Schedule for Rating Disabilities: The Digestive System

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 4</CFR> <RIN>RIN 2900-AQ90</RIN> <SUBJECT>Schedule for Rating Disabilities: The Digestive System</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This document amends the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) by revising the portion of the schedule that addresses the Digestive System. The effect of this action is to ensure that the rating schedule uses current medical terminology and provides detailed and updated criteria for evaluation of digestive conditions for disability rating purposes. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective May 19, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Ulia Sokol, M.D., M.B.A., Medical Officer, Regulations Staff, (218A), Compensation Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, <E T="03">218VASRDPMO.VBACO@va.gov,</E> (202) 461-9700. (This is not a toll-free telephone number.) </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> On January 11, 2022, VA published in the <E T="04">Federal Register</E> the proposed rule for Schedule of Rating Disabilities: The Digestive System. <E T="03">See</E> 87 FR 1522. VA received 22 comments during the 60-day comment period, including from two Veterans Service Organizations (Paralyzed Veterans of America and The National Veterans Legal Services Program) and two Veterans advocacy groups (The National Organization of Veterans' Advocates, Inc. and The National Law School Veterans Clinic Consortium). VA appreciates the comments submitted in response to the proposed rule. Based on the rationale stated in the proposed rule and in this document, the proposed rule is adopted as a final rule with minor changes noted below. <E T="03">Severability:</E> The provisions of the proposed rule are separate and severable from one another, and if any provision is stayed or determined to be invalid, the agency would intend that the remaining provisions continue in effect. VA has carefully considered the requirements of the proposed rule, both individually and in their totality, including their potential costs to the agency and benefit to veterans. In the event a court were to stay or invalidate one or more provisions of this rule as finalized, VA would want the remaining portions of the rule as finalized to remain in full force and legal effect. <HD SOURCE="HD1">I. Comments of General Support</HD> One commenter expressed support for utilizing “undernutrition” instead of “malnutrition” under 38 CFR 4.112. VA thanks this commenter for their input. Another commenter expressed support for the proposed rule because it provides more comprehensive evaluative criteria for those with assisted nutrition devices such as gastrostomy tubes, total parenteral nutrition (TPN) ports, and gastric stimulators. VA thanks this commenter for their support. One commenter expressed support for the change to DC 7326 for Crohn's disease because it comprehensively addresses the symptoms of this disease, its treatment modalities, and functional impairment caused by this disease. VA thanks this commenter for their support. While most commenters generally welcomed modernizing the rating schedule and recognized this effort as a thoroughly-researched undertaking, some commenters shared some concerns with VA. These concerns are addressed in the sections below. <HD SOURCE="HD1">II. Comments Regarding Coexisting Abdominal Conditions Under § 4.114, Schedule of Ratings—Digestive System</HD> Two commenters expressed concern regarding the prohibition of rating coexisting abdominal conditions under 38 CFR 4.113 and 4.114, stating they are too broad in scope. One commenter recommended VA should simply have rating specialists consider the anti-pyramiding principles set out in 38 CFR 4.14. The other commenter suggested that VA specifically reconsider adding the following diagnostic codes to the list of codes that cannot be combined with each other: DC 7303, chronic complications of upper gastrointestinal surgery, DC 7350, liver abscess, DC 7352, pancreas transplant, DC 7355, celiac disease, DC 7356, gastrointestinal dysmotility syndrome, and DC 7357, post pancreatectomy. It was the commenter's opinion that this approach is restrictive and precludes the ability to maximize benefits for veterans. VA makes no changes based on these comments. First, the addition of the newly created diagnostic codes is appropriate due to 38 CFR 4.14 and 4.113, which advises rating personnel to avoid providing multiple evaluations for the same disability under various diagnoses. Even though VA is adding diagnostic codes for new conditions, the symptoms and functional impairment experienced by these new conditions are commonly shared with other diagnoses found in this body system and therefore cannot be combined. Next, while 38 CFR 4.114 adheres to the provisions laid out in 38 CFR 4.14, it provides a benefit that 38 CFR 4.14 does not—it allows rating personnel to elevate the evaluation to the next higher level when warranted based on the overall disability severity. This is a benefit to the veteran that is not available through the application of 38 CFR 4.14 alone and provides a favorable means of accounting for non-overlapping symptoms. For example, consider a veteran evaluated at 30% for the predominant disability of Crohn's disease (DC 7326) and 30% for diverticulitis (DC 7327) with non-overlapping symptoms. When applying the symptoms of diverticulitis to Crohn's, the resultant evaluation is higher than that of Crohn's alone warranting an elevation to the next higher level under DC 7326, which is 60%. The regulation in 38 CFR 4.14 does not allow for elevations in this way. Therefore, it is more advantageous that the provisions of 38 CFR 4.114 be applied for these diagnostic codes than 38 CFR 4.14. However, VA notes that the terminology used in this paragraph can be revised to aid its interpretation and application. The paragraph advises rating personnel to not combine diagnostic codes and to assign a single evaluation that reflects the predominant disability picture. The term “combine” in this paragraph refers to combining disabilities as defined in 38 CFR 4.25 for the purposes of determining the combined disability evaluation, but it can be misinterpreted as stating to not provide service connection for multiple conditions under these diagnostic codes. To simplify this language and ensure clarity, VA revises it to state that ratings under these diagnostic codes will be assigned a single evaluation that reflects the predominant disability picture and that elevation to the next higher evaluation can be provided if warranted based on the severity of the overall disability. <HD SOURCE="HD1">III. Comments Regarding DC 7202 Tongue, Loss of Whole or Part</HD> One commenter recommended that VA remove the note under DC 7202 to review for Special Monthly Compensation (SMC) for tongue, loss of whole or part because the evaluative criteria no longer evaluates aphonia. Another commenter asked VA to, “restore criteria under DC 7202 for the amount of tongue removed and speech impairment to address . . . situations where communication is impaired but not precluded” as necessary for the grant of special monthly compensation for complete organic aphonia. Otherwise, the commenter recommended VA refer to another body system that adequately addresses speech impairment due to loss of tongue. First, the VASRD has two diagnostic codes that provide evaluations for speech impairment. One of those diagnostic codes, DC 6519 for organic aphonia, is the most appropriate catch-all for speech impairment issues due to infection, disease, or in the case of loss of whole or part of the tongue, injury. Additionally, DC 6519 provides objective criteria to adequately evaluate situations where speech is impaired but not precluded. Second, the intent of Note 1 is to provide general guidance to the rating personnel to capture any additional functional impairment that comes with the loss of the tongue, whole or partial. However, VA agrees that removing the note about SMC is warranted and that the note should more directly guide rating personnel to the more appropriate diagnostic code to evaluate speech impairment that can arise due to whole or partial loss of the tongue. Therefore, VA revises Note 1 of DC 7202 to refer rating personnel to DC 6519 or DC 6516 when there is evidence of speech impairment. VA thanks these commenters for their input. The same commenter pointed out that in the preamble of the proposed rule for DC 7202, VA failed to demonstrate how medical treatment and rehabilitation can restore speech function to varying degrees. VA acknowledges that speech rehabilitation methodology and references to other body systems were not discussed in the preamble because those are outside the scope of this rulemaking. From a disability compensation standpoint, VA already has regulations to address evaluations that need review if speech function is restored or the condition otherwise improves. <E T="03">See</E> 38 CFR 3.344 and 3.327. VA thanks this commenter but makes no changes based on this comment. One commenter suggested that VA should recognize that both the abilities to swallow and to speak are highly relevant and should be considered under DC 7202. Additionally, the commenter recommended that VA provide a 30% evaluation for marked loss of speech due to loss of tongue. While VA agrees that the ability to swallow and to speak may be impaired due to the loss of tongue in whole or in part, speech is not a function of the digestive body system. Speech impairment has no effect on whether one is able to sufficiently ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 134k characters. 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