Schedule for Rating Disabilities: Evaluation of Tinnitus

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

This document proposes to amend the Department of Veterans Affairs (VA) Schedule for Rating Disabilities to state more explicitly the method of evaluation of tinnitus under diagnostic code 6260 in the portion of the rating schedule that addresses evaluation of disabilities of the ear. The intended effect of this action is to codify current standard VA practice by stating that recurrent tinnitus will be assigned only a single 10-percent evaluation, whether it is perceived in one ear, both ears, or somewhere in the head.

DATES:

Comments must be received by VA on or before November 18, 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-AK86.” 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) 273-7210.

SUPPLEMENTARY INFORMATION:

This document proposes to amend the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (the rating schedule) to state more explicitly the method of evaluation of recurrent tinnitus, diagnostic code 6260, in § 4.87, the portion of the rating schedule that addresses evaluation of disabilities of the ear. The current rating schedule directs that recurrent tinnitus be evaluated at 10 percent. A note under diagnostic code 6260 indicates that a separate evaluation for tinnitus may be combined with an evaluation under other diagnostic codes for hearing impairment or certain diseases of the ear, except when tinnitus supports an evaluation under one of those diagnostic codes. Recently, VA has received claims for two separate evaluations for tinnitus in the same individual, one for each side, when recurrent tinnitus is perceived bilaterally. To avoid any possible misunderstanding, VA is proposing to amend the rating schedule to definitively state that recurrent tinnitus is assigned only one evaluation whether it is perceived in one ear, both ears, or an indeterminate site in the head. This amendment involves no substantive change and is consistent with current practice.

“The Merck Manual” (665, 17th ed. 1999) states that tinnitus is the perception of sound in the absence of an acoustic stimulus, and the American Tinnitus Association defines tinnitus as the perception of sound when no external sound is present ( http://www.ata.org/about_tinnitus/ ). “Tinnitus: Facts, Theories, and Treatments (1982),” published by the National Academy Press, states that tinnitus is the conscious experience of a sound that originates in the head of its owner ( http://books.nap/books/0309033284/html ).

Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or “true” tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or “pseudo-tinnitus”), the sound is audible to other people, either simply by listening or with a stethoscope. Objective tinnitus commonly has a definite cause that generates the sound, such as vascular or muscular disorders. Objective tinnitus may also be due to such nonpathologic causes as noise from the temporomandibular joints, openings of the eustachian tubes, or repetitive muscle contractions.

True (subjective) tinnitus does not originate in the inner ear, although damage to the inner ear may be a precursor of subjective tinnitus. It is theorized that in true tinnitus the brain creates phantom sensations to replace missing inputs from the damaged inner ear, similar to the brain's creation of phantom pain in amputated limbs (Diseases of the Ear, H. Ludman, and T. Wright, 6th ed., chapter 11; Phantom auditory perception (tinnitus): mechanisms of generation and perception, Neuroscience Research 8:221-2, P. Jasterboff, 1990; and Mechanisms of Tinnitus. Allyn and Bacon, 1995, J. Vernon and A. Moller (Eds)). The Oregon Tinnitus Data Archive found in a study of 1630 individuals with tinnitus that 63% reported tinnitus in both ears and 11% reported it as filling the head ( http://www.ohsu.edu/ohrc-otda/95-01/data/08.html ). Therefore, in the great majority of cases, tinnitus is reported as either bilateral or undefined as to side.

True tinnitus, i.e., the perception of sound in the absence of an external stimulus, appears to arise from the brain rather than the ears. We, therefore, propose to state more explicitly that recurrent tinnitus is assigned only one evaluation whether it is perceived in one ear, both ears, or an indeterminate site in the head.

To assure that tinnitus is consistently and correctly evaluated, we propose to add a second note under diagnostic code 6260 directing that only a single evaluation be assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. We also propose to add a third note concerning the evaluation of objective tinnitus that would direct raters not to evaluate objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) under this diagnostic code, but to evaluate it as part of any underlying condition causing it.

Paperwork Reduction Act

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

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. This amendment would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Executive Order 12866

This document has been reviewed by the Office of Management and Budget under Executive Order 12866.

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.

Catalog of Federal Domestic Assistance Numbers

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

List of Subjects in 38 CFR Part 4

• Disability benefits
• 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.

Subpart B—Disability Ratings

2. In § 4.87, diagnostic code 6260 is revised to read as follows: