Custom Federal Regulations Service™

**This is supplemental material**

**for Book C of your set of**

**Federal Regulations**

Title 38, Part 4

*Schedule for Rating Disabilities*

**Veterans Benefits Administration**

Supplement No. 39

Covering period of *Federal Register* issues

through January 23, 2006

Copyright © 2006 Jonathan Publishing

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> **GENERAL INSTRUCTIONS**

Custom Federal Regulations Service™

**Supplemental Materials for *Book C***

**Code of Federal Regulations**

**Title 38, Part 4**

***Schedule for Rating Disabilities***

**Veterans Benefits Administration**

**Supplement No. 39**

25 January 2006

Covering the period of Federal Register issues

through January 23, 2006

When **Book C** was originally prepared, it was current through final
regulations published in the *Federal Register* of 24 March 1992. These
supple­mental materials are designed to keep your regulations up to date.
You should file the attached pages immediately, and record the fact that
you did so on the *Supplement Filing Record* which is at page C-8 of
Book C, *Schedule for Rating Disabilities*.

**To ensure accuracy and timeliness of your materials,**

**it is important that you follow these simple procedures:**

1\. Always file your supplemental materials immediately upon receipt.

2\. Before filing, always check the Supplement Filing Record (page C-8)
to be sure that all prior supplements have been filed. If you are
missing any supple­ments, contact the Veterans Benefits Administration at
the address listed on page C-2.

3\. After filing, enter the relevant information on the Supplement
Filing Record sheet (page C-8)---the date filed, name/initials of filer,
and date through which the *Federal Register* is covered.

4\. If as a result of a failure to file, or an undelivered supplement,
you have more than one supplement to file at a time, be certain to file
them in chronological order, lower number first.

5\. Always retain the filing instructions (simply insert them at the
back of the book) as a backup record of filing and for reference in case
of a filing error.

6\. Be certain that you *permanently discard* any pages indicated for
removal in the filing instructions in order to avoid confusion later.

To execute the filing instructions, simply remove *and throw away* the
pages listed under *Remove These Old Pages,* and replace them in each
case with the corres­pond­ing pages from this supplement listed under *Add
These New Pages*. Occasionally new pages will be added without removal
of any old material (reflecting new regulations), and occasionally old
pages will be removed with­out addition of any new material (reflecting
rescinded regulations)---in these cases the word *None* will appear in
the appropriate column.

> **FILING INSTRUCTIONS**

**Book C, Supplement No. 39**

**January 25, 2006**

*Remove these Add these Section(s)*

*[old pages]{.underline} [new pages]{.underline} [Affected]{.underline}*

**Do not file this supplement until you confirm that**

**all prior supplements have been filed**

4.26-1 to 4.27-1 4.26-1 to 4.27-1 §4.27

**4.124a-14 to 4.124a-17 4.124a-14 to 4.124a-17 §4.124a**

**Be sure to complete the**

***Supplement Filing Record* (page C-8)**

**when you have finished filing this material.**

> **HIGHLIGHTS**

**Book C, Supplement No. 39**

**January 25, 2006**

***Supplement* Highlights *references***: Where substantive changes are
made in the text of regulations, the paragraphs of *Highlights* sections
are cited at the end of the relevant section of text. Thus, if you are
reading §3.263, you will see a note at the end of that section which
reads: "Supplement *Highlights* references---6(2)." This means that
paragraph 2 of the *Highlights* section in Supplement No. 6 contains
information about the changes made in §3.263. By keeping and filing the
*Highlights* sections, you will have a reference source explaining all
substantive changes in the text of the regulations.

***Supplement frequency***: This Book C (*Schedule for Rating
Disabilities*) was originally supplemented four times a year, in
February, May, August, and November. Beginning 1 August 1995,
supplements will be issued *every month* during which a final rule
addition or modification is made to the parts of Title 38 covered by
this book. Supplements will be numbered consecutively as issued.

**Modifications in this supplement include the following:**

1\. On 20 December 2005, the VA published a final rule, effective that
same date, to amend the VA Schedule for Rating Disabilities by updating
references to diagnostic codes in two regulations. Changes:

• In §4.27, removed reference to diagnostic codes 5002--5289 and
replaced with 5002--5240; and

> • In §4.124a, under the heading *The Epilepsies*, in the table
> entitled *Mental Disorders in Epilepsies*, replaced references to
> diagnostic code 9307 with 9326.

**§4.26 Bilateral factor.**

When a partial disability results from disease or injury of both arms,
or of both legs, or of paired skeletal muscles, the ratings for the
disabilities of the right and left sides will be combined as usual, and
10 percent of this value will be added (i.e., not combined) before
proceeding with further combinations, or converting to degree of
disability. The bilateral factor will be applied to such bilateral
disabilities before other combinations are carried out and the rating
for such disabilities including the bilateral factor in this section
will be treated as 1 disability for the purpose of arranging in order of
severity and for all further combinations. For example, with
disabilities evaluated at 60 percent, 20 percent, 10 percent and 10
percent (the two 10's representing bilateral disabilities), the order of
severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent and
the 68 and 20 to 74 percent, converted to 70 percent as the final degree
of disability.

\(a\) The use of the terms "arms" and "legs" is not intended to
distinguish between the arm, forearm and hand, or the thigh, leg, and
foot, but relates to the upper extremities and lower extremities as a
whole. Thus with a compensable disability of the right thigh, for
example, amputation, and one of the left foot, for example, pes planus,
the bilateral factor applies, and similarly whenever there are
compensable disabilities affecting use of paired extremities regardless
of location or specified type of impairment.

\(b\) The correct procedure when applying the bilateral factor to
disabilities affecting both upper extremities and both lower extremities
is to combine the ratings of the disabilities affecting the 4
extremities in the order of their individual severity and apply the
bilateral factor by adding, not combining, 10 percent of the combined
value thus attained.

\(c\) The bilateral factor is not applicable unless there is partial
disability of compensable degree in each of 2 paired extremities, or
paired skeletal muscles.

**§4.27 Use of diagnostic code numbers.**

The diagnostic code numbers appearing opposite the listed ratable
disabilities are arbitrary numbers for the purpose of showing the basis
of the evaluation assigned and for statistical analysis in the
Department of Veterans Affairs, and as will be observed, extend from
5000 to a possible 9999. Great care will be exercised in the selection
of the applicable code number and in its citation on the rating sheet.
No other numbers than these listed or hereafter furnished are to be
employed for rating purposes, with an exception as described in this
section, as to unlisted conditions. When an unlisted disease, injury, or
residual condition is encountered, requiring rating by analogy, the
diagnostic code number will be "built-up" as follows: The first 2 digits
will be selected from that part of the schedule most closely identifying
the part, or system, of the body involved; the last 2 digits will be
"99" for all unlisted conditions. This procedure will facilitate a close
check of new and unlisted conditions, rated by analogy. In the selection
of code numbers, injuries will generally be represented by the number
assigned to the residual condition on the basis of which the rating is
determined. With diseases, preference is to be given to the number
assigned to the disease itself; if the rating is determined on the basis
of residual conditions, the number appropriate to the residual condition
will be added, preceded by a hyphen. Thus, rheumatoid (atrophic)
arthritis rated as ankylosis of the lumbar spine should be coded
"5002--5240." In this way, the exact source of each rating can be easily
identified. In the citation of disabilities on rating sheets, the
diagnostic terminology will be that of the medical examiner, with no
attempt to translate the terms into schedule nomenclature. Residuals of
diseases or therapeutic procedures will not be cited without reference
to the basic disease.

\[41 FR 11293, Mar. 18, 1976, as amended at 70 FR 75399, Dec. 20, 2005\]

**Supplement *Highlights* reference**: 39(1)

**[The Epilepsies]{.smallcaps}**

Rating

A thorough study of all material in §§4.121 and 4.122 of the preface and
under the ratings for epilepsy is necessary prior to any rating action.

**8910** Epilepsy, grand mal.

Rate under the general rating formula for major seizures.

**8911** Epilepsy, petit mal.

Rate under the general rating formula for minor seizures.

Note (1): A major seizure is characterized by the generalized
tonic-clonic convulsion with unconsciousness.

Note (2): A minor seizure consists of a brief interruption in
consciousness or conscious control associated with staring or rhythmic
blinking of the eyes or nodding of the head ("pure" petit mal), or
sudden jerking movements of the arms, trunk, or head (myoclonic type) or
sudden loss of postural control (akinetic type).

General Rating Formula for Major and Minor Epileptic Seizures:

Averaging at least 1 major seizure per month over the last year 100

Averaging at least 1 major seizure in 3 months over the last year;

or more than 10 minor seizures weekly 80

Averaging at least 1 major seizure in 4 months over the last year;

or 9-10 minor seizures per week 60

At least 1 major seizure in the last 6 months or 2 in the last year;

or averaging at least 5 to 8 minor seizures weekly 40

At least 1 major seizure in the last 2 years; or at least 2 minor
seizures

in the last 6 months 20

A confirmed diagnosis of epilepsy with a history of seizures 10

Note (1): When continuous medication is shown necessary for the control
of epilepsy, the minimum evaluation will be 10 percent. This rating will
not be combined with any other rating for epilepsy.

Note (2): In the presence of major and minor seizures, rate the
predominating type.

Note (3): There will be no distinction between diurnal and nocturnal
major seizures.

**8912** Epilepsy, Jacksonian and focal motor or sensory.

**8913** Epilepsy, diencephalic.

Rate as minor seizures, except in the presence of major and minor
seizures, rate the predominating type.

**8914** Epilepsy, psychomotor.

Major seizures:

Psychomotor seizures will be rated as major seizures under the general

rating formula when characterized by automatic states and/or

generalized convulsions with unconsciousness.

Minor seizures:

Psychomotor seizures will be rated as minor seizures under the general

rating formula when characterized by brief transient episodes of

random motor movements, hallucinations, perceptual illusions,

abnormalities of thinking, memory or mood, or autonomic disturbances.

*Mental Disorders in Epilepsies*: A nonpsychotic organic brain syndrome
will be rated separately under the appropriate diagnostic code (e.g.,
9304 or 9326). In the absence of a diagnosis of non-psychotic organic
psychiatric disturbance (psychotic, psychoneurotic or personality
disorder) if diagnosed and shown to be secondary to or directly
associated with epilepsy will be rated separately. The psychotic or
psychoneurotic disorder will be rated under the appropriate diagnostic
code. The personality disorder will be rated as a dementia (e.g.,
diagnostic code 9304 or 9326).

*Epilepsy and Unemployability*:

\(1\) Rating specialists must bear in mind that the epileptic, although
his or her seizures are controlled, may find employment and
rehabilitation difficult of attainment due to employer reluctance to the
hiring of the epileptic.

\(2\) Where a case is encountered with a definite history of
unemployment, full and complete development should be undertaken to
ascertain whether the epilepsy is the determining factor in his or her
inability to obtain employment.

\(3\) The assent of the claimant should first be obtained for permission
to conduct this economic and social survey. The purpose of this survey
is to secure all the relevant facts and data necessary to permit of a
true judgment as to the reason for his or her unemployment and should
include information as to:

\(a\) Education;

\(b\) Occupations prior and subsequent to service;

\(c\) Places of employment and reasons for termination;

\(d\) Wages received;

\(e\) Number of seizures.

\(4\) Upon completion of this survey and current examination, the case
should have rating board consideration. Where in the judgment of the
rating board the veteran's unemployability is due to epilepsy and
jurisdiction is not vested in that body by reason of schedular
evaluations, the case should be submitted to the Director, Compensation
and Pension Service.

(Authority: 38 U.S.C. 1155)

\[29 FR 6718, May 22, 1964, as amended at 40 FR 42540, Sept. 15, 1975;
41 FR 11302, Mar. 18, 1976; 43 FR 45362, Oct. 2, 1978; 54 FR 4282, Jan.
30, 1989; 54 FR 49755, Dec. 1, 1989; 55 FR 154, Jan. 3, 1990; 56 FR
51653, Oct. 15, 1991; 57 FR 24364, June 9, 1992; 70 FR 75399, Dec. 20,
2005\]

**Supplement *Highlights* reference**: 39(1)

*Next Section is §4.125*

Reserved