[Federal Register Volume 89, Number 177 (Thursday, September 12, 2024)]
[Proposed Rules]
[Pages 74162-74164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20542]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AQ72


Schedule for Rating Disabilities--Ear, Nose, Throat, and 
Audiology Disabilities; Special Provisions Regarding Evaluation of 
Respiratory Conditions; Schedule for Rating Disabilities--Respiratory 
System

AGENCY: Department of Veterans Affairs.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The Department of Veterans Affairs (VA) is issuing a 
supplemental notice of proposed rulemaking (SNPRM) that proposes to add 
a diagnostic code (DC) for constrictive bronchiolitis (or obliterative 
bronchiolitis) (CB) to the regulations that govern the respiratory 
system.

DATES: Comments must be received on or before October 15, 2024.

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
www.regulations.gov as soon as possible after they have been received. 
VA will not post on Regulations.gov public comments that make threats 
to individuals or institutions or suggest that the commenter will take 
actions to harm an individual. VA encourages individuals not to submit 
duplicative comments; however, we will post comments from multiple 
unique commenters even if the content is identical or nearly identical 
to other comments. Any public comment received after the comment 
period's closing date is considered late and will not be considered in 
the final rulemaking. In accordance with the Providing Accountability 
Through Transparency Act of 2023, a plain language summary (not more 
than 100 words in length) of this SNPRM is available at 
www.regulations.gov, under RIN 2900-AQ72.

FOR FURTHER INFORMATION CONTACT: Rodney Grimm and Terence Koontzy, 
Regulations Analysts, VASRD Regulations Staff (218A), Compensation 
Service (21C), Department of Veterans Affairs, 810 Vermont Avenue NW, 
Washington, DC 20420, (202) 461-9700. (This is not a toll-free 
telephone number.)

SUPPLEMENTARY INFORMATION: On February 15, 2022, VA published a 
proposed rulemaking in the Federal Register (See 87 FR 8474) that 
proposes to amend its regulations that govern the ear, nose, throat, 
audiology, and respiratory systems. Within this rulemaking, VA proposed 
to add a General Rating Formula for Respiratory Conditions to evaluate 
several respiratory conditions currently contained within 38 CFR 4.97, 
Schedule of ratings--respiratory system. VA will address all the public 
comments received on the proposed rule and any public comments VA 
receives on this SNPRM in the final rulemaking.

I. A Diagnostic Code (DC) for Constrictive Bronchiolitis (CB)

    On August 10, 2022, the Sergeant First Class Heath Robinson 
Honoring our Promise to Address Comprehensive Toxics (PACT) Act, Public 
Law 117-168, was signed into law to improve access to VA benefits and 
health care for Veterans who were exposed to toxic substances during 
their military service. This action occurred after VA published its 
proposed rule to update Sec.  4.97. Section 406 of the PACT Act added 
38 U.S.C 1120 to establish presumptive service connection for diseases 
related to exposure to burn pit and other toxins. Among the respiratory 
conditions included within section 406, CB is the only condition 
without its own DC within the VA Schedule for Rating Disabilities 
(VASRD). Therefore, VA is proposing in this SNPRM to add DC 6605 for 
CB. The CB addition is the only proposal of this SNPRM, and VA is 
seeking public comment on this issue only.
    At present, VA does not have a specific DC for CB. When VA 
encounters disabilities not listed in the VASRD, VA rates them 
analogously to a listed condition that is closely related (similar 
anatomical location, impacted functionality, and/or symptomology) in 
accordance with 38 CFR 4.20. Thus, VA currently evaluates CB under one 
of the closely related respiratory conditions

[[Page 74163]]

found under Sec.  4.97. Although Sec.  4.20 allows VA to appropriately 
evaluate CB, the addition of a unique DC will enable VA to easily track 
claims and decision outcomes for this condition.

II. Rating CB

    VA currently uses pulmonary function test (PFTs) as the primary 
evaluative criteria for many of the respiratory conditions found under 
Sec.  4.97 because medical researchers suggest that ``[PFTs] are the 
cornerstone for evaluating respiratory impairment.'' See Sood, A. 
(2014). Performing a lung disability evaluation: How, when, and why?. 
Journal of Occupational and Environmental Medicine, 56 Suppl 10(0 10), 
S23-S29. Doi: 10.1097/JOM.0000000000000282. The proposed rule published 
on February 15, 2022, set forth a General Rating Formula for 
Respiratory Conditions to evaluate respiratory conditions based on PFT 
findings, maximum oxygen consumption, or metabolic equivalents. See 87 
FR 8476. VA proposes to rate CB using that General Rating Formula.
    To be clear, this SNPRM does not change VA's proposal for the 
General Rating Formula; it simply adds for CB a DC that would use the 
General Rating Formula. To reiterate, VA is seeking comments on the CB 
issue only, to include whether the proposed General Rating Formula for 
Respiratory Conditions is appropriate for evaluating CB.

Executive Orders 12866, 13563 and 14094

    Executive Order 12866 (Regulatory Planning and Review) directs 
agencies to assess the costs and benefits of available regulatory 
alternatives and, when regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, and other advantages; 
distributive impacts; and equity). Executive Order 13563 (Improving 
Regulation and Regulatory Review) emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. Executive Order 14094 (Executive Order on 
Modernizing Regulatory Review) supplements and reaffirms the 
principles, structures, and definitions governing contemporary 
regulatory review established in Executive Order 12866 of September 30, 
1993 (Regulatory Planning and Review), and Executive Order 13563 of 
January 18, 2011 (Improving Regulation and Regulatory Review). The 
Office of Information and Regulatory Affairs has determined that this 
rulemaking is a significant regulatory action under Executive Order 
12866, as amended by Executive Order 14094. The Regulatory Impact 
Analysis associated with this rulemaking can be found as a supporting 
document at www.regulations.gov.

Regulatory Flexibility Act

    The added DC contained in this SNPRM would not have a significant 
economic impact on a substantial number of small entities because only 
VA officials process and assign DCs for Veterans. On this basis, the 
Secretary hereby certifies that this SNPRM would not have a significant 
economic impact on a substantial number of small entities as they are 
defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). 
Therefore, pursuant to 5 U.S.C. 605(b), the initial and final 
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do 
not apply.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This SNPRM would have no such effect on 
State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    This SNPRM contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Assistance Listing

    The Assistance Listing numbers and titles for this proposed rule 
are 64.104, Pension for Non-Service-Connected Disability for Veterans; 
64.109, Veterans Compensation for Service-Connected Disability; and 
64.110, Veterans Dependency and Indemnity Compensation for Service-
Connected Death.

List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on September 5, 2024, and authorized the undersigned to 
sign and submit the document to the Office of the Federal Register for 
publication electronically as an official document of the Department of 
Veterans Affairs.

Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA proposes to amend 38 CFR 
part 4 as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

0
1. The authority citation for part 4, subpart B continues to read as 
follows:

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

Subpart B--Disability Ratings

0
2. Revise Sec.  4.96 by revising paragraph (c) to read as follows:


Sec.  4.96  Special provisions regarding evaluation of respiratory 
conditions.

* * * * *
    (c) Special provisions for the application of evaluation criteria 
for diagnostic codes 6600 through 6605, 6731, 6820, 6825 through 6833, 
6840 through 6846, and 6848.
* * * * *
0
3. Amend Sec.  4.97 by adding, in numerical order, an entry for 
diagnostic code 6605 to read as follows:


Sec.  4.97  Schedule of ratings-respiratory system.

[[Page 74164]]



------------------------------------------------------------------------
                                                       Rating
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
                         INTRINSIC LUNG DISEASES
                   Airway Disorders (Trachea, Bronchi)
------------------------------------------------------------------------
 
                              * * * * * * *
6605 Constrictive bronchiolitis or
 obliterative bronchiolitis.
 
                              * * * * * * *
------------------------------------------------------------------------

0
4. Amend appendix A to part 4 by adding, in numerical order, an entry 
for diagnostic code 6605 to read as follows:

Appendix A to Part 4--Table of Amendments and Effective Dates Since 
1946

----------------------------------------------------------------------------------------------------------------
                    Sec.                      Diagnostic code No.
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
                                                             6605  Added [Effective date of the Final Rule].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
5. Amend appendix B to part 4 by adding, in numerical order, an entry 
for diagnostic code 6605 to read as follows:

Appendix B to Part 4--Numerical Index of Disabilities

------------------------------------------------------------------------
     Diagnostic code No.
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
                         THE RESPIRATORY SYSTEM
                   Airway Disorders (Trachea, Bronchi)
------------------------------------------------------------------------
 
                              * * * * * * *
6605........................  Constrictive bronchiolitis or obliterative
                               broncholitis.
 
                              * * * * * * *
------------------------------------------------------------------------

0
6. Amend appendix C to part 4 by adding, in numerical order, an entry 
for diagnostic code 6605 to read as follows:

Appendix C to Part 4--Alphabetical Index of Disabilities

------------------------------------------------------------------------
                                                     Diagnostic code No.
------------------------------------------------------------------------
 
                              * * * * * * *
Constrictive bronchiolitis or obliterative                          6605
 bronchiolitis....................................
 
                              * * * * * * *
------------------------------------------------------------------------


[FR Doc. 2024-20542 Filed 9-11-24; 8:45 am]
BILLING CODE 8320-01-P