and (2) the use of dentures may be inappropriate and 
more harmful to the future dental health of the veteran (e.g., where 
their use, to address a lost tooth, requires the removal of other 
healthy teeth to fit them). Moreover, this commenter stated that 
limiting this veteran to one-time treatment for this condition is 
outdated and a disservice to the veteran, further noting that, even 
were these newer treatment options available to this cohort, the one-
time limitation would still be unreasonable because these newer options 
typically require replacement after several years. The commenter 
believes all of these problems would be remedied by either ensuring 
that this dental condition (diagnostic code 9913) is changed to reflect 
a compensable rating for veterans who experience complications of 
treatment, such as inability to load the prosthesis, diminished vocal 
projection, chronic pain, or peri-implantitis. In the alternative, this 
particular dental condition/diagnosis could be excepted from the one-
time treatment limitation under Sec.  17.161(b). Lastly, this commenter 
suggested adding a general note under 38 CFR 4.150 to allow for 
analogous compensable ratings for any dental disabilities service-
connected (or treated as service-connected under 38 U.S.C. 1151) which 
require ongoing treatment.
    Veterans with a service-connected compensable dental condition are 
eligible for any outpatient dental treatment indicated as reasonably 
necessary to maintain oral health and masticatory function, with no 
time limits for making application for treatment and no restrictions as 
to the number of repeat episodes of treatment under 38 CFR 17.161(a). 
In addition, other veteran-cohorts are eligible for outpatient dental 
treatment as specified in Sec.  17.161. Under Sec.  17.161(b) [Class 
II], a veteran's eligibility for the one-time correction of a service-
connected noncompensable dental condition is available to certain 
veterans who have been recently discharged or released from active 
service, if specified requirements, including timely filing of the 
dental application, are met. (No rating action is needed for Class II 
applicants if the conditions set forth in 38 CFR 17.162 are met).
    While we appreciate the arguments raised by the commenter and his 
advocacy efforts on behalf of the members of his organization, this 
rulemaking does not seek to revise diagnostic code 9913, as it applies 
to the loss of teeth, replaceable by prosthesis. As such, these 
comments go beyond the scope of this rulemaking, which is focused on 
other codes in the dental rating schedule. Further, a veteran's Class 
II eligibility for outpatient dental services and applicances is not 
based on the level of functional impairment for which the Veteran is 
compensated under 38 CFR part 4. Ratings provided for service-connected 
conditions under 38 CFR part 4 serve solely to compensate veterans for 
functional impairment resulting from diseases and injuries and any 
residuals. In addition, VA has determined that the dental conditions 
contemplated by Sec.  17.161(b) do not, in general, result in 
functional impairment. Indeed, VA experts recently carefully considered 
this very issue as part of an independent undertaking, but they 
concluded that while such a change would serve a great convenience to 
affected veterans, no clinical justification exists to change the non-
compensable designation given to conditions under diagnostic code 9913, 
to include loss of teeth, replaceable by

[[Page 36082]]

prosthesis. Moreover, the commenter's broader suggested amendments to 
VA's outpatient treatment dental regulations likewise go beyond the 
scope of this immediate rulemaking, which again is focused on limited 
components of the dental rating schedule. Finally, we note that the 
eligibility criteria set forth in Sec.  17.161(b) are based in law, 38 
U.S.C. 1712(a)(1)(B), (b), and so cannot be changed via rulemaking. As 
a result of all these factors, no changes to VA's outpatient dental 
regulations are made in response to this commenter's comments related 
to diagnostic code 9913.
    The same commenter was supportive of the overall changes and 
additions to diagnostic codes 9904 and 9916. However, the commenter was 
concerned about inter-examiner and inter-rater reliability due to the 
descriptors of open bite, noting that vague descriptors could result in 
under-evaluation or pyramiding. As discussed above, due to the 
variances between individuals' facial anatomy, it would be improper to 
use exact numerical values to determine the degree of moderate and 
severe anterior or posterior open bite and mild anterior or posterior 
open bite. Further, the potential for pyramiding is addressed by the 
new note (2) to Sec.  4.150, which directs raters to separately 
evaluate other impairments under the appropriate diagnostic code. 
Additionally, VA took differences in functional anatomy of maxillas and 
mandibles into consideration during the revision process. Therefore, VA 
makes no changes based on this comment.
    One commenter urged VA to include periodontal disease as a 
compensable condition and amend 38 CFR 3.381 accordingly. The commenter 
stated that periodontal disease has been linked to diabetes as well as 
other conditions, and veterans who have service-connected diabetes as a 
result of herbicide exposure are not able to receive dental treatment 
unless their overall disability rating is 100 percent. The commenter 
stated that assigning a compensable disability rating for periodontal 
disease or providing for a compensable rating as a secondary disability 
associated with service-connected diabetes would alleviate the lack of 
treatment issue for veterans. As noted previously, the ratings under 38 
CFR part 4 serve to compensate for functional impairment. VA has 
determined that periodontal disease does not result in loss of earning 
capacity resulting from functional impairment, so no changes have been 
made to make this condition compensable. Therefore, VA makes no changes 
based on these comments.
    VA is correcting typographical errors under DC 9905 and DC 9916. 
With respect to DC 9905, in the proposed rulemaking notice, for the 50 
percent evaluation, VA referred to mechanically altered food instead of 
mechanically altered foods. With respect to DC 9916, in the explanatory 
note for disability rating personnel, VA failed to include the phrase 
``following treatment'' between ``maxilla fragments'' and the 
parenthetical. VA is correcting these errors in this final rule.
    VA appreciates the comments submitted in response to the proposed 
rulemaking notice. Based on the rationale stated in the proposed 
rulemaking notice and in this document, the final rule is adopted with 
the changes noted.

Effective Date of Final Rule

    Veterans Benefits Administration (VBA) personnel utilize the 
Veterans Benefit Management System for Rating (VBMS-R) to process 
disability compensation claims that involve disability evaluations made 
under the VASRD. In order to ensure that there is no delay in 
processing veterans' claims, VA must coordinate the effective date of 
this final rule with corresponding VBMS-R system updates. As such, this 
final rule will apply effective September 10, 2017, the date VBMS-R 
system updates related to this final rule will be complete.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
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 effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' requiring review by the Office of 
Management and Budget (OMB), unless OMB waives such review, as ``any 
regulatory action that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) Materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) Raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined, and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866. VA's impact analysis can be found as a supporting document 
at http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of this 
rulemaking and its impact analysis are available on VA's Web site at 
http://www.va.gov/orpm/, by following the link for ``VA Regulations 
Published From FY 2004 Through Fiscal Year to Date.''

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule will not affect any small entities. Only certain 
VA beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this rulemaking is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

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 one year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.009, Veterans Medical 
Care Benefits;

[[Page 36083]]

64.104, Pension for Non-Service-Connected Disability for Veterans; 
64.109, Veterans Compensation for Service-Connected Disability; and 
64.110, Veterans Dependency and Indemnity Compensation for Service 
Connected Death.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on July 21, 2017, for publication.

    Dated: July 27, 2017.
Michael Shores,
Director, Regulation Policy & Management, Office of the Secretary, 
Department of Veterans Affairs.

List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

    For the reasons set out in the preamble, VA amends 38 CFR part 4 as 
follows:

PART 4--SCHEDULE FOR RATING DISABILITIES

0
1. The authority citation for part 4 continues to read as follows:

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

Subpart B--Disability Ratings

0
2. Amend Sec.  4.150 by:
0
a. Adding Notes 1 and 2 at the beginning of the table;
0
b. Revising the entries for diagnostic codes 9900 and 9902 through 
9905;
0
c. Removing the entries for diagnostic codes 9906 and 9907;
0
d. Revising the entry for diagnostic code 9911;
0
e. Removing entry for diagnostic code 9912;
0
f. Revising the entry for diagnostic code 9916; and
0
g. Adding, in numerical order, entries for diagnostic codes 9917 and 
9918.
    The revisions and additions read as follows:


Sec.  4.150  Schedule of ratings--dental and oral conditions.

------------------------------------------------------------------------
                                                              Rating
------------------------------------------------------------------------
Note (1): For VA compensation purposes, diagnostic
 imaging studies include, but are not limited to,
 conventional radiography (X-ray), computed tomography
 (CT), magnetic resonance imaging (MRI), positron
 emission tomography (PET), radionuclide bone scanning,
 or ultrasonography.....................................
Note (2): Separately evaluate loss of vocal
 articulation, loss of smell, loss of taste,
 neurological impairment, respiratory dysfunction, and
 other impairments under the appropriate diagnostic code
 and combine under Sec.   4.25 for each separately rated
 condition..............................................
9900 Maxilla or mandible, chronic osteomyelitis,
 osteonecrosis or osteoradionecrosis of:
    Rate as osteomyelitis, chronic under diagnostic code
     5000.
 
                              * * * * * * *
9902 Mandible, loss of, including ramus, unilaterally or
 bilaterally:
    Loss of one-half or more,
        Involving temporomandibular articulation........
            Not replaceable by prosthesis...............              70
            Replaceable by prosthesis...................              50
        Not involving temporomandibular articulation.
            Not replaceable by prosthesis...............              40
            Replaceable by prosthesis...................              30
    Loss of less than one-half,
        Involving temporomandibular articulation.
            Not replaceable by prosthesis...............              70
            Replaceable by prosthesis...................              50
        Not involving temporomandibular articulation.
            Not replaceable by prosthesis...............              20
            Replaceable by prosthesis...................              10
9903 Mandible, nonunion of, confirmed by diagnostic
 imaging studies:
    Severe, with false motion...........................              30
    Moderate, without false motion......................              10
9904 Mandible, malunion of:
    Displacement, causing severe anterior or posterior                20
     open bite..........................................
    Displacement, causing moderate anterior or posterior              10
     open bite..........................................
    Displacement, not causing anterior or posterior open               0
     bite...............................................
9905 Temporomandibular disorder (TMD):
    Interincisal range:
        0 to 10 millimeters (mm) of maximum unassisted
         vertical opening.
            With dietary restrictions to all                          50
             mechanically altered foods.................
            Without dietary restrictions to mechanically              40
             altered foods..............................
        11 to 20 mm of maximum unassisted vertical
         opening.
            With dietary restrictions to all                          40
             mechanically altered foods.................
            Without dietary restrictions to mechanically              30
             altered foods..............................
        21 to 29 mm of maximum unassisted vertical
         opening.
            With dietary restrictions to full liquid and              40
             pureed foods...............................
            With dietary restrictions to soft and semi-               30
             solid foods................................
            Without dietary restrictions to mechanically              20
             altered foods..............................
        30 to 34 mm of maximum unassisted vertical
         opening.
            With dietary restrictions to full liquid and              30
             pureed foods...............................
            With dietary restrictions to soft and semi-               20
             solid foods................................
            Without dietary restrictions to mechanically              10
             altered foods..............................

[[Page 36084]]

 
    Lateral excursion range of motion:
            0 to 4 mm...................................              10
Note (1): Ratings for limited interincisal movement
 shall not be combined with ratings for limited lateral
 excursion..............................................
Note (2): For VA compensation purposes, the normal
 maximum unassisted range of vertical jaw opening is
 from 35 to 50 mm.......................................
Note (3): For VA compensation purposes, mechanically
 altered foods are defined as altered by blending,
 chopping, grinding or mashing so that they are easy to
 chew and swallow. There are four levels of mechanically
 altered foods: full liquid, puree, soft, and semisolid
 foods. To warrant elevation based on mechanically
 altered foods, the use of texture-modified diets must
 be recorded or verified by a physician.................
 
                              * * * * * * *
9911 Hard palate, loss of:
            Loss of half or more, not replaceable by                  30
             prosthesis.................................
            Loss of less than half, not replaceable by                20
             prosthesis.................................
            Loss of half or more, replaceable by                      10
             prosthesis.................................
            Loss of less than half, replaceable by                     0
             prosthesis.................................
 
                              * * * * * * *
9916 Maxilla, malunion or nonunion of:
    Nonunion,
        With false motion...............................              30
        Without false motion............................              10
    Malunion,
        With displacement, causing severe anterior or                 30
         posterior open bite............................
        With displacement, causing moderate anterior or               10
         posterior open bite............................
        With displacement, causing mild anterior or                    0
         posterior open bite............................
Note: For VA compensation purposes, the severity of
 maxillary nonunion is dependent upon the degree of
 abnormal mobility of maxilla fragments following
 treatment (i.e., presence or absence of false motion),
 and maxillary nonunion must be confirmed by diagnostic
 imaging studies........................................
9917 Neoplasm, hard and soft tissue, benign:
    Rate as loss of supporting structures (bone or
     teeth) and/or functional impairment due to
     scarring.
9918 Neoplasm, hard and soft tissue, malignant..........             100
Note: A rating of 100 percent shall continue beyond the
 cessation of any surgical, radiation, antineoplastic
 chemotherapy or other therapeutic procedure. Six months
 after discontinuance of such treatment, the appropriate
 disability rating shall be determined by mandatory VA
 examination. Any change in evaluation based upon that
 or any subsequent examination shall be subject to the
 provisions of Sec.   3.105(e) of this chapter. If there
 has been no local recurrence or metastasis, rate on
 residuals such as loss of supporting structures (bone
 or teeth) and/or functional impairment due to scarring.
------------------------------------------------------------------------



0
3. Amend appendix A to part 4 by:
0
a. Revising the entries for diagnostic codes 9900, 9902, and 9903;
0
b. Adding, in numerical order, an entry for diagnostic code 9904;
0
c. Revising the entry for diagnostic code 9905;
0
d. Adding, in numerical order, entries for diagnostic codes 9906, 9907, 
9911, and 9912;
0
e. Revising the entry for diagnostic code 9916; and
0
f. Adding, in numerical order, entries for diagnostic codes 9917 and 
9918.
    The revisions and additions read as follows:

Appendix A to Part 4--Table of Amendments and Effective Dates Since 
1946

------------------------------------------------------------------------
                              Diagnostic
           Sec.                Code No.
------------------------------------------------------------------------
 
                              * * * * * * *
                                      9900  Criterion September 22,
                                             1978; criterion February
                                             17, 1994; title September
                                             10, 2017.
 
                              * * * * * * *
                                      9902  Criterion February 17, 1994;
                                             evaluation September 10,
                                             2017; title September 10,
                                             2017.
                                      9903  Criterion February 17, 1994;
                                             evaluation September 10,
                                             2017; title September 10,
                                             2017.
                                      9904  Criterion September 10,
                                             2017.
                                      9905  Criterion September 22,
                                             1978; evaluation February
                                             17, 1994; evaluation
                                             September 10, 2017; title
                                             September 10, 2017.
                                      9906  Removed September 10, 2017.
                                      9907  Removed September 10, 2017.
 
                              * * * * * * *
                                      9911  Criterion and title
                                             September 10, 2017.
                                      9912  Removed September 10, 2017.
 
                              * * * * * * *
                                      9916  Added February 17, 1994;
                                             criterion September 10,
                                             2017.
                                      9917  Added September 10, 2017.
                                      9918  Added September 10, 2017.
------------------------------------------------------------------------


[[Page 36085]]


0
4. Amend appendix B to part 4 by:
0
a. Revising the entries for diagnostic codes 9900, 9902, 9903, and 
9905;
0
b. Removing the entries for diagnostic codes 9906 and 9907;
0
c. Revising the entry for diagnostic code 9911;
0
d. Removing the entry for diagnostic code 9912; and
0
e. Adding, in numerical order, entries for diagnostic codes 9917 and 
9918.
    The revisions and additions read as follows:

Appendix B to Part 4--Numerical Index of Disabilities

------------------------------------------------------------------------
     Diagnostic Code No.
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
                       Dental and Oral Conditions
------------------------------------------------------------------------
9900.........................  Maxilla or mandible, chronic
                                osteomyelitis, osteonecrosis, or
                                osteoradionecrosis of.
 
                              * * * * * * *
9902.........................  Mandible loss of, including ramus,
                                unilaterally or bilaterally.
9903.........................  Mandible, nonunion of, confirmed by
                                diagnostic imaging studies.
 
                              * * * * * * *
9905.........................  Temporomandibular disorder (TMD).
 
                              * * * * * * *
9911.........................  Hard palate, loss of.
 
                              * * * * * * *
9917.........................  Neoplasm, hard and soft tissue, benign.
9918.........................  Neoplasm, hard and soft tissue,
                                malignant.
------------------------------------------------------------------------


0
5. Amend appendix C to part 4 as follows:
0
a. Under the entry for ``Limitation of motion,'' remove the entry for 
``Temporomandibular articulation'' and add in its place an entry for 
``Temporomandibular'';
0
b. Under the entry for ``Loss of,'' add in alphabetical order an entry 
for ``Palate, hard'';
0
c. Revise the entry for ``Mandible'';
0
d. Add in alphabetical order an entry for ``Maxilla or mandible, 
chronic osteomyelitis, osteonecrosis, or osteoradionecrosis of'';
0
e. Remove the entries for ``Palate, hard'' and ``Ramus'' located below 
the entry for ``Nose, part of, or scars'' and above the entry for 
``Skull, part of'';
0
f. Under the entry for ``Neoplasms,'' under both ``Benign'' and 
``Malignant,'' add in alphabetical order an entry for ``Hard and soft 
tissue'';
0
g. Under the entry for ``Nonunion,'' remove the entry for ``Mandible'' 
and add in its place an entry for ``Mandible, confirmed by diagnostic 
imaging studies'';
0
h. Remove the entry for ``Osteomyelitis maxilla or mandible''.
    The additions and revisions read as follows:

Appendix C to Part 4--Alphabetical Index of Disabilities

------------------------------------------------------------------------
                                                            Diagnostic
                                                             Code No.
------------------------------------------------------------------------
 
                              * * * * * * *
Limitation of motion:
 
                              * * * * * * *
    Temporomandibular...................................            9905
 
                              * * * * * * *
Loss of:
 
                              * * * * * * *
    Palate, hard........................................            9911
* * * *.................................................
Mandible:
    Including ramus, unilaterally or bilaterally........            9902
 
                              * * * * * * *
    Maxilla or mandible, chronic osteomyelitis,                     9900
     osteonecrosis, or osteoradionecrosis of............
 
                              * * * * * * *
Neoplasms:
    Benign:
 
                              * * * * * * *
        Hard and soft tissue............................            9917
 

[[Page 36086]]

 
                              * * * * * * *
    Malignant:
 
                              * * * * * * *
        Hard and soft tissue............................            9918
 
                              * * * * * * *
Nonunion:
    Mandible, confirmed by diagnostic imaging studies...            9903
 
                              * * * * * * *
------------------------------------------------------------------------

[FR Doc. 2017-16132 Filed 8-2-17; 8:45 am]
 BILLING CODE 8320-01-P