Schedule for Rating Disabilities: The Organs of Special Sense and Schedule of Ratings-Eye, 15316-15323 [2018-06928]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 83, Number 69 (Tuesday, April 10, 2018)]
[Rules and Regulations]
[Pages 15316-15323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06928]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AP14


Schedule for Rating Disabilities: The Organs of Special Sense and 
Schedule of Ratings--Eye

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is revising the 
portion of the VA Schedule for Rating Disabilities (VASRD or rating 
schedule) that addresses the organs of special sense and schedule of 
ratings--eye. The final rule incorporates medical advances that have 
occurred since the last review, updates current medical terminology, 
and provides clearer evaluation criteria.

DATES: This rule is effective on May 13, 2018.

FOR FURTHER INFORMATION CONTACT: Gary Reynolds, M.D., Medical Officer, 
Part 4 VASRD 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: On June 9, 2015, VA published a proposed 
rule in the Federal Register at 80 FR 32513, suggesting changes to 38 
CFR 4.77 through 4.79, the portion of the VASRD pertaining to the 
organs of special sense and schedule of ratings--eye. VA invited 
interested parties to submit comments on or before August 10, 2015. VA 
received five comments.

A. General Rating Formula for Eye Diseases

    VA proposed several revisions to the General Rating Formula for 
Diseases of the Eye, including a new definition of incapacitating 
episodes that used the number of clinic visits required to treat active 
eye disease as a means of quantifying the level of disability. VA also 
proposed to apply the formula to more diagnostic codes (DCs).
    Two comments regarding the proposed updates to the General Rating 
Formula, specifically regarding missing definitions, were received. One 
commenter asked for clarification of ``per year'' in regard to 
measuring the number of visits for medical treatment. VA appreciates 
the comment concerning how ``per year'' is defined, and will further 
clarify the relevant time period by substituting the phrase ``within 
the past twelve months'' for the phrase ``per year.'' The change of 
phrasing to ``within the past twelve months'' is consistent with VA's 
practice of assigning ``staged ratings'' where the evidence shows that 
different ratings are appropriate for distinct periods of time. See 
Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (citing Fenderson v. 
West, 12 Vet. App. 119, 126 (1999)). The same commenter asked why VA 
did not define ``active eye disease'' in the proposed rule. VA 
appreciates the comment, and for the reasons outlined below, will 
remove ``active eye disease'' as a term that requires definition.
    The majority of the comments regarding the proposed updates, 
however, concerned the revision to ``incapacitating episodes.'' Two 
commenters did not agree with using the number of clinic visits to 
quantify the severity of incapacitating episodes, noting that many 
conditions are

[[Page 15317]]

severely disabling even though they may not require frequent visits to 
a medical professional. We note that the rating schedule already 
provides for ratings based on impairment of visual acuity, as well as 
other disabling features such as disfigurement. This new general rating 
formula provides an alternative basis for evaluating impairment of 
earning capacity where a veteran's functioning might be minimally 
impaired but where the eye condition causes lost work time due to 
treatment. In addition, these two particular comments cite conditions 
which would be more appropriately evaluated under criteria other than 
the general rating formula, as the general rating formula as proposed 
was directed toward active eye diseases, not conditions where the 
severity of visual impairment or disfigurement is relatively static. 
Other commenters expressed concern that the definition only considered 
the frequency of episodes, not the severity of each episode or of the 
actual disability itself. Another comment questioned the effect of the 
proposed definition of incapacitating episodes for eye conditions, 
noting that the same term was defined differently when applied to other 
body systems within the rating schedule. One commenter stated the use 
of clinician visits disadvantaged veterans without readily available 
access to specialty care. The purpose of the proposed rule was to 
provide evaluations based on the duration of treatment for an active 
eye disease. Treatment for an active eye disease is generally available 
to veterans, whether through VA, VA-authorized community care, or care 
from providers completely independent of VA. Additionally, we note that 
current rating criteria define an incapacitating episode in terms of 
acute symptoms requiring treatment, so any concern arising out of 
access to care would apply equally to current regulations.
    After reviewing all of the comments pertaining to ``incapacitating 
episodes,'' and ``clinic visits,'' VA will further clarify how it will 
incorporate specified clinical visits to this body system. These visits 
are typically associated with time away from work (an earnings loss 
proxy) applicable to the definition of ``incapacitating episodes.'' See 
38 U.S.C. 1155, 38 CFR 4.1 (stating that the purpose of the rating 
schedule is to represent the average impairment in earning capacity 
resulting from diseases and injuries in civil occupations).
    The current definition for incapacitating episodes calls for acute 
symptoms that require prescribed bedrest and treatment by a provider. 
Evaluation is based on the total duration of incapacitating episodes. 
While prescribed bedrest may be an excellent proxy for earnings loss, 
modern medicine rarely, if ever, uses it for treatment.
    The definition for incapacitating episodes in the proposed rule 
sought to use more quantifiable measures than the current regulation. 
It called for active eye disease that required a visit to a provider 
for treatment, monitoring, or management of complications related to 
the active eye disease. VA would base the evaluation on the number of 
clinic visits within a one-year period. While clinic visits provide an 
easily quantifiable and consistent metric, the correlation between 
clinic visits and impairment in earning capacity may be strong or weak 
depending on the purpose of the visits.
    Based on the comments received, as well as the underlying intent 
for the changes in the proposed rule, VA believes that targeted 
modifications to the definition for ``incapacitating episodes'' and to 
the criteria in the General Rating Formula effectively address the 
concerns raised in the comments, as well as remain consistent with the 
intent of the proposed rule. First, VA will use Note (1) under the 
General Rating Formula to clarify that an incapacitating episode is 
``an eye condition severe enough to require a clinic visit to a 
provider specifically for treatment purposes.'' This definition 
distinguishes between treatment visits and visits for other purposes. 
Treatment visits can typically require two to three days away from work 
to allow for recovery from the treatment, in addition to the time 
needed for the treatment visit itself. In contrast, a clinic visit for 
diagnostic, monitoring, or screening purposes would only require time 
away from work for the visit itself. The criteria are specifically 
designed to account for situations when a Veteran can have relatively 
normal function, but has to take extensive time off work due to the 
treatment program. Therefore, counting only treatment visits as opposed 
to all clinic visits provides a better proxy for average impairment in 
earning capacity because it has a stronger correlation to the impact on 
the ability to work. We will move the list of treatment examples found 
in the second sentence to Note (1) of proposed Sec.  4.79 to Note (2) 
and renumber proposed Sec.  4.79 Note (2) as Note (3).
    The current criteria for the General Rating Formula base 
evaluations on the total number of days spent incapacitated within a 
12-month period. The criteria in the proposed rule, on the other hand, 
bases evaluations on the number of clinic visits for treatment or 
monitoring of an active eye disease within a year. As VA is changing 
the criteria in the final rule to count only those clinic visits made 
for the purpose of treatment, VA will modify the number of visits 
required for all evaluations. The criteria will now read: For the 60 
percent evaluation, ``With documented incapacitating episodes requiring 
7 or more treatment visits for an eye condition during the past 12 
months.'' The 40 percent evaluation will read, ``With documented 
incapacitating episodes requiring at least 5 but less than 7 treatment 
visits for an eye condition during the past 12 months.'' The 20 percent 
evaluation will read, ``With documented incapacitating episodes 
requiring at least 3 but less than 5 treatment visits for an eye 
condition during the past 12 months.'' Finally, the 10 percent 
evaluation will read, ``With documented incapacitating episodes 
requiring at least 1 but less than 3 treatment visits for an eye 
condition during the past 12 months.''

B. Organizational Changes

    VA proposed organizing most of the DCs within Sec.  4.79 under 
headings that reflected the part of the eye affected by ratable 
conditions. Two commenters supported these organizational changes. 
Other commenters recommended moving various diagnostic codes from one 
proposed category to another proposed category. VA thanks the 
commenters for their support and suggestions; however, VA has 
reconsidered this organizational change, noting that it would create 
more administrative complexity in rating by making it more difficult to 
locate the most appropriate DC for evaluation purposes. Therefore, VA 
is withdrawing the proposed organizational changes found in the 
proposed rule.

C. Application of Visual Impairment

    One commenter suggested that the definition of visual impairment 
should be revised to include multiple images, ghosting, halos, 
starbursts, sensitivity to light, ability to drive at night or 
participate in low-light activities, and read a computer screen without 
eyestrain and headaches. VA disagrees with this proposal, as the 
symptoms noted are almost always accompanied by measurable changes in 
visual acuity, visual field defects or muscle function, all of which 
form the basis of the current definition of visual impairment under 38 
CFR 4.75. If VA followed the commenter's suggestion, a Veteran could 
have a complete resolution of disability associated with visual acuity, 
visual fields, and/or muscle testing, but

[[Page 15318]]

still receive compensation for non-occupationally significant symptoms. 
Therefore, VA declines to make any changes based on this comment.
    The same commenter also suggested that VA provide a minimum 
evaluation of 50 percent when the symptoms in the proposed definition 
affected a normal lifestyle. Section 1155 of title 38, United States 
Code, requires VA to base disability ratings, as far as practicable, on 
the average impairments of earnings capacity in civil occupations 
resulting from such injuries, and not on disruptions to lifestyle. See 
also 38 CFR 4.1. For this reason, VA is unable to make any changes 
based upon this comment.
    Another commenter suggested that VA should not consider Goldmann 
charts and electronic medical records generated during treatment at a 
VA Blind Rehabilitation Center, VA eye clinic, or private provider when 
rating visual conditions, because such examinations are not created for 
VA rating purposes. The commenter stated that Goldmann charts at VA 
Blind Rehabilitation Centers are often marked as ``NOT FOR VA RATNG 
PURPOSES.'' However, electronic treatment records from a VA Blind 
Rehabilitation Center do not always include the notation. The commenter 
stated that Veterans may ``not want to risk a potential reduction in 
their VA disability rating'' if VA would use evidence generated by 
treatment for disability rating purposes. VA disagrees. Such marks on 
VA Blind Rehabilitation Center records indicate only that they were 
generated as part of a treatment program, not as a part of the VA 
disability claims process. The evidentiary standard has already been 
established in 38 CFR 4.77. If the VA Blind Rehabilitation examination 
or other eye examination meets the standard outlined in 38 CFR 4.77, 
then VA reserves the option to use the examination as evidence for 
rating purposes, consistent with the general legal requirement that VA 
consider all evidence of record. See 38 U.S.C. 5107(b), 38 CFR 
3.303(a). Further, we disagree with the commenter's premise that VA 
should deliberately ignore relevant medical evidence for rating 
purposes on the theory that evidence showing improvement in a veteran's 
disability might warrant a reduction in disability rating. VA 
regulations already explicitly contemplate the possibility of a reduced 
rating in the event a veteran's condition improves. See 38 CFR 3.327.

D. Evaluations and Visual Acuity

    One commenter stated that VA should evaluate visual disability 
based on uncorrected visual acuity, rather than corrected visual 
acuity. This commenter noted that this approach would be more 
equitable, as it is similar to the criteria used for auditory 
conditions (with evaluations based on the unaided hearing). VA 
disagrees with this recommendation as aural and visual disabilities are 
distinctly different. Medical interventions for auditory conditions 
typically preserve or improve residual function to an extent, but do 
not completely restore function. On the other hand, medical 
interventions for visual conditions may often completely restore 
function. For example, hearing aids typically amplify volume at a 
frequency identified with hearing loss, but the amplification fails to 
completely restore hearing and may amplify ambient noise, adding an 
aural confusion not previously present. In contrast, lenses and/or 
surgery for visual acuity may, in most cases, actually restore normal 
acuity. Also, hearing aids often cost significantly more than 
spectacles or contact lenses, so VA would not expect or require 
disabled individuals to routinely own and wear them to ameliorate that 
disability. The visually impaired are more readily tested and fitted 
with corrective devices (e.g., eyeglasses or contact lenses) at far 
more facilities than the hearing impaired. Such significant differences 
in nature and treatment preclude VA from handling these two types of 
disabilities similarly. Therefore, VA declines to make any changes 
based on this comment.
    Another commenter suggested developing rating requirements 
(providing a minimum rating) for visual conditions that cause a greater 
overall disability than a visual acuity test can properly record, and 
provided an example of a situation that focused mainly on quality of 
life issues. VA cannot make any changes based on this comment. As 
stated previously, Section 1155 of title 38, United States Code, 
requires VA to base disability ratings, as far as practicable, on the 
average impairment in earning capacity in civil occupations resulting 
from such diseases and injuries, and not on disruptions to lifestyle. 
See also 38 CFR 4.1. The example given by the commenter does not 
provide sufficient evidence of occupational impairment to support 
entitlement to the minimum rating proposed. VA will not make any 
changes to the final rule based on this comment.

E. Ability To Use Corrective Devices

    One commenter noted that VA should consider the ability to wear 
corrective lenses for an entire workday, noting that some lenses cause 
pain. VA acknowledges that some individuals may tolerate corrective 
lenses better than others, but finds it impractical and unnecessary to 
incorporate this level of individual specificity into the evaluation 
criteria under DC 6035. VA notes that under 38 CFR 3.321, ratings are 
based upon average impairments of earning capacity as far as 
practicable. Under Sec.  3.321, when an exceptional case renders the 
rating schedule inadequate, VA may consider an extra-schedular 
evaluation commensurate with the earnings loss due exclusively to the 
disability or disabilities. When evidence of marked interference with 
employment renders the regular rating schedule impractical, VA may 
assign an extraschedular evaluation. VA will not make any changes based 
on this comment.

F. Goldmann Charts

    One commenter rejected VA's proposal to no longer require the use 
of a Goldmann chart for visual field and/or muscle function testing. 
The commenter stated that a Goldmann chart is critical to detecting 
errors in the administration of visual examinations and in application 
of the rating criteria. Contrary to the statements from the commenter, 
VA does not use a Goldmann chart to detect errors in the examination or 
rating process. VA can test visual field and muscle function using 
manual methods (a Goldmann bowl or a tangent screen) or through 
automated perimetry. The automated perimetry employs software to 
automatically produce measurements and populate them in both chart and 
table format. The manual method, on the other hand, requires the 
examiner to manually record the values (either in table or chart 
format). Regardless of the method of testing, the recording of data on 
a chart or table has no bearing on whether the actual test values are 
accurate. If the test values are inaccurate, VA must reexamine the 
condition. As such, VA proposed to remove the Goldmann chart 
requirement because the actual test values, not how they are plotted on 
the chart, determines the evaluation assigned. This allows a rating 
veterans service representative to evaluate disabilities based on the 
test results, regardless of the format in which those results are 
presented, as long as the information conforms to all other regulatory 
requirements. It is important to note that VA will continue to accept 
Goldmann charts as part of a claim for visual disability. Therefore, VA 
will not change the proposal to eliminate the Goldmann chart 
requirement in visual field and/or muscle function testing.

[[Page 15319]]

G. Specific Changes to DC 6035, Keratoconus

    One commenter stated that VA should automatically consider 
headaches and/or migraines as secondary to keratoconus and 
automatically grant service connection for them. Section 3.310 states 
when VA may grant service connection for a disability that is 
proximately due, or secondary, to a service-connected disease or 
injury. When the evidence of record establishes such a secondary 
relationship between keratoconus and headaches and/or migraines, VA may 
service connect them. However, the numerous potential causes of 
headaches and migraines, including co-morbid conditions that are often 
unrelated to military service, preclude VA from automatically granting 
service connection on a secondary basis without sufficient evidence 
showing a proximate cause. Therefore, VA will not make any changes 
based upon this comment.
    The same commenter recommended that VA assign a minimum 30 percent 
evaluation for veterans with keratoconus who receive a corneal 
transplant. The commenter noted that a corneal transplant limits 
participation in recreational activities unrelated to occupational 
performance. VA currently provides under DC 6036 a minimum 10 percent 
evaluation for veterans with corneal transplants, with pain, 
photophobia, and glare sensitivity, regardless of the underlying 
disability (including keratoconus). A 10 percent minimum evaluation 
recognizes that, in some cases, residual symptoms may present 
occupational impairment. Additionally, where further visual impairment 
is present, a higher evaluation may be warranted, to include a 30 
percent evaluation. As noted above, VA disability evaluations must be 
based on average impairment in earnings capacity and cannot consider 
the effects of a disability upon lifestyle. 38 U.S.C. 1155, 38 CFR 4.1. 
Furthermore, VA believes that the current evaluation criteria for 
corneal transplant, including those performed to treat keratoconus, 
accurately compensate for residual disability which may interfere with 
occupational performance. Therefore, VA will not make any changes based 
on this comment.

H. Specific Changes to Proposed DC 6042, Retinal Dystrophy

    One commenter proposed additional evaluation criteria for DC 6042, 
Retinal dystrophy, to include night blindness, glare sensitivity, loss 
of contrast sensitivity, loss of depth perception, and loss of color 
vision. VA disagrees with this proposal, as the symptoms noted are 
almost always accompanied by measurable changes in visual acuity, 
visual field defects, or muscle function, all of which form the current 
definition of visual impairment under 38 CFR 4.75. Additionally, as 
previously noted, VA may assign an extraschedular evaluation under 38 
CFR 3.321 when evidence of marked interference with employment renders 
application of the regular rating schedule impractical. Therefore, VA 
will not make any changes based on this comment.

I. Miscellaneous Comments

    One commenter stated that VA should broaden the requirements for 
rating visual acuity. This comment did not propose any specific 
requirements or alternative rating criteria to explain the suggested 
expansion. Without proposing an alternative rating criteria or 
clarifying how the requirements should be broadened, VA cannot consider 
revisions to the rating criteria based on this comment.
    The same commenter stated that VA should provide a minimum 
evaluation to ensure that issues that are not being taken into account 
by the rating system are otherwise addressed. As previously noted, VA 
is required by 38 U.S.C. 1155 to base disability ratings, as far as 
practicable, on the average impairments of earnings capacity in civil 
occupations from such injuries. Current law does not allow VA to 
provide evaluations based on factors outside of earnings impairment. 
Therefore, VA is unable to make any changes based upon this comment.
    One commenter suggested listing more disabilities to this portion 
of the rating schedule. The commenter specifically requested inclusion 
of wet macular degeneration, dry macular degeneration, early-onset 
macular degeneration, optic atrophy, and various classifications of 
dystrophy. VA notes that the criteria in DC 6042, Retinal dystrophy, 
sufficiently address the types of retinal dystrophy and other 
conditions noted by the commenter. However, in light of the comment, VA 
will amend the title of the DC to indicate additional types of 
dystrophy to which DC 6042 may apply.
    The same commenter also suggested adding diagnostic codes for 
histoplasmosis, Stargardt's disease, and optic neuritis. Histoplasmosis 
is an infectious disease caused by inhalation of spores often found in 
bird and bat droppings. The symptoms include fever, chills, headache, 
muscle aches, dry cough, and chest discomfort. Histoplasmosis is caused 
by an infectious agent and produces no visual impairment and is 
therefore not appropriate for inclusion in the portion of the rating 
schedule pertaining to the eyes and visual impairment. Stargardt's 
disease, or Stargardt macular degeneration, is a genetic form of 
juvenile macular degeneration. By definition, the signs and symptoms of 
Stargardt's disease begin in childhood. When appropriate, VA can 
consider this condition as related to active military service when it 
is first diagnosed during active service or, if it existed prior to 
military service, the evidence establishes that military service 
aggravated the condition beyond its natural progression. 38 CFR 
3.303(a), 3.306(a). VA notes that DC 6042, Retinal dystrophy, will 
include the additional clarifying changes noted above, and so 
adequately covers this category of disability. VA, therefore, makes no 
additional changes based on this suggestion. Meanwhile, optic neuritis 
is the inflammation of the optic nerve and is a sub-type of optic 
neuropathy, the general term for any damage of the optic nerve. VA 
notes that DC 6026, Optic neuropathy, adequately covers this category 
and sub-type of visual disability. Therefore, VA makes no additional 
changes based on this suggestion.
    The same commenter suggested adding a minimum 10 percent evaluation 
under the General Rating Formula for any visual disability resulting in 
photophobia and glare sensitivity. VA appreciates this suggestion and 
notes that the rating schedule currently considers pain, photophobia, 
and glare sensitivity as productive of a minimum 10 percent evaluation 
when it is directly related to corneal transplant. 38 CFR 4.79, DC 
6036. VA disagrees, however, with adding this criterion as the 
suggested minimum evaluation to the General Rating Formula for Diseases 
of the Eye. The minimum evaluation would then apply in cases where 
there is no clear association between the claimed photophobia and glare 
sensitivity and the specific visual disability subject to evaluation. 
As noted previously, VA can and will consider these signs/symptoms on a 
case-by-case basis when conducting an extraschedular review in 
accordance with Sec.  3.321.

J. Technical Changes

    Non-substantive changes to the rulemaking have been made to correct 
inaccuracies and/or unnecessary language in the final rule. In the 
proposed rule, several DCs included the instruction to evaluate under 
the General Rating Formula for Diseases of the Eye, without any 
alternative rating

[[Page 15320]]

criteria. However, this language is redundant in light of the 
instructions contained at the beginning of Sec.  4.79, which 
specifically state to use the General Rating Formula for Diseases of 
the Eye unless otherwise instructed. Therefore, this redundant language 
has been removed from DCs 6026 and 6046. To further ensure that this 
general instruction is not missed, VA is moving this sentence outside 
of the rating table to immediately follow the section heading for Sec.  
4.79.
    Additionally, the proposed rulemaking used the terms ``evaluate'' 
and ``rate'' interchangeably when indicating a disability should be 
evaluated in a certain manner. To maintain consistency and avoid any 
confusion, VA has amended the language to state ``evaluate'' wherever 
``rate'' was previously used.
    The text of the proposed rulemaking inadvertently omitted the 
portion of Sec.  4.79 which covers evaluations based on impaired 
central visual acuity (DCs 6061 through 6066). VA has corrected this 
omission in the final rule and notes that it has not made any changes 
to this portion of Sec.  4.79.
    Finally, VA has made updates to Appendices A, B, and C of part 4 to 
reflect the above-noted changes.

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 May 13, 2018, the date VBMS-R system 
updates related to this final rule will be complete.

Executive Orders 12866, 13563 and 13771

    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 regulatory action 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 https://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 
website at https://www.va.gov/orpm/, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.'' This 
rule is not an E.O. 13771 regulatory action because this rule is not 
significant under E.O. 12866.

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 final regulatory 
flexibility analysis requirements of section 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 program numbers and 
titles for this rule are 64.009, Veterans Medical Care Benefits; 
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.

List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

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 December 1, 2017, for publication.

    Dated: March 27, 2018.
Jeffrey M. Martin,
Impact Analyst, Office of Regulation Policy & Management, Office of the 
Secretary, Department of Veterans Affairs.

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

PART 4--SCHEDULE FOR RATING DISABILITIES

Subpart B--Disability Ratings

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

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

0
2. Amend Sec.  4.77 by revising paragraph (a) to read as follows:


Sec.  4.77  Visual fields.

    (a) Examination of visual fields. Examiners must use either 
Goldmann kinetic perimetry or automated perimetry using Humphrey Model 
750, Octopus Model 101, or later versions of these perimetric devices 
with simulated kinetic Goldmann testing capability. For

[[Page 15321]]

phakic (normal) individuals, as well as for pseudophakic or aphakic 
individuals who are well adapted to intraocular lens implant or contact 
lens correction, visual field examinations must be conducted using a 
standard target size and luminance, which is Goldmann's equivalent III/
4e. For aphakic individuals not well adapted to contact lens correction 
or pseudophakic individuals not well adapted to intraocular lens 
implant, visual field examinations must be conducted using Goldmann's 
equivalent IV/4e. The examiner must document the results for at least 
16 meridians 22\1/2\ degrees apart for each eye and indicate the 
Goldmann equivalent used. See Table III for the normal extent (in 
degrees) of the visual fields at the 8 principal meridians (45 degrees 
apart). When the examiner indicates that additional testing is 
necessary to evaluate visual fields, the additional testing must be 
conducted using either a tangent screen or a 30-degree threshold visual 
field with the Goldmann III stimulus size. The examination report must 
document the results of either the tangent screen or of the 30-degree 
threshold visual field with the Goldmann III stimulus size.
* * * * *

0
3. Amend Sec.  4.78 by revising paragraph (a) to read as follows:


Sec.  4.78  Muscle function.

    (a) Examination of muscle function. The examiner must use a 
Goldmann perimeter chart or the Tangent Screen method that identifies 
the four major quadrants (upward, downward, left, and right lateral) 
and the central field (20 degrees or less) (see Figure 2). The examiner 
must document the results of muscle function testing by identifying the 
quadrant(s) and range(s) of degrees in which diplopia exists.
* * * * *

0
4. Amend Sec.  4.79 in the table entitled ``Diseases of the Eye'' by:
0
a. Relocating diagnostic codes 6000, 6001, 6002, 6006, 6007, 6008, and 
6009, after the first table ``Note'' and before diagnostic code 6010;
0
b. Revising the section entitled ``General Rating Formula'';
0
c. Revising diagnostic codes 6000, 6006, 6009-6015, 6017-6018, 6026-
6027, and 6034-6036,;
0
d. Adding diagnostic codes 6040, 6042, and 6046 in numerical order; and
0
e. Revising diagnostic code 6091.
    The revisions and additions read as follows:


Sec.  4.79  Schedule of ratings--eye.

    Unless otherwise directed, evaluate diseases of the eye under the 
General Rating Formula for Diseases of the Eye.

                           Diseases of the Eye
------------------------------------------------------------------------
                                                                Rating
------------------------------------------------------------------------
General Rating Formula for Diseases of the Eye:
    Evaluate on the basis of either visual impairment due
     to the particular condition or on incapacitating
     episodes, whichever results in a higher evaluation
    With documented incapacitating episodes requiring 7 or            60
     more treatment visits for an eye condition during the
     past 12 months........................................
    With documented incapacitating episodes requiring at              40
     least 5 but less than 7 treatment visits for an eye
     condition during the past 12 months...................
    With documented incapacitating episodes requiring at              20
     least 3 but less than 5 treatment visits for an eye
     condition during the past 12 months...................
    With documented incapacitating episodes requiring at              10
     least 1 but less than 3 treatment visits for an eye
     condition during the past 12 months...................
    Note (1): For the purposes of evaluation under 38 CFR
     4.79, an incapacitating episode is an eye condition
     severe enough to require a clinic visit to a provider
     specifically for treatment purposes...................
    Note (2): Examples of treatment may include but are not
     limited to: Systemic immunosuppressants or biologic
     agents; intravitreal or periocular injections; laser
     treatments; or other surgical interventions...........
    Note (3): For the purposes of evaluating visual
     impairment due to the particular condition, refer to
     38 CFR 4.75-4.78 and to Sec.   4.79, diagnostic codes
     6061-6091.............................................
6000 Choroidopathy, including uveitis, iritis, cyclitis, or
 choroiditis
------------------------------------------------------------------------
 
                              * * * * * * *
6006 Retinopathy or maculopathy not otherwise specified
 
                              * * * * * * *
6009 Unhealed eye injury.
    Note: This code includes orbital trauma, as well as
     penetrating or non-penetrating eye injury
6010 Tuberculosis of eye:
    Active                                                           100
    Inactive: Evaluate under Sec.   4.88c or Sec.   4.89 of
     this part, whichever is appropriate...................
6011 Retinal scars, atrophy, or irregularities:
    Localized scars, atrophy, or irregularities of the                10
     retina, unilateral or bilateral, that are centrally
     located and that result in an irregular, duplicated,
     enlarged, or diminished image.........................
    Alternatively, evaluate based on the General Rating
     Formula for Diseases of the Eye, if this would result
     in a higher evaluation
6012 Angle-closure glaucoma
    Evaluate under the General Rating Formula for Diseases            10
     of the Eye. Minimum evaluation if continuous
     medication is required................................
6013 Open-angle glaucoma
    Evaluate under the General Rating Formula for Diseases            10
     of the Eye. Minimum evaluation if continuous
     medication is required................................
6014 Malignant neoplasms of the eye, orbit, and adnexa
 (excluding skin):
    Malignant neoplasms of the eye, orbit, and adnexa                100
     (excluding skin) that require therapy that is
     comparable to those used for systemic malignancies,
     i.e., systemic chemotherapy, X-ray therapy more
     extensive than to the area of the eye, or surgery more
     extensive than enucleation............................

[[Page 15322]]

 
    Note: Continue the 100 percent rating beyond the
     cessation of any surgical, X-ray, antineoplastic
     chemotherapy, or other therapeutic procedure. Six
     months after discontinuance of such treatment, the
     appropriate disability rating will be determined by
     mandatory VA examination. Any change in evaluation
     based upon that or any subsequent examination will be
     subject to the provisions of Sec.   3.105(e) of this
     chapter. If there has been no local recurrence or
     metastasis, evaluate based on residuals
    Malignant neoplasms of the eye, orbit, and adnexa
     (excluding skin) that do not require therapy
     comparable to that for systemic malignancies:
    Separately evaluate visual and nonvisual impairment,
     e.g., disfigurement (diagnostic code 7800), and
     combine the evaluations...............................
6015 Benign neoplasms of the eye, orbit, and adnexa
 (excluding skin):
    Separately evaluate visual and nonvisual impairment,
     e.g., disfigurement (diagnostic code 7800), and
     combine the evaluations
------------------------------------------------------------------------
 
                              * * * * * * *
6017 Trachomatous conjunctivitis:
    Active: Evaluate under the General Rating Formula for             30
     Diseases of the Eye, minimum rating...................
    Inactive: Evaluate based on residuals, such as visual
     impairment and disfigurement (diagnostic code 7800)
6018 Chronic conjunctivitis (nontrachomatous):
    Active: Evaluate under the General Rating Formula for             10
     Diseases of the Eye, minimum rating...................
    Inactive: Evaluate based on residuals, such as visual
     impairment and disfigurement (diagnostic code 7800)
 
                              * * * * * * *
6026 Optic neuropathy
6027 Cataract:
    Preoperative: Evaluate under the General Rating Formula  ...........
     for Diseases of the Eye
    Postoperative: If a replacement lens is present
     (pseudophakia), evaluate under the General Rating
     Formula for Diseases of the Eye. If there is no
     replacement lens, evaluate based on aphakia
     (diagnostic code 6029)
 
                              * * * * * * *
6034 Pterygium:
    Evaluate under the General Rating Formula for Diseases
     of the Eye, disfigurement (diagnostic code 7800),
     conjunctivitis (diagnostic code 6018), etc., depending
     on the particular findings, and combine in accordance
     with Sec.   4.25
6035 Keratoconus
6036 Status post corneal transplant:
    Evaluate under the General Rating Formula for Diseases            10
     of the Eye. Minimum, if there is pain, photophobia,
     and glare sensitivity.................................
 
                              * * * * * * *
6040 Diabetic retinopathy
6042 Retinal dystrophy (including retinitis pigmentosa, wet
 or dry macular degeneration, early-onset macular
 degeneration, rod and/or cone dystrophy)
6046 Post-chiasmal disorders
------------------------------------------------------------------------
Impairment of Central Visual Acuity
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
6091 Symblepharon:
    Evaluate under the General Rating Formula for Diseases
     of the Eye, lagophthalmos (diagnostic code 6022),
     disfigurement (diagnostic code 7800), etc., depending
     on the particular findings, and combine in accordance
     with Sec.   4.25
------------------------------------------------------------------------


0
5. In appendix A to part 4, add entries for Sec. Sec.  4.77, 4.78, and 
4.79 in numerical order to read as follows:

Appendix A to Part 4--Table of Amendments and Effective Dates Since 1946
------------------------------------------------------------------------
          Sec.             Diagnostic code No.
------------------------------------------------------------------------
 
                              * * * * * * *
4.77...................  .......................  Revised May 13, 2018.
4.78...................  .......................  Revised May 13, 2018.
4.79...................  .......................  Introduction criterion
                                                   May 13, 2018; Revised
                                                   General Rating
                                                   Formula for Diseases
                                                   of the Eye NOTE
                                                   revised May 13, 2018.
                         6000...................  Criterion May 13,
                                                   2018.
                         6001...................  Criterion May 13,
                                                   2018.
                         6002...................  Criterion May 13,
                                                   2018.
                         6006...................  Title May 13, 2018.
                                                   Criterion May 13,
                                                   2018.

[[Page 15323]]

 
                         6007...................  Criterion May 13,
                                                   2018.
                         6008...................  Criterion May 13,
                                                   2018.
                         6009...................  Criterion May 13,
                                                   2018.
                         6011...................  Evaluation May 13,
                                                   2018.
                         6012...................  Evaluation May 13,
                                                   2018.
                         6013...................  Evaluation May 13,
                                                   2018.
                         6014...................  Title May 13, 2018.
                         6015...................  Title May 13, 2018.
                         6017...................  Evaluation May 13,
                                                   2018.
                         6018...................  Evaluation May 13,
                                                   2018.
                         6019...................  Evaluation.
                         6026...................  Evaluation May 13,
                                                   2018.
                         6027...................  Evaluation May 13,
                                                   2018.
                         6034...................  Evaluation May 13,
                                                   2018.
                         6035...................  Evaluation May 13,
                                                   2018.
                         6036...................  Evaluation May 13,
                                                   2018.
                         6040...................  Added May 13, 2018.
                         6042...................  Added May 13, 2018.
                         6046...................  Added May 13, 2018.
                         6091...................  Evaluation May 13,
                                                   2018.
 
                              * * * * * * *
------------------------------------------------------------------------


0
6. In appendix B to part 4, revise diagnostic codes 6000-6001, 6006-
6015, 6025-6027, 6034, and 6035, and add diagnostic codes 6036, 6040, 
6042, and 6046 in numerical order to read as follows:

          Appendix B to Part 4--Numerical Index of Disabilities
------------------------------------------------------------------------
       Diagnostic code No.
----------------------------------
 
                                * * * * *
                                 THE EYE
                           Diseases of the Eye
------------------------------------------------------------------------
6000.............................  Choroidopathy, including uveitis,
                                    iritis, cyclitis, or choroiditis.
6001.............................  Keratopathy.
 
                                * * * * *
6006.............................  Retinopathy or maculopathy not
                                    otherwise specified.
6007.............................  Intraocular hemorrhage.
6008.............................  Detachment of retina.
6009.............................  Unhealed eye injury.
6010.............................  Tuberculosis of eye.
6011.............................  Retinal scars, atrophy, or
                                    irregularities.
6012.............................  Angle-closure glaucoma.
6013.............................  Open-angle glaucoma.
6014.............................  Malignant neoplasms of the eye,
                                    orbit, and adnexa (excluding skin).
6015.............................  Benign neoplasms of the eye, orbit,
                                    and adnexa (excluding skin).
 
                                * * * * *
6025.............................  Disorders of the lacrimal apparatus
                                    (epiphora, dacrocystitis, etc.).
6026.............................  Optic neuropathy.
6027.............................  Cataract.
 
                                * * * * *
6034.............................  Pterygium.
6035.............................  Keratoconus.
6036.............................  Status post corneal transplant.
 
                                * * * * *
6040.............................  Diabetic retinopathy.
6042.............................  Retinal dystrophy (including
                                    retinitis pigmentosa, wet or dry
                                    macular degeneration, early-onset
                                    macular degeneration, rod and/or
                                    cone dystrophy).
6046.............................  Post-chiasmal disorders.
 
                                * * * * *
------------------------------------------------------------------------


0
7. In appendix C:
0
a. Under the entry for ``New growths'':
0
i. Under ``Benign'', remove the entry for ``Eyeball and adnexa'' and 
add in its place an entry for ``Eye, orbit, and adnexa'';
0
ii. Under ``Malignant'', remove the entry for ``Eyeball'' and add in 
its place an entry for ``Eye, orbit, and adnexa'';
0
b. Add in alphabetical order an entry for ``Post-chiasmal disorders'';
0
c. Add in alphabetical order entries for:
0
i. ``Retinal dystrophy (including retinitis pigmentosa, wet or dry 
macular degeneration, early-onset macular degeneration, rod and/or cone 
dystrophy)''; and
0
ii. ``Retinopathy, diabetic''.
0
d. Remove the entry for ``Retinitis''; and
0
e. Add in alphabetical order an entry for ``Retinopathy or maculopathy 
not otherwise specified''.
    The additions and revisions read as follows:.

        Appendix C to Part 4--Alphabetical Index of Disabilities
------------------------------------------------------------------------
                                                              Diagnostic
                                                               code No.
------------------------------------------------------------------------
 
                                * * * * *
New growths:
    Benign.................................................
 
                                * * * * *
        Eye, orbit, and adnexa.............................         6015
 
                                * * * * *
        Eye, orbit, and adnexa.............................         6014
 
                                * * * * *
Post-chiasmal disorders....................................         6046
 
                                * * * * *
Retinal dystrophy (including retinitis pigmentosa, wet or           6042
 dry macular degeneration, early-onset macular
 degeneration, rod and/or cone dystrophy)..................
Retinopathy, diabetic......................................         6040
Retinopathy or maculopathy not otherwise specified.........         6006
 
                                * * * * *
------------------------------------------------------------------------

[FR Doc. 2018-06928 Filed 4-9-18; 8:45 am]
 BILLING CODE 8320-01-P