20438 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 2

RIN 2900–AI08

Delegations of Authority;

Nonsubstantive Miscellaneous

Changes

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the

delegation of authority regulations by

removing redundant material and by

removing other information not required

to be published in the Federal Register.

EFFECTIVE DATE: May 7, 1996.

FOR FURTHER INFORMATION CONTACT:

Dawn McGowan, Chief, Directives,

Forms, Records Management,

Headquarters Health Administration

Service (161A4), Department of

Veterans Affairs, 810 Vermont Avenue,

NW., Washington, DC 20420, (202) 565–

7444. (This is not a toll free number.)

SUPPLEMENTARY INFORMATION: This final

rule consists of nonsubstantive changes

and, therefore, is not subject to the

notice and comment and effective date

provisions of 5 U.S.C. 553.

The Secretary hereby certifies that the

rule will not have a significant

economic impact on a substantial

number of small entitles as they are

defined in the Regulatory Flexibility

Act, 5 U.S.C. 601–612. This rule merely

consists of nonsubstantive changes.

There is no Catalog of Federal

Domestic Assistance Number.

List of Subjects in 38 CFR Part 2

Authority delegations (Government

agencies).

Approved: April 29, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth in the

preamble, 38 CFR part 2 is amended as

set forth below:

PART 2—DELEGATIONS OF

AUTHORITY

1. The authority citation for part 2 is

revised to read as follows:

Authority: 5 U.S.C. 302; 38 U.S.C. 501,

512; 44 U.S.C. 3702.

§§ 2.3, 2.72, 2.73, 2.74, 2.91, 2.93, 2.94

[Removed]

2. In part 2, §§ 2.3, 2.72, 2.73, 2.74,

2.91, 2.93, and 2.94 are removed.

[FR Doc. 96–11278 Filed 5–6–96; 8:45 am]

BILLING CODE 8320–01–P

38 CFR Part 3

RIN 2900–AH87

Removal of References to ‘‘Vicious

Habits’’

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: Certain Department of

Veterans Affairs (VA) regulations state

that to be eligible for pension a veteran

must be permanently and totally

disabled from nonservice-connected

disability not due to the veteran’s own

willful misconduct or vicious habits.

The statute upon which these

regulations is based was changed in

1978 to delete references to ‘‘vicious

habits.’’ The purpose of this rule is to

conform the regulations to the statute.

EFFECTIVE DATE: This amendment is

effective May 7, 1996.

FOR FURTHER INFORMATION CONTACT: Paul

Trowbridge, Consultant, Regulations

Staff, Compensation and Pension

Service, Veterans Benefits

Administration, 810 Vermont Avenue,

NW., Washington, DC 20420, telephone

(202) 273–7210.

SUPPLEMENTARY INFORMATION: Before

1978, the statute governing entitlement

to pension for nonservice-connected

disability (now 38 U.S.C. 1521(a))

provided that VA pension was

potentially payable to a veteran who

was permanently and totally disabled

from non-service-connected disability

not the result of the veteran’s willful

misconduct or vicious habits. In 1978

the Veterans’ and Survivors’ Pension

Improvement Act of 1978, Public Law

95–588, deleted the words ‘‘vicious

habits’’ from the pension statute.

In 1990 VA amended 38 CFR 3.301(b)

to delete the reference to ‘‘vicious

habits’’ (55 FR 13529). 38 CFR 3.301(b)

now states simply that ‘‘disability

pension is not payable for any condition

due to the veteran’s own willful

misconduct.’’

There are additional references to

‘‘vicious habits’’ in 38 CFR sections

3.314(b)(2), and 3.323(b) which

apparently were overlooked when 38

CFR 3.301(b) was amended in 1990.

This rule deletes those references and

conforms the rules to the current

language of 38 U.S.C. 1521(a).

Since these amendments are in the

nature of a technical correction, the

Secretary finds that notice and public

procedure thereon are unnecessary.

Accordingly, these amendments are

promulgated without regard to the

notice-and-comment and effective-date

provisions of 5 U.S.C. 553.

Because no notice of proposed

rulemaking was required in connection

with the adoption of this final rule, no

regulatory flexibility analysis is required

under the Regulatory Flexibility Act (5

U.S.C. 601–612). Even so, the Secretary

hereby certifies that this final rule will

not have a significant economic impact

on a substantial number of small entities

as they are defined in the Regulatory

Flexibility Act. This amendment will

directly affect VA beneficiaries but will

not affect small businesses.

The catalog of Federal Domestic

Assistance program number is 64.104.

List of Subjects in 38 CFR Part 3

Administrative practice and

procedure, Claims, Disability benefits,

Health care, Pensions, Veterans,

Vietnam.

Approved: April 19, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth in the

preamble, 38 CFR part 3 is amended as

follows:

PART 3—ADJUDICATION

Subpart A—Pension, Compensation,

and Dependency and Indemnity

Compensation

1. The authority citation for part 3,

subpart A continues to read as follows:

Authority: 38 U.S.C. 501(a), unless

otherwise noted.

§ 3.314 Basic pension determinations.

2. In § 3.314(b)(2) remove the words

‘‘or vicious habits’’.

§ 3.323 Combined ratings.

3. In § 3.323(b)(1) and (b)(2) remove

the words ‘‘or vicious habits’’.

[FR Doc. 96–11280 Filed 5–6–96; 8:45 am]

BILLING CODE 8320–01–P

38 CFR Part 4

RIN 2900–AH05

Schedule for Rating Disabilities;

Fibromyalgia

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule with request

for comments.

SUMMARY: This document amends the

Department of Veterans Affairs (VA)

Schedule for Rating Disabilities by

adding a diagnostic code and evaluation

criteria for fibromyalgia. The intended

effect of this rule is to ensure that

veterans receive consistent evaluations

for this condition.

DATES: This interim final rule is

effective May 7, 1996. Comments must

be received on or before July 8, 1996.
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20439

ADDRESSES: Mail written comments to:

Director, Office of Regulations

Management (02D), Department of

Veterans Affairs, 810 Vermont Ave.,

NW., Washington, DC 20420 or hand

deliver written comments to: Office of

Regulations Management, Room 1176,

801 Eye St., NW., Washington, DC

20001. Comments should indicate that

they are submitted in response to ‘‘RIN

2900–AH05.’’ All written comments

received will be available for public

inspection in the Office of Regulations

Management, Room 1176, 801 Eye St.,

NW., Washington, DC 20001 between

the hours of 8:00 a.m. and 4:30 p.m.,

Monday through Friday (except

holidays).

FOR FURTHER INFORMATION CONTACT:

Caroll McBrine, M.D., Consultant,

Regulations Staff, Compensation and

Pension Service, Veterans Benefits

Administration, Department of Veterans

Affairs, 810 Vermont Ave., NW.,

Washington, DC 20420, (202) 273–7210.

SUPPLEMENTARY INFORMATION: The VA

Schedule for Rating Disabilities, which

constitutes 38 CFR Part 4, is a guide for

the evaluation of disability resulting

from diseases or injuries. This

document adds to the musculoskeletal

section of the Schedule, § 4.71a, a new

diagnostic code, 5025, for fibromyalgia,

also called fibrositis or primary

fibromyalgia syndrome, and establishes

criteria for its evaluation.

Fibromyalgia is a syndrome of

chronic, widespread musculoskeletal

pain associated with multiple tender or

‘‘trigger’’ points, and often with

multiple somatic complaints. Sleep

disorders are present in more than half

of the patients. Anxiety, fatigue,

headache, and irritable bowel symptoms

are also common. Some patients

complain of neurologic symptoms such

as numbness and weakness, but

objective neurologic abnormalities are

not found. Other associated findings

include depression, Raynaud’s-like

symptoms, and stiffness. The etiology is

unknown.

Classification criteria for fibromyalgia

for research and epidemiological

purposes were established by the

American College of Rheumatology in

1990. The first requirement is a history

of widespread pain, which means pain

in both the left and right sides of the

body, pain both above and below the

waist, and pain in both the axial

(cervical spine, anterior chest, thoracic

spine, or low back) and peripheral

(extremity) skeleton. The second

requirement is the presence of pain on

digital palpation at a minimum of 11 of

the following 18 tender point sites:

occiput, low cervical, trapezius,

supraspinatus, second rib, lateral

epicondyle, gluteal, greater trochanter,

knee (there is a left site and a right site

at each location). In clinical practice,

the diagnosis is often made on less

stringent criteria, with fewer tender

points required.

We are providing three levels of

evaluation: 10, 20, and 40 percent,

consistent, in our judgment, with the

clinical range of impairment of this

condition. While patients may have

numerous symptoms that may be

chronic, it is a benign disease that does

not result in loss of musculoskeletal

function. For the 40 percent level, the

requirements are that the widespread

pain and multiple tender points, with or

without certain associated complaints,

be constant, or nearly so, and refractory

to therapy. For the 20 percent level, the

requirements are that the pain and

tender points, etc., be episodic, with

exacerbations often precipitated by

environmental or emotional stress or by

overexertion, but present more than

one-third of the time. For the 10 percent

level, the requirement is that the pain

and tender points, etc., require

continuous medication for control.

It is necessary to make this rule

effective upon publication. Conditions

not listed in the Schedule may be

evaluated under a closely related

condition in which anatomical

localization, functions affected, and

symptomatology are closely analogous.

(See 38 CFR 4.20.) However, because of

the variety of analogous conditions

under which fibromyalgia may be

evaluated, it is necessary to establish a

final rule immediately in order to avoid

inconsistency in evaluations. Comments

are being solicited for 60 days after

publication of this document. VA may

modify the rule in response to

comments, if appropriate.

Because no notice of proposed

rulemaking was required in connection

with the adoption of this interim final

rule, no regulatory flexibility analysis is

required under the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.).

Further, this amendment would not

directly affect any small entities since it

would affect only individuals.

This rule has been reviewed as a

‘‘significant regulatory action’’ under

E.O. 12866 by the Office of Management

and Budget.

The Catalog of Federal Domestic

Assistance program numbers are 64.104

and 64.109.

List of Subjects in 38 CFR Part 4

Disability benefits, Individuals with

disabilities, Pensions, Veterans.

Approved: December 7, 1995.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth in the

preamble, 38 CFR part 4, subpart B is

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.

Subpart B—Disability Ratings

2. In § 4.71a, diagnostic code 5025 is

added immediately after the sentence

that follows diagnostic code 5024, to

read as follows:

§ 4.71a Schedule of ratings—

musculoskeletal system.

Rating

* * * * * * *

5025 Fibromyalgia (fibrositis, primary fibromyalgia syndrome)

With widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness,

paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms:

That are constant, or nearly so, and refractory to therapy ....................................................................................................... 40

That are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that

are present more than one-third of the time ......................................................................................................................... 20

That require continuous medication for control ......................................................................................................................... 10

* * * * * * *

Note: Widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both

the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities.
20440 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

[FR Doc. 96–11275 Filed 5–6–96; 8:45 am]

BILLING CODE 8320–01–P

38 CFR Part 4

RIN 2900–AE41

Schedule for Rating Disabilities;

Endocrine System Disabilities

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends that

portion of the Department of Veterans

Affairs (VA) Schedule for Rating

Disabilities that addresses the Endocrine

System. The effect of this action is to

update the endocrine portion of the

rating schedule to ensure that it uses

current medical terminology and

unambiguous criteria, and that it reflects

medical advances which have occurred

since the last review.

DATES: This amendment is effective June

6, 1996.

FOR FURTHER INFORMATION CONTACT:

Caroll McBrine, M.D., Consultant,

Regulations Staff (211B), Compensation

and Pension Service, Veterans Benefits

Administration, Department of Veterans

Affairs, 810 Vermont Avenue NW,

Washington, DC 20420, (202) 273–7210.

SUPPLEMENTARY INFORMATION: As part of

the first comprehensive review of the

rating schedule since 1945, VA

published a proposal to amend 38 CFR

4.119, which addresses the endocrine

system, in the Federal Register of

January 22, 1993 (58 FR 5691–95).

Interested persons were invited to

submit written comments on or before

March 23, 1993. We received comments

from The American Legion, Disabled

American Veterans, Veterans of Foreign

Wars, Paralyzed Veterans of America,

and VA employees.

There were a number of general

comments. Two commenters requested

that we establish more objective criteria,

especially for thyroid disease,

parathyroid disease, and diabetes

mellitus. One of them noted that a

substantial number of subjective

descriptors remained. The other

recommended that we remove

ambiguous and undefined terms. One

commenter said that the schedule

should eliminate, as much as possible,

the potential for inconsistency and

error. Another suggested that removing

comparative descriptions such as

‘‘severe,’’ ‘‘moderate’’, etc., would not

disturb the remaining criteria and

would result in more uniform rating

decisions.

Although the commenters offered no

specific alternatives for consideration,

VA agrees that objective rating criteria

help assure consistency of evaluations.

With that in mind, we have revised the

proposed criteria. In some cases we

have simply removed subjective terms

such as ‘‘marked’’, ‘‘increasingly

severe’’, and ‘‘pronounced’’ when they

did not substantively explain or clarify

the evaluation criteria. In other cases,

we have supplied objective definitions

of terms. In still others, establishing

more objective, consistent, and

unambiguous criteria required more

detailed modification of the proposed

criteria, which will be discussed under

the affected diagnostic codes.

One commenter, while agreeing with

the removal of ambiguous words such as

‘‘severe,’’ urged that the rules not be

made too concrete and thus sterile.

We believe that providing clear and

objective criteria is the best way to

assure that disabilities will be evaluated

fairly and consistently. Judgment and

flexibility are required in the evaluation

process, since patients do not

commonly present as textbook models

of disease, and those evaluating

disabilities always have the task of

assessing which evaluation level best

represents the overall picture. (See 38

CFR 4.7.)

One commenter stated that it would

be helpful to have additional notes,

such as the note under DC 7913 on the

evaluation of the complications of

diabetes mellitus, discussing pertinent

clinical and nonclinical factors to be

considered in assigning evaluations.

In general, we have retained or

expanded upon such notes. Where it

seemed more appropriate, we have

incorporated the content of notes into

the evaluation criteria. We have not

added notes containing background

material, such as general medical

information that is available in standard

textbooks, or other material that neither

prescribes VA policy nor establishes

procedures a rating board must follow,

because such material is not appropriate

in a regulation.

We have revised hyperthyroidism, DC

7900, in response to the comment

suggesting more objectivity. The

proposed criteria required ‘‘severe

tachycardia’’ at the 100 percent level

and ‘‘tachycardia’’ at all other levels.

According to ‘‘The Merck Manual’’ (463,

16th ed. 1992), tachycardia is a heart

rate greater than 100 beats per minute,

but the medical literature does not

define ‘‘severe’’ tachycardia. Using the

word ‘‘severe’’ therefore imposed upon

the rater the burden of subjectively

determining its meaning, and we have

removed ‘‘severe’’ at the 100 percent

level. We have also made the criteria

more objective by indicating that

tachycardia means more than 100 beats

per minute.

We proposed that the criteria for

hyperthyroidism include ‘‘marked

sympathetic nervous system,

cardiovascular, or gastrointestinal

symptoms’’ at the 100 percent level and

‘‘marked emotional instability’’ at the 60

percent level. In both cases, we have

removed the indefinite word ‘‘marked’’

because it does not substantively

explain or clarify the evaluation criteria,

and the criteria are clear without it.

One commenter suggested that we

specify the symptoms of the

sympathetic nervous system proposed

as criteria at the 100 percent level of

evaluation under DC 7900.

VA does not concur. The sympathetic

nervous system innervates thoracic,

abdominal, and pelvic viscera as well as

blood vessel walls. Therefore,

exaggerated sympathetic nervous system

activity can have widespread

manifestations including, but not

limited to, elevated blood pressure,

increased cardiac output, increased

metabolic rate, sweating, nervousness,

weight loss, tachycardia, palpitations,

increased frequency of bowel

movements, and heat intolerance.

Certain conditions, hyperthyroidism

among them, are known as

sympathomimetic conditions because

they mimic the effects of increased

activity of the sympathetic nervous

system, although the sympathetic

nervous system itself is normal. Since

the particular signs and symptoms that

might be exhibited vary widely from

individual to individual, limiting the

criteria at the 100 percent level to a few

selected symptoms of the sympathetic

nervous system would be inappropriate.

We proposed that increased pulse

pressure be one of the criteria for the 60

percent and 30 percent levels of

hyperthyroidism. One commenter

questioned the use of pulse pressure as

a criterion, stating that it is not a

diagnostic marker and is not routinely

recorded on an examination report.

Pulse pressure is the difference

between the systolic and diastolic blood

pressures, and it is readily available for

anyone who has had a blood pressure

recorded. Hyperthyroidism is one of a

number of diseases that may produce an

increased (or widened) pulse pressure,

which results from an elevated systolic

blood pressure and a lowered diastolic

blood pressure. Because increased pulse

pressure is a common sign of

hyperthyroidism, it is an appropriate

criterion to use in evaluating

hyperthyroidism.

One commenter suggested that tremor

(one of several proposed criteria for

hyperthyroidism at the 10 and 30