Schedule for Rating Disabilities; The Spine

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

This document proposes to amend the Department of Veterans Affairs (VA) Schedule for Rating Disabilities by revising that portion of the Musculoskeletal System that addresses disabilities of the spine. The intended effect of this action is to update this portion of the rating schedule to ensure that it uses current medical terminology and unambiguous criteria, and that it reflects medical advances that have occurred since the last review.

DATES:

Comments must be received on or before November 4, 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-AJ60.” 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, Policy and Regulations Staff (211A), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420, (202) 273-7215.

SUPPLEMENTARY INFORMATION:

VA proposes to amend its Schedule for Rating Disabilities by revising that portion of the Musculoskeletal System that addresses disabilities of the spine. VA published an advance notice of proposed rulemaking in the Federal Register on December 28, 1990 (55 FR 53315), advising the public that it was preparing to revise and update the schedule for rating disabilities of the orthopedic system. What is referred to as “The Orthopedic System” in the title of the advance notice of proposed rulemaking is part of the Musculoskeletal System portion of the rating schedule. The rest of the Musculoskeletal System portion addresses muscle injuries. The revision of the Muscle Injuries portion of the Musculoskeletal System was published as a final rule in the Federal Register of June 3, 1997 (62 FR 30235).

In addition to publishing an advance notice, VA also contracted with an outside consultant to recommend changes to the evaluation criteria to ensure that the schedule uses current medical terminology and unambiguous criteria, and that it reflects medical advances that have occurred since the last review. The consultant convened a panel of non-VA specialists to review that portion of the rating schedule dealing with the musculoskeletal system in order to formulate recommendations. The comments of the consultants regarding disabilities of the spine are incorporated into the discussions below.

In response to the advance notice of proposed rulemaking, VA received one comment focusing on the spine. The commenter suggested VA adopt an evaluation system with eight progressive grades of spine disability that would be based on a variety of findings, including muscle guarding, radiculopathy, muscle atrophy and other impairments of the lower extremities, instability of the spine, cauda equina syndrome, paraplegia, and bowel and bladder involvement. The commenter's proposed system would assign one evaluation based on presence or absence of these factors. While such a grading system may be useful for clinical purposes, it is not feasible for rating purposes because it assigns one grade or level of disability that is based not only on orthopedic disabilities of the spine, but also on gastrointestinal, genitourinary, and neurologic disabilities, all of which have specific separate evaluation criteria in the Digestive, Genitourinary, and Neurologic System sections of the rating schedule. For this reason, we do not propose to adopt the eight-grade method of categorizing spine disabilities. However, we do propose to revise the evaluation criteria for rating disabilities of the spine by establishing a general rating formula that will apply to all diseases and injuries of the spine. Intervertebral disc syndrome was addressed in a separate rulemaking, RIN 2900-AI22. The final revision of intervertebral disc syndrome was published in the Federal Register on August 22, 2002 at 67 FR 54345. This proposed regulatory amendment would make editorial changes to the evaluation criteria for intervertebral disc syndrome to make them compatible with the new general rating formula. This does not, however, represent any substantive change to the recently adopted evaluation criteria for intervertebral disc syndrome.

We propose to add a note following the general rating formula that would direct the rating agency to separately evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, and sensory or motor loss of the extremities. Such evaluations would be based on criteria in the Digestive, Genitourinary, and Neurologic System portions of the rating schedule, depending on the specific findings. Bowel and bladder impairment and sensory or motor loss in extremities are among the neurologic impairments that most commonly result from disease or injury of the spine. However, a great variety of neurologic disabilities might stem from diseases and injuries of the spine. In view of this fact, and the many different sets of evaluation criteria that might be needed, it would be impractical to repeat them all in the orthopedic part of the schedule.

The current rating schedule provides diagnostic codes for eleven spine conditions. Four codes represent diagnoses of spine disabilities: Vertebral fracture (diagnostic code 5285); intervertebral disc syndrome (diagnostic code 5293); sacroiliac injury and weakness (diagnostic code 5294); lumbosacral strain (diagnostic code 5295). The seven remaining codes concern findings of ankylosis (bony fixation) or limitation of motion of the spine rather than diagnoses. The codes representing ankylosis or limitation of motion of the spine include current diagnostic codes 5286 (ankylosis of entire spine), 5287 (ankylosis of cervical spine), 5288 (ankylosis of dorsal spine), 5289 (ankylosis of lumbar spine), 5290 (limitation of motion of cervical spine), 5291 (limitation of motion of dorsal spine), and 5292 (limitation of motion of lumbar spine). Evaluations involving ankylosis are assigned based on whether the ankylosis is favorable or unfavorable, without defining those terms, and with separate evaluations provided for lumbar, dorsal and cervical spine. Evaluations involving limitation of motion of the lumbar, dorsal and cervical spine are based on such indefinite criteria as “slight,” “moderate,” or “severe” limitation of motion. We propose to delete the seven diagnostic codes (5286 through 5292) that involve findings of ankylosis or limitation of motion of the spine because, rather than representing conditions or diagnoses, they are findings that are common to a variety of spinal conditions. The general rating formula we are proposing will include objective criteria for evaluating limitation of motion and ankylosis and will eliminate indefinite criteria and terminology. We also propose to define favorable ankylosis and unfavorable ankylosis in a note which will be explained in a separate paragraph of this summary.

Our contract consultants recommended that we add spinal stenosis (narrowing of the spinal canal, with associated symptoms) and spondylolisthesis or segmental instability to the updated schedule. Consistent with our consultants' recommendations, we propose to add these and several other spine disabilities that are distinct from those currently listed in the rating schedule and that occur frequently enough to warrant inclusion.

In order to add these spine disabilities and still group evaluation criteria for all injuries and disabilities of the spine together in one section of the rating schedule, we propose to move all diagnostic codes for spinal disabilities and assign them new diagnostic codes ranging from diagnostic code 5235 through diagnostic code 5243. We propose to provide new diagnostic codes for the following conditions that are already in the Schedule: 5235 for vertebral fracture, 5236 for sacroiliac injury and weakness, 5237 for lumbosacral strain, and 5243 for intervertebral disc syndrome. The disabilities we propose to add are: spinal stenosis (a narrowing of the central spinal canal that causes pressure on the spinal cord and/or nerve roots, most commonly due to degenerative arthritis or degenerative disc disease) (diagnostic code 5238), spondylolisthesis or segmental instability (slipping of all or part of one vertebra forward on another vertebra that may compress spinal nerves) (diagnostic code 5239), ankylosing spondylitis (a rheumatic disease that affects the spine and sacroiliac joints and that may have extra-articular (outside the joints) findings) (diagnostic code 5240), and spinal fusion (diagnostic code 5241). We also propose to add degenerative arthritis of the spine (diagnostic code 5242), a common condition that will ordinarily be evaluated under the general rating formula for diseases and injuries of the spine. There is currently a single diagnostic code (5003) for degenerative arthritis of any joint, with evaluation criteria based on X-ray findings, or X-ray findings plus limitation of motion. The general rating formula we are proposing will provide criteria for evaluating degenerative arthritis of the spine except when X-ray findings, as discussed under diagnostic code 5003, are the sole basis of its evaluation.

Diagnostic code 5285 is currently titled “Vertebra, fracture of, residuals.” Our contract consultants recommended that we include dislocation of a vertebra under this diagnostic code because it may result in the same type of disability as a fracture, and we accordingly propose to move this disability to diagnostic code 5235, as previously explained, and rename it “Vertebral fracture or dislocation.” There are currently two defined evaluation levels for vertebral fractures under this code: 100 percent, based on the criteria “With cord involvement, bedridden, or requiring long leg braces'; and 60 percent, based on the criteria “Without cord involvement; abnormal mobility requiring neck brace (jury mast).” There is also a direction to rate other cases based on limitation of motion or muscle spasm, with 10 percent to be added to the rating if there is demonstrable deformity of the vertebral body.

Our contract consultants suggested we assign a 100-percent rating for vertebral fracture or dislocation if an individual is “non-ambulatory,” rather than if he or she requires long leg braces, because devices other than leg braces are commonly used. But because a veteran who is non-ambulatory may warrant any of several different evaluations, depending on the specific findings, we do not propose to adopt the consultants' suggestion. Instead, to ensure that all disabilities resulting from fracture or dislocation of the spine are taken into account in the evaluation, we propose to evaluate all disabilities of the spine, including fractures and dislocations of the spine, using a general formula that will be based on the orthopedic findings such as limitation of motion, ankylosis, muscle spasm, guarding, and tenderness, present in the individual case. The neurologic disabilities such as bowel or bladder impairment that result from spinal fracture or dislocation will be separately evaluated, as discussed above.

Vertebral fracture with abnormal mobility requiring a neck brace, which is one of the criteria in the current schedule for a 60-percent evaluation for vertebral fracture, is a condition that ordinarily occurs only during the acute or convalescent phase of an injury. This temporary condition can therefore be evaluated under the provisions of 38 CFR 4.28 (“Prestabilization rating from date of discharge from service”), 4.29 (“Ratings for service-connected disabilities requiring hospital treatment or observation”), or 4.30 (“Convalescent ratings”), and we propose to remove it from the evaluation criteria.

Our contract consultants also recommended deleting the 60 percent level of evaluation for vertebral fracture without cord involvement because such a condition is not itself disabling. Under the proposed general rating formula, fractures without cord involvement would be rated on the basis of findings of limitation of motion, ankylosis, muscle spasm, guarding, and tenderness, at an evaluation level of zero, 10, 20, 30, 50 or 100 percent, depending on the extent and severity of findings.

The consultants stated that fracture or dislocation of the vertebrae is disabling only when there are residuals, and pointed out that completely asymptomatic fractures of vertebrae are not rare. A recent medical textbook on disability evaluation stated that vertebral fractures with loss of height of the vertebral body of 50-percent or less ordinarily do not require surgery, heal uneventfully, and are compatible with the resumption of normal activities after healing (“Disability Evaluation,” 292-3 (Stephen L. Demeter, M.D., Gunnar B.J. Anderson, M.D., Ph.D., and George M. Smith, M.D., 1996)). We therefore propose to remove the current direction to add 10-percent to an evaluation for vertebral fracture based on demonstrable deformity of the vertebral body. Instead, we propose to make “vertebral body fracture with loss of 50-percent or more of the height” one of the criteria for a 10-percent evaluation. This will apply to vertebral fractures of that extent only when there are symptoms such as pain, stiffness, or aching in the area of the fracture. Otherwise, disability due to a vertebral body compression fracture would be evaluated at any appropriate level of evaluation, depending on the findings. This will ensure that evaluations are based on the actual signs and symptoms present, rather than solely on the presence of X-ray abnormalities, a finding not always indicative of actual disability.

Our contract consultants recommended adding the words “surgical or non-surgical” to the current criteria for ankylosis of the spine. However, because the evaluation would be based on the same criteria whatever the cause of the ankylosis, we do not propose to adopt this suggestion. Instead, we propose to incorporate the current evaluation criteria for ankylosis of the spine into the proposed general rating formula without substantive change. We also propose to add a note following the formula defining unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion (i.e., bent forward) or extension (i.e., bent backward), and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin (ribs) on the abdomen; dyspnea (shortness of breath) or dysphagia (difficulty swallowing); atlantoaxial (the atlas and axis otherwise known as the first and second cervical vertebrae) or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. These signs and symptoms, which may be indications for spinal surgery, represent disability greater than limitation of motion of the spine alone. A spinal segment fixed in neutral position (for purposes of spinal range of motion, generally at zero degrees) is in favorable ankylosis (American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984)).

Our contract consultants recommended deleting zero percent and ten percent evaluations for “slight” limitation of motion under current diagnostic codes 5290, 5291, and 5292 because such minor conditions are difficult to distinguish from normal and do not result in significant impairment. The current evaluation criteria for limitation of motion of segments of the spine—“slight,” “moderate,” and “severe”—are subjective. We propose to remove those terms and specify in the general rating formula the exact extent of limitation of motion of either forward flexion or of the combined range of motion (the sum of the range of flexion, extension, left and right rotation, and left and right lateral flexion) that warrants each level of evaluation. This will ensure consistent evaluations.

We further propose to add a note following the general rating formula that would specify the normal ranges of motion for the cervical and thoracolumbar spine and a new plate (Plate V) with diagrams demonstrating the ranges of motion. We propose to define the normal range of motion for the cervical spine as: forward flexion, zero to 45 degrees; extension, zero to 45 degrees; left and right lateral flexion, zero to 45 degrees; and left and right rotation, zero to 80 degrees. We propose to define the normal range of motion for the thoracolumbar spine as: flexion, zero to 90 degrees; extension, zero to 30 degrees; left and right lateral flexion, zero to 30 degrees; and left and right rotation, zero to 30 degrees. These ranges of motion are based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984), which is the last edition of the Guides that measured range of motion of the spine using a goniometer. Subsequent editions of the Guides use an inclinometer for spine measurements, in part, they state, because it is difficult to measure movements of the small joints of the spine using a goniometer. The Veterans Health Administration (VHA) has advised us that obtaining consistent and accurate measurements of the range of motion of the spine using an inclinometer is technically difficult and that measurement by means of a goniometer is the current and preferred method of measurement in VHA because of ease of use and accuracy. Since measurement of the movement of the small or individual joints of the spine is not required by the evaluation criteria, and uniformity and consistency of measurements of range of motion are important for VA compensation purposes, we propose to require the use of a goniometer to determine the range of motion of the spine and to establish the normal range of motion based on measurements using a goniometer. Since goniometer measurements are shown in five degree increments, we propose to add a note to specify that each range of motion measurement be rounded to the nearest five degrees.

We propose that the general rating formula provide criteria for the cervical and thoracolumbar spinal segments only, excluding a separate set of criteria for the thoracic (or dorsal) segment of the spine. The thoracic segment of the spine consists of the twelve thoracic vertebrae. Because the thoracic and lumbar segments ordinarily move as a unit, it is clinically difficult to separate the range of movement of one from that of the other. This combination of segments is also used in the 1984 AMA Guides. We also propose to replace the term “dorsal” with the term “thoracic” throughout this section, in keeping with current medical terminology.

The current rating schedule states that ratings for ankylosis or limitation of motion shall not be assigned for more than one spinal segment by reason of involvement of only the first or last vertebrae of an adjacent segment. Because we propose to eliminate a separate evaluation for the thoracic spine, the vertebrae involved are the last cervical vertebra (C-7), and the first thoracic vertebra (T-1). Disability in both segments could exist, even if only C-7 or T-1 is involved. Separate evaluations for the cervical spine and the thoracolumbar spine should not be precluded in this situation if disability in both segments exists. Therefore, we propose to eliminate this provision.

Current diagnostic code 5295 (lumbosacral strain) supports evaluations from zero to forty percent, based on pain, muscle spasm, limitation of motion, listing of the spine, loss of lateral motion with osteoarthritic changes, etc. We propose to move this disability to diagnostic code 5237 and evaluate lumbosacral strain under the general rating formula, which would include criteria adequate for its evaluation.

The proposed general rating formula for diseases and injuries of the spine would apply to spinal stenosis, spondylolisthesis, lumbosacral strain, spinal fracture or dislocation, spinal fusion of single or multiple levels, ankylosing spondylitis, sacroiliac injury and weakness, degenerative arthritis (see also diagnostic code 5003) and, in part, intervertebral disc syndrome, which was revised in a separate rulemaking. The rating formula would be used when any of these conditions results in symptoms such as pain (with or without radiation), stiffness, or aching of the spine due to residuals of injury or disease. It would provide evaluation levels of zero, ten, twenty, thirty, forty, fifty, and one hundred percent, based on limitation of motion of the spine, either limitation of forward flexion alone, or limitation of the combined range of motion; the severity of ankylosis; and on the extent of muscle spasm, guarding, or localized tenderness. We propose no change from the current schedule in the overall possible range of evaluations for limitation of motion or ankylosis, but propose more objective criteria in order to ensure more consistent evaluations.

Because of the new general rating formula we are proposing, we also propose to revise the introductory language used under intervertebral disc syndrome. It currently states, “Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.” We propose to change it to “Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 evaluations under the General Rating Formula for Diseases and Injuries of the Spine along with evaluations for all other disabilities, whichever method results in the higher evaluation.”

We propose to provide additional rating guidance through the use of several notes following the rating formula. The first note would direct that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, be separately evaluated. The second note would define, for VA compensation purposes, the normal ranges of motion for the cervical and thoracolumbar spinal segments and state that the normal combined range of motion for the cervical spine is 340 degrees and for the lumbar spine is 240 degrees and would state that the normal ranges of motion for each component of spinal motion provided are the maximum that can be used for calculation of the combined range of motion. The third note would state that in exceptional cases, an examiner may state that because of age, body habitus (physique, posture, and position), neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual even though it does not conform to the normal range of motion stated in Note 2. Provided that the examiner furnishes an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. The fourth note would state that for evaluation purposes, measurement of range of motion would be rounded to the nearest 5 degrees. The fifth note would define favorable and unfavorable ankylosis, for VA compensation purposes, as described above. The sixth note would direct that disability of the thoracolumbar and cervical spine segments be evaluated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. This exception is proposed because unfavorable ankylosis of a single segment can be compensated for to some extent by the other spinal segment, even if it is favorably ankylosed. However, if both segments are ankylosed in an unfavorable position, no compensation is possible, and the overall disability is total. Separately combining unfavorable ankylosis of each segment would result in an evaluation of only 70 percent, a level which is not commensurate with the extent of disability.

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 document has been reviewed by the Office of Management and Budget under 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. 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.

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 forth in the preamble, VA proposes to amend 38 CFR part 4 (subpart B) as follows:

PART 4—SCHEDULE FOR RATING DISABILITIES

Subpart B—Disability Ratings

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

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

2. In § 4.71a, the table “The Spine” is revised and is transferred so that it precedes the table “The Hip and Thigh'; and Plate V is added immediately following the table “The Spine”, to read as follows: