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AGENCY:
Department of Veterans Affairs.
ACTION:
Supplemental notice of proposed rulemaking.
SUMMARY:
The Department of Veterans Affairs (VA) is issuing a supplemental notice of proposed rulemaking (SNPRM) that proposes to add a diagnostic code (DC) for constrictive bronchiolitis (or obliterative bronchiolitis) (CB) to the regulations that govern the respiratory system.
DATES:
Comments must be received on or before October 15, 2024.
ADDRESSES:
Comments must be submitted through www.regulations.gov. Except as provided below, comments received before the close of the comment period will be available at www.regulations.gov for public viewing, inspection, or copying, including any personally identifiable or confidential business information that is included in a comment. We post the comments received before the close of the comment period on www.regulations.gov as soon as possible after they have been received. VA will not post on Regulations.gov public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm an individual. VA encourages individuals not to submit duplicative comments; however, we will post comments from multiple unique commenters even if the content is identical or nearly identical to other comments. Any public comment received after the comment period's closing date is considered late and will not be considered in the final rulemaking. In accordance with the Providing Accountability Through Transparency Act of 2023, a plain language summary (not more than 100 words in length) of this SNPRM is available at www.regulations.gov, under RIN 2900-AQ72.
FOR FURTHER INFORMATION CONTACT:
Rodney Grimm and Terence Koontzy, Regulations Analysts, VASRD Regulations Staff (218A), Compensation Service (21C), 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 February 15, 2022, VA published a proposed rulemaking in the Federal Register ( See87 FR 8474) that proposes to amend its regulations that govern the ear, nose, throat, audiology, and respiratory systems. Within this rulemaking, VA proposed to add a General Rating Formula for Respiratory Conditions to evaluate several respiratory conditions currently contained within 38 CFR 4.97, Schedule of ratings—respiratory system. VA will address all the public comments received on the proposed rule and any public comments VA receives on this SNPRM in the final rulemaking.
I. A Diagnostic Code (DC) for Constrictive Bronchiolitis (CB)
On August 10, 2022, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act, Public Law 117-168, was signed into law to improve access to VA benefits and health care for Veterans who were exposed to toxic substances during their military service. This action occurred after VA published its proposed rule to update § 4.97. Section 406 of the PACT Act added 38 U.S.C 1120 to establish presumptive service connection for diseases related to exposure to burn pit and other toxins. Among the respiratory conditions included within section 406, CB is the only condition without its own DC within the VA Schedule for Rating Disabilities (VASRD). Therefore, VA is proposing in this SNPRM to add DC 6605 for CB. The CB addition is the only proposal of this SNPRM, and VA is seeking public comment on this issue only.
At present, VA does not have a specific DC for CB. When VA encounters disabilities not listed in the VASRD, VA rates them analogously to a listed condition that is closely related (similar anatomical location, impacted functionality, and/or symptomology) in accordance with 38 CFR 4.20. Thus, VA currently evaluates CB under one of the closely related respiratory conditions found under § 4.97. Although § 4.20 allows VA to appropriately evaluate CB, the addition of a unique DC will enable VA to easily track claims and decision outcomes for this condition.
II. Rating CB
VA currently uses pulmonary function test (PFTs) as the primary evaluative criteria for many of the respiratory conditions found under § 4.97 because medical researchers suggest that “[PFTs] are the cornerstone for evaluating respiratory impairment.” See Sood, A. (2014). Performing a lung disability evaluation: How, when, and why?. Journal of Occupational and Environmental Medicine, 56 Suppl 10(0 10), S23-S29. Doi: 10.1097/JOM.0000000000000282. The proposed rule published on February 15, 2022, set forth a General Rating Formula for Respiratory Conditions to evaluate respiratory conditions based on PFT findings, maximum oxygen consumption, or metabolic equivalents. See87 FR 8476. VA proposes to rate CB using that General Rating Formula.
To be clear, this SNPRM does not change VA's proposal for the General Rating Formula; it simply adds for CB a DC that would use the General Rating Formula. To reiterate, VA is seeking comments on the CB issue only, to include whether the proposed General Rating Formula for Respiratory Conditions is appropriate for evaluating CB.
Executive Orders 12866, 13563 and 14094
Executive Order 12866 (Regulatory Planning and Review) directs 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 14094 (Executive Order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rulemaking is a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.
Regulatory Flexibility Act
The added DC contained in this SNPRM would not have a significant economic impact on a substantial number of small entities because only VA officials process and assign DCs for Veterans. On this basis, the Secretary hereby certifies that this SNPRM would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
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 SNPRM would have no such effect on State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This SNPRM contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
Assistance Listing
The Assistance Listing numbers and titles for this proposed rule are 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
Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on September 5, 2024, 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.
Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy & Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, VA proposes to amend 38 CFR part 4 as set forth below:
PART 4—SCHEDULE FOR RATING DISABILITIES
1. The authority citation for part 4, subpart B continues to read as follows:
Authority: 38 U.S.C. 1155, unless otherwise noted.
Subpart B—Disability Ratings
2. Revise § 4.96 by revising paragraph (c) to read as follows:
(c) Special provisions for the application of evaluation criteria for diagnostic codes 6600 through 6605, 6731, 6820, 6825 through 6833, 6840 through 6846, and 6848.
3. Amend § 4.97 by adding, in numerical order, an entry for diagnostic code 6605 to read as follows:
| Rating | |
|---|---|
| * * * * * * * | |
| INTRINSIC LUNG DISEASES | |
| Airway Disorders (Trachea, Bronchi) | |
| * * * * * * * | |
| 6605 Constrictive bronchiolitis or obliterative bronchiolitis | |
| * * * * * * * |
| Sec. | Diagnostic code No. | |
|---|---|---|
| * * * * * * * | ||
| 6605 | Added [Effective date of the Final Rule]. | |
| * * * * * * * |
| Diagnostic code No. | |
|---|---|
| * * * * * * * | |
| THE RESPIRATORY SYSTEM | |
| Airway Disorders (Trachea, Bronchi) | |
| * * * * * * * | |
| 6605 | Constrictive bronchiolitis or obliterative broncholitis. |
| * * * * * * * |
| Diagnostic code No. | |
|---|---|
| * * * * * * * | |
| Constrictive bronchiolitis or obliterative bronchiolitis | 6605 |
| * * * * * * * |