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. 35

Covering period of *Federal Register* issues

through June 22, 2004

Copyright © 2004 Jonathan Publishing

**Need Assistance?**

Printing for all supplements is performed by the United States
Government

Printing Office. Distribution is the responsibility of the

VA Forms and Publications Depot. Accordingly:

Questions concerning **[missing supplements]{.smallcaps}**, need for
**[additional books]{.smallcaps}**, and other **[distribution
list]{.smallcaps}** issues for this loose-leaf service should be
directed to:

Department of Veterans Affairs

Veterans Benefits Administration

Directives, Forms and Records Staff

Mail Code: 20S5

810 Vermont Avenue, N.W.

Washington DC 20420

Telephone: 202/273-7080

Fax: 202/275-5947

Questions concerning the **[filing instructions]{.smallcaps}** for this
loose-leaf service,

or the reporting of **[substantive errors]{.smallcaps}** in the text,

may be directed to:

Jonathan Publishing

855 Yorks Crossing

Driftwood TX 78619

Telephone: 512/858-1225

Fax: 512/858-1230

E-mail: garyknight@ev1.net

**Internet: http://www.jonpub.com**

Copyright © 2003 Jonathan Publishing

> **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. 35**

25 June 2004

Covering the period of Federal Register issues

through June 22, 2004

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. 35**

**June 25, 2004**

*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**

4.71a-19 to 4.71a-20 4.71a-19 to 4.71a-20 §4.71a

4.71a-29 to 4.71a-30 4.71a-29 to 4.71a-30 §4.71a

**Be sure to complete the**

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

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

> **HIGHLIGHTS**

**Book C, Supplement No. 35**

**June 25, 2004**

***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 10 June 2004, the VA published a final rule correction, effective
retroactively to 26 September 2003, to add text that had been
inadvertently omitted from a document published 27 August 2003 that
amended a portion of the *Schedule for Rating Disabilities* concerning
the spine. Change:

• In §4.71a, in the table entitled *The Spine*, added Notes 1 and 2
following entries under the heading *Formula for Rating Intervertebral
Disc Syndrome Based on Incapacitation Episodes*.

normal combined range of motion of the cervical spine is 340 degrees and
of the thoracolumbar spine is 240 degrees. The normal ranges of motion
for each component of spinal motion provided in this note are the
maximum that can be used for calculation of the combined range of
motion.

> **Note (3):** In exceptional cases, an examiner may state that because
> of age, body habitus, 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 supplies an
> explanation, the examiner's assessment that the range of motion is
> normal for that individual will be accepted.

**Note (4):** Round each range of motion measurement to the nearest five
degrees.

**Note (5):** For VA compensation purposes, unfavorable ankylosis is a
condition in which the entire cervical spine, the entire thoracolumbar
spine, or the entire spine is fixed in flexion or extension, 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 on the
abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or
dislocation; or neurologic symptoms due to nerve root stretching.
Fixation of a spinal segment in neutral position (zero degrees) always
represents favorable ankylosis.

**Note (6):** Separately evaluate disability of the thoracolumbar and
cervical spine segments, except when there is unfavorable ankylosis of
both segments, which will be rated as a single disability.

5235 Vertebral fracture or dislocation

5236 Sacroiliac injury and weakness

5237 Lumbosacral or cervical strain

5238 Spinal stenosis

5239 Spondylolisthesis or segmental instability

5240 Ankylosing spondylitis

5241 Spinal fusion

5242 Degenerative arthritis of the spine (see also diagnostic code 5003)

5243 Intervertebral disc syndrome

Evaluate intervertebral disc syndrome (preoperatively or
postoperatively) either under the General Rating Formula for Diseases
and Injuries of the Spine or under the Formula for Rating Intervertebral
Disc Syndrome Based on Incapacitating Episodes, whichever method results
in the higher evaluation when all disabilities are combined under §4.25.

**Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes**

With incapacitating episodes having a total duration of at least 6 weeks
during the

past 12 months 60

With incapacitating episodes having a total duration of at least 4 weeks
but less than

6 weeks during the past 12 months 40

With incapacitating episodes having a total duration of at least 2 weeks
but less than

4 weeks during the past 12 months 20

With incapacitating episodes having a total duration of at least one
week but less than

2 weeks during the past 12 months 10

**Note (1):** For purposes of evaluations under diagnostic code 5243, an
incapacitating episode is a period of acute signs and symptoms due to
intervertebral disc syndrome that requires bed rest prescribed by a
physician and treatment by a physician.

**Note (2):** If intervertebral disc syndrome is present in more than
one spinal segment, provided that the effects in each spinal segment are
clearly distinct, evaluate each segment on the basis of incapacitating
episodes or under the General Rating Formula for Diseases and Injuries
of the Spine, whichever method results in a higher evaluation for that
segment.

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

Rating

**5298** Coccyx, removal of:

Partial or complete, with painful residuals 10

Without painful residuals 0

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

\[29 FR 6718, May 22,1964, as amended at 34 FR 5062, Mar. 11, 1969; 40
FR 42536, Sept. 15, 1975; 41 FR 11294, Mar. 18, 1976; 43 FR 45350, Oct.
2, 1978; 51 FR 6411, Feb. 24, 1986; 61 FR 20439, May 7, 1996; 64 FR
32410, June 17, 1999; 67 FR 48785, July 26, 2002; 67 FR 54349, Aug. 22,
2002; 68 FR 51456, Aug. 27, 2003; 69 FR 32450, June 10, 2004\]

**Supplement *Highlights* references**: 16(1), 26(2), 30(1), 31(1),
33(1), 35(1).

**[Table II]{.smallcaps}**

**[Ratings for Multiple Losses of Extremities with Dictator's Rating
Code and 38 CFR Citation]{.smallcaps}**

Impairment of other extremity

+---------+---------+---------+---------+---------+---------+---------+
| Imp     | Ana     | Ana     | Ana     | Ana     | Ana     | Ana     |
| airment | tomical | tomical | tomical | tomical | tomical | tomical |
| of one  | loss or | loss or | loss or | loss or | loss    | loss    |
| ex      | loss of | loss of | loss of | loss of | near    | near    |
| tremity | use     | use     | use     | use     | s       | hip     |
|         | below   | below   | above   | above   | houlder | (pre    |
|         | elbow   | knee    | elbow   | knee    | (pre    | venting |
|         |         |         | (pre    | (pre    | venting | use of  |
|         |         |         | venting | venting | use of  | pros    |
|         |         |         | use of  | use of  | pros    | thesis) |
|         |         |         | pros    | pros    | thesis) |         |
|         |         |         | thesis) | thesis) |         |         |
+---------+---------+---------+---------+---------+---------+---------+
| Ana     | M Codes | L Codes | M 1/2   | L 1/2   | N Code  | M Code  |
| tomical | M-1 a,  | L-1 d,  | Code    | Code    | N-3, 38 | M-3 c,  |
| loss or | b,      | e, f,   | M-5,    | L-2 c,  | CFR     | 38 CFR  |
| loss of |         |         |         |         | 3       | 3.3     |
| use     | or c,   | or g,   | 38 CFR  | 38 CFR  | .350(f) | 50(f)(1 |
| below   | 38 CFR  | 38 CFR  | 3.350(f | 3       | (1)(xi) | )(viii) |
| elbow   | 3.350(c | 3       | )(1)(x) | .350(f) |         |         |
|         | )(1)(i) | .350(b) |         | (1)(vi) |         |         |
+---------+---------+---------+---------+---------+---------+---------+
| Ana     | 3       | L Codes | L 1/2   | L 1/2   | M Code  | M Code  |
| tomical | .350(b) | L-1 a,  | Code    | Code    | M-3 b,  | M-3 a,  |
| loss or |         | b,      | L-2 b,  | L-2 a,  |         |         |
| loss of |         |         |         |         | 38 CFR  | 38 CFR  |
| use     |         | or c,   | 38 CFR  | 38 CFR  | 3       | 3       |
| below   |         | 38 CFR  | 3.350(f | 3       | .350(f) | .350(f) |
| knee    |         | 3.350   | )(1)(i) | .350(f) | (1)(ii) |         |
|         |         | (       |         | (1)(iv) |         |         |
|         |         | 1)(iii) |         |         |         |         |
+---------+---------+---------+---------+---------+---------+---------+
| Ana     |         |         | N Code  | M Code  | N 1/2   | M 1/2   |
| tomical |         |         | N-1,    | M-2 a,  | Code    | Code    |
| loss or |         |         |         |         | N-4     | M-4 c,  |
| loss of |         |         | 38 CFR  | 38 CFR  |         |         |
| use     |         |         | 3.35    | 3       | 38 CFR  | 38 CFR  |
| above   |         |         | 0(d)(1) | .350(c) | 3       | 3       |
| elbow   |         |         |         | (       | .350(f) | .350(f) |
| (pre    |         |         |         | 1)(iii) | (1)(ix) |         |
| venting |         |         |         |         |         | (1)(xi) |
| use of  |         |         |         |         |         |         |
| pros    |         |         |         |         |         |         |
| thesis) |         |         |         |         |         |         |
+---------+---------+---------+---------+---------+---------+---------+
| Ana     |         |         |         | M Code  | M 1/2   | M 1/2   |
| tomical |         |         |         | M-2 a,  | Code    | Code    |
| loss or |         |         |         |         | M-4 b,  | M-4 a,  |
| loss of |         |         |         | 38 CFR  |         |         |
| use     |         |         |         | 3       | 38 CFR  | 38 CFR  |
| above   |         |         |         | .350(c) | 3       | 3       |
| knee    |         |         |         | (1)(ii) | .350(f) | .350(f) |
| (pre    |         |         |         |         |         |         |
| venting |         |         |         |         | (       | (1)(v)  |
| use of  |         |         |         |         | 1)(vii) |         |
| pros    |         |         |         |         |         |         |
| thesis) |         |         |         |         |         |         |
+---------+---------+---------+---------+---------+---------+---------+
| Ana     |         |         |         |         | O Code  | N Code  |
| tomical |         |         |         |         | O-1,    | N-2 b,  |
| loss    |         |         |         |         |         |         |
| near    |         |         |         |         | 38 CFR  | 38 CFR  |
| s       |         |         |         |         | 3       | 3       |
| houlder |         |         |         |         | .350(e) | .350(d) |
| (pre    |         |         |         |         | (1)(i)  | (3)     |
| venting |         |         |         |         |         |         |
| use of  |         |         |         |         |         |         |
| pros    |         |         |         |         |         |         |
| thesis) |         |         |         |         |         |         |
+---------+---------+---------+---------+---------+---------+---------+
| Ana     |         |         |         |         |         | N Code  |
| tomical |         |         |         |         |         | N-2 a,  |
| loss    |         |         |         |         |         |         |
| near    |         |         |         |         |         | 38 CFR  |
| hip     |         |         |         |         |         | 3       |
| (pre    |         |         |         |         |         | .350(d) |
| venting |         |         |         |         |         | (2)     |
| use of  |         |         |         |         |         |         |
| pros    |         |         |         |         |         |         |
| thesis) |         |         |         |         |         |         |
+---------+---------+---------+---------+---------+---------+---------+

Note: Need for aid attendance or permanently bedridden qualifies for
subpar. L. Code L-1 h, i (38 CFR 3.350(b)). Paraplegia with loss of use
of both lower extremities and loss of anal and bladder sphincter control
qualifies for subpar. O. Code O-2 (38 CFR 3.350(e)(2). Where there are
additional disabilities rated 50% or 100%, or anatomical or loss of use
of a third extremity see 38 CFR 3.350(f)(3), (4), or (5). (Authority: 38
U.S.C. 1115)