Schedule for Rating Disabilities; Evaluation of Multiple Scars

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

This document proposes to amend that portion of the Department of Veterans Affairs (VA) Schedule for Rating Disabilities that addresses the Skin in order to clarify how to evaluate multiple superficial or deep scars in a uniform and consistent manner.

DATES:

Comments must be received by VA on or before December 30, 2002.

ADDRESSES:

Mail or hand-deliver written comments to: Director, Office of Regulations Management (02D), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1154, Washington, DC 20420; or fax comments to (202) 273-9289; or e-mail comments to OGCRegulations@mail.va.gov. Comments should indicate that they are submitted in response to “RIN 2900-AL32.” All comments received will be available for public inspection in the Office of Regulations Management, Room 1158, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT:

Caroll McBrine, M.D., Consultant, Regulations Staff (211A), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420, (202) 273-7230.

SUPPLEMENTARY INFORMATION:

This document proposes to amend the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (38 CFR part 4) by revising § 4.118, that portion of the Schedule that addresses scars. It would clarify the method of evaluating multiple superficial and deep scars and provide directions that promote consistent evaluations.

A current note under diagnostic codes 7801 (scars, other than head, face, or neck, that are deep or that cause limited motion) and 7802 (scars, other than head, face, or neck, that are superficial and that do not cause limited motion) in § 4.118 of VA's Schedule for Rating Disabilities (38 CFR part 4) directs that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, be separately rated and combined in accordance with 38 CFR 4.25 (Combined ratings table).

The current rating schedule provides an evaluation level of 10 percent under diagnostic code 7803 for superficial unstable scars and under diagnostic code 7804 for superficial painful scars. However, it provides no guidance on whether or not each painful or unstable scar, no matter how small or close together, should be separately evaluated. Examples where this might be an issue are multiple scars stemming from a grenade explosion or from certain surgical procedures, such as numerous ligations of varicose veins on a single leg. This lack of guidance has led to inconsistent evaluations because raters are unsure whether each unstable or painful scar calls for a separate evaluation. Therefore, we propose to revise the rating schedule to clarify how multiple superficial unstable or painful scars are to be evaluated.

The provision concerning the evaluation of multiple scars under diagnostic codes 7801 and 7802 has been in effect for many years. Diagnostic codes 7803 and 7804 both address superficial scars, which are, by virtue of the lesser extent of tissue damage, inherently less seriously disabling than deep scars, which are evaluated under diagnostic code 7801. It would, therefore, be neither appropriate nor internally consistent to assign a separate evaluation for each painful or unstable superficial scar, while assigning only a single evaluation for multiple deep scars, unless they are in widely separated areas. Disproportionately high evaluations for superficial scars would result if that were done. Therefore, we propose to evaluate multiple superficial scars under diagnostic codes 7803 and 7804 in the same manner that multiple deep and superficial scars are evaluated under diagnostic codes 7801 and 7802. The issues related to evaluation are similar, and evaluating multiple scars of all four types in the same manner would promote fair and consistent handling of multiple scars, result in equitable evaluations, and remove any ambiguity about their evaluation. We propose to provide three notes at the beginning of § 4.118 providing directions for evaluating multiple scars evaluated under diagnostic codes 7801, 7802, 7803, and 7804.

The first note would explain that scars located in two or more of the following locations are considered to be in widely separated areas of the body: the anterior surface of the left upper extremity, the anterior surface of the right upper extremity, the posterior surface of the left upper extremity, the posterior surface of the right upper extremity, the anterior surface of the left lower extremity, the anterior surface of the right lower extremity, the posterior surface of the left lower extremity, the posterior surface of the right lower extremity, the anterior surface of the trunk, the posterior surface of the trunk, and the head, face, and neck. This represents a rewording of part of the current note under diagnostic codes 7801 and 7802.

The second note would direct raters to assign a single evaluation for all superficial scars in each widely separated area of the body. This is also a rewording of part of the current note under diagnostic codes 7801 and 7802, and would apply to diagnostic codes 7802, 7803, and 7804, the three codes under which superficial scars are evaluated. Since there is the possibility that one or more multiple superficial scars might have characteristics that would allow evaluation under more than one of the diagnostic codes from 7802 to 7804, the note also directs raters to increase the evaluation for scar(s) in each widely separated area of the body by 10 percent if any of the scars in a given area meet the criteria for evaluation under at least two diagnostic codes (among 7802, 7803, or 7804).

The third note would apply to deep scars and directs raters to assign a single evaluation for all deep scars in each widely separated area of the body. This is not a substantive change from the current direction.

We propose an additional change under diagnostic code 7801 in order to eliminate possible confusion about scars that fall between the sizes indicated at various percentage levels. Ten percent would be assigned for area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), 20 percent for area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.), 30 percent for area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.), and 40 percent for area or areas of 144 square inches (929 sq. cm.) or greater.

Unfunded Mandates

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Executive Order 12866

This regulatory amendment has been reviewed by the Office of Management and Budget under the provisions of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993.

Regulatory Flexibility Act

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

(The Catalog of Federal Domestic Assistance program numbers are 64.104 and 64.109.)

List of Subjects in 38 CFR Part 4

• Disability benefits
• Individuals with disabilities
• Pensions
• Veterans

For the reasons set out in the preamble, 38 CFR part 4, subpart B, is proposed to be amended as set forth below:

PART 4—SCHEDULE FOR RATING DISABILITIES

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

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

2. Section 4.118 is amended by:

A. Adding three Notes immediately before diagnostic code 7800.

B. Revising diagnostic codes 7801 and 7802.

The addition and revision read as follows: