[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54708-54712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21980]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AM55


Schedule for Rating Disabilities; Evaluation of Scars

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
Schedule for Rating Disabilities by revising that portion of the 
Schedule that addresses the Skin, so that it more clearly reflects our 
policies concerning the evaluation of scars.

DATES: Effective Date: This amendment is effective October 23, 2008.
    Applicability Date: This amendment shall apply to all applications 
for benefits received by VA on or after October 23, 2008. A veteran 
whom VA rated before such date under diagnostic codes 7800, 7801, 7802, 
7803, 7804, or 7805 of 38 CFR 4.118 may request review under these 
clarified criteria, irrespective of whether his or her disability has 
worsened since the last review. The effective date of any award, or any 
increase in disability compensation, based on this amendment will not 
be earlier than the effective date of this rule, but will otherwise be 
assigned under the current regulations regarding effective dates, 38 
CFR 3.400, etc.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Regulations Staff 
(211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (727) 319-5847. (This is not a toll-free 
number.)

SUPPLEMENTARY INFORMATION: On January 3, 2008, VA published in the 
Federal Register (73 FR 428) a proposal to amend those portions of the 
Schedule for Rating Disabilities that address the Skin, 38 CFR 4.118, 
by revising the guidelines for the evaluation of scars. Interested 
persons were invited to submit written comments on or before February 
4, 2008. We received comments from the National Organization of 
Veterans' Advocates, Inc. (NOVA), and Disabled American Veterans (DAV).

NOVA's Comment

    NOVA addressed a proposed change to a note in diagnostic code 7801 
that would consider the trunk as one area of the body. Currently, the 
note in diagnostic code 7801 directs that scars on widely separated 
areas, as on two or more extremities or on anterior and posterior 
surfaces of extremities or trunk, will be separately rated. We proposed 
to revise this note to clarify that if multiple scars are present, VA 
will assign a separate evaluation for each affected extremity based on 
the total area of the qualifying scars on that extremity, and assign a 
separate evaluation for the trunk based on the total area of the 
qualifying scars on the trunk. Qualifying scars under diagnostic code 
7801 are deep scars that are not located on the head, face, or neck.
    NOVA is concerned that the proposed change will not adequately 
compensate veterans for scars of the trunk. NOVA stated the rationale 
for the change of ensuring that the area of all deep scars of the trunk 
are taken into account was inadequate considering that the anterior and 
posterior surfaces of the trunk may be the largest separate and 
distinct areas of the body.
    Second, NOVA stated that a scar can cross over into more than one 
separate area of the body. In the proposed rule, we stated that such a 
scar would be treated as two separate scars to ensure that the ratings 
reflect the disability to each distinct area of the body.
    Third, NOVA stated the proposed change would potentially result in 
a lower evaluation for a veteran with one scar that covers both the 
anterior and posterior trunk. NOVA offers the following example: A 
veteran has one 30 inch scar that wraps around his anterior and 
posterior trunk, with 15 square inches on the anterior side and 15 
square inches on his posterior side. Under the current diagnostic code, 
this scar would be rated separately at 20 percent and 20 percent, for a 
combined evaluation of 40 percent. Under the proposed change, the 
veteran would be

[[Page 54709]]

entitled to one evaluation for a 30 inch scar of 20 percent.
    Fourth, NOVA comments that under the proposed change a veteran who 
has two scars, one on his posterior trunk and one on his anterior 
trunk, would only receive one rating for that area; we would not rate 
each scar separately, and then provide a combined rating. The effect 
could potentially be a lower rating under the revised rule than the 
veteran would receive under the current rule.

Response

    We did not intend in the proposed regulation to produce a lower 
evaluation for scars of the trunk, and we agree that this could happen 
under the criteria we proposed. While in the proposed regulation we 
considered the trunk to be a single location for purposes of evaluating 
multiple scars, after further consideration, we have made changes in 
the final rule indicating that the anterior and posterior portions of 
the trunk represent separate locations for purposes of evaluation. With 
that change, separate evaluations can be assigned for the total area of 
qualifying scars of each extremity, for the total area of qualifying 
scars of the anterior portion of the trunk, and for the total area of 
qualifying scars of the posterior portion of the trunk. Accordingly, we 
have changed the first sentence of proposed note 2 under diagnostic 
codes 7801 and 7802 to direct raters, if multiple scars are present, or 
if a single scar affects more than one extremity, or a single scar 
affects one or more extremities and either the anterior portion or 
posterior portion of the trunk, or both, or a single scar affects both 
the anterior portion and the posterior portion of the trunk, to assign 
a separate evaluation based on the total area of qualifying scars of 
each affected extremity, the total area of qualifying scars of the 
anterior portion of the trunk, if affected, and the total area of the 
qualifying scars of the posterior portion of the trunk, if affected.
    We have also added a statement in note 2 of diagnostic codes 7801 
and 7802 clarifying the borders of the anterior (ventral) and posterior 
(dorsal) portions of the trunk, in order to avoid confusion about scars 
that may be reported as being on the lateral aspects of the trunk. It 
states that the midaxillary line on each side separates the anterior 
and posterior portions of the trunk. Therefore, all portions of the 
trunk are designated as either ``anterior'' or ``posterior,'' based on 
their relationship to the midaxillary line, and there is no portion 
that is designated ``lateral.''
    We revised note 2 of diagnostic code 7802 to be identical to note 2 
of diagnostic code 7801. These notes address the same concept and the 
identical language will make the notes easier to use. We are also 
making minor technical changes to improve the clarity of both notes.

DAV's Comments

Method of Measurement

    DAV commented that while they agreed with the amendment to the 
areas of scars, they were concerned that the method of measurement was 
not specifically stated in the regulation. DAV stated that the 
diagnostic code provides evaluations for square inches. However, scars 
are often oddly shaped. DAV proposed that the area of a scar be 
measured based on the shape of a rectangle from the top of the scar to 
the bottom of the scar for the height measurement, and from the 
farthest side points of the scar for the width. According to DAV, this 
method of measurement would result in more accurate measurements and 
more consistent disability ratings. DAV believes it is difficult for 
examiners and adjudicators to determine the surface area in square 
inches for oddly shaped scars.

Response

    We make no change based on this comment. We note that the current 
regulation does not specify a method of measurement, and this has not 
created difficulty for medical professionals who are responsible for 
measuring scars. Using the ``rectangular area'' method described by DAV 
would inappropriately overestimate the area of scars that are 
hourglass-shaped, with the narrow area being very long and thin, and 
other scars where one portion is much thinner than another. Measuring 
as a rectangle in such cases could lead to possible inaccuracies in 
evaluation. Measuring the actual surface area, as required by the rule, 
will not lead to such inaccuracies; additionally, it is impractical to 
set forth all of the methods that can be used to measure scars of 
various shapes and sizes. No two scars are identical, and different 
measuring techniques must be employed based on the size, shape, and 
location of a particular scar. Relying on medical professionals who 
measure and describe scars in VA medical examinations and on evidence 
contained in medical records is more likely to produce accurate 
measurements than a general rule such as the one proposed by DAV. As 
such, it would not be helpful to revise the regulation to specify a 
method of measuring scars.

Diagnostic Code 7801 Note 2 Preamble

    DAV stated that the discussion of proposed diagnostic code 7801 
note 2 in the preamble of our notice of proposed rulemaking states that 
scars may run into two separate areas and each area should be 
separately evaluated. However, DAV stated that the note itself does not 
state this. DAV believes that VA should ensure that this concept is 
included in the note to ensure scars are properly evaluated.

Response

    We agree that note 2 can be clearer on this point. Our revision to 
note 2 discussed above will include a revision based on this comment. 
Additionally, for clarity and as part of the revision based on the 
separate comment, we will make the same revision to note 2 of 
diagnostic code 7802.

Diagnostic Code 7801 Note 2 Separate Ratings

    DAV additionally stated that the proposed criterion that requires 
adjudicators to award separate ratings for a scar that runs into two 
separate areas, for example the trunk and left arm, may be less 
beneficial to veterans in some cases. DAV stated that a veteran with a 
scar of 12 square inches: 11 square inches on the trunk and 1 square 
inch on the left arm, would receive a 10 percent evaluation for the 
trunk and 0 percent evaluation for the left arm, which combine to 10 
percent. If the 12 square inch scar was solely on the trunk, the 
veteran receives a 20 percent evaluation. DAV believes that 
adjudicators should be able to award either a single rating for the 
combined surface area of a scar that runs into two separate areas, or 
separate ratings, whichever results in the higher rating.

Response

    We make no change based on this comment. We note that the 
requirement to separately evaluate scars on separate areas of the body 
is not a new requirement; our proposed language merely clarifies 
already existing evaluation methods. Further, we evaluate separate 
areas of the body to compensate for functional loss of the different 
areas of the body separately. In the example mentioned by DAV, the 
veteran has an 11 square inch scar of the trunk versus a 12 square inch 
scar of the trunk, which require different evaluations because the 12 
square inch scar could lead to greater functional loss of the trunk. 
VA's ratings are based on the average impairment to earning

[[Page 54710]]

capacity caused by service-connected disabilities. 38 U.S.C. 1155. Each 
area of the body identified in the rule has a separate and distinct 
function; therefore, a scar that affects a single area of the body is 
less likely to produce greater overall disability than a similar scar 
that affects more than one area of the body. For this reason, we will 
rate the separate areas of the body separately. Although DAV suggests 
that assigning separate ratings for each affected body part may be less 
favorable to claimants in certain circumstances than assigning only one 
rating for each scar that affects more than one body part, we believe 
that assigning separate ratings for each affected body part generally 
will be beneficial to claimants and, moreover, more closely comports 
with the purpose of assigning ratings based on functional loss.
    We made an additional change to the title of diagnostic code 7800 
for the sake of clarity. To avoid any possible confusion about whether 
it refers to burn scars, scars due to other causes, or disfigurement 
only of the head, face, or neck, or also to scars or disfigurement in 
other areas, we clarified the title by changing it to ``Burn scar(s) of 
the head, face, or neck; scar(s) of the head, face, or neck due to 
other causes; or other disfigurement of the head, face, or neck''. This 
eliminates any possible confusion about the purpose of this diagnostic 
code but does not represent a substantive change from the proposed 
regulation.
    VA appreciates the comments submitted in response to the proposed 
rule. Based on the rationale stated in the proposed rule and in this 
document, the proposed rule is adopted as a final rule with the changes 
noted.
    We are additionally adding updates to 38 CFR part 4, Appendices A, 
B, and C, to reflect changes to the diagnostic criteria for scars made 
by this rulemaking. The appendices are tools for users of the Schedule 
for Rating Disabilities and do not contain substantive content 
regarding evaluation of disabilities. As such, we believe it is 
appropriate to include these updates in this final rule.

Paperwork Reduction Act

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

Regulatory Flexibility Act

    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, 5 U.S.C. 601-
612. This final rule would not affect any small entities. Only VA 
beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this final rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all 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, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB), as any regulatory action 
that is likely to result in a rule that may: (1) Have an annual effect 
on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined and it has been 
determined to be a significant regulatory action under the Executive 
Order because it is likely to result in a rule that may raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.

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 year. This final rule would have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this final rule are 64.104, Pension for Non-Service-
Connected Disability for Veterans, and 64.109, Veterans Compensation 
for Service-Connected Disability.

List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

    Approved: June 20, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, 38 CFR part 4, subpart B, is 
amended as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

Subpart B--Disability Ratings

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

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


0
2. Section 4.118 is amended by:
0
a. Adding an introductory paragraph.
0
b. Revising the heading to diagnostic code 7800 and adding new notes 
(4) and (5).
0
c. Revising diagnostic codes 7801, 7802, 7804, and 7805.
0
d. Removing diagnostic code 7803.
    The additions and revisions read as follows:


Sec.  4.118  Schedule of ratings--skin.

    A veteran who VA rated under diagnostic codes 7800, 7801, 7802, 
7803, 7804, or 7805 before October 23, 2008 can request review under 
diagnostic codes 7800, 7801, 7802, 7804, and 7805, irrespective of 
whether the veteran's disability has increased since the last review. 
VA will review that veteran's disability rating to determine whether 
the veteran may be entitled to a higher disability rating under 
diagnostic codes 7800, 7801, 7802, 7804, and 7805. A request for review 
pursuant to this rulemaking will be treated as a claim for an increased 
rating for purposes of determining the effective date of an increased 
rating awarded as a result of such review; however, in no case will the 
award be effective before October 23, 2008.

[[Page 54711]]



------------------------------------------------------------------------
                                                                Rating
------------------------------------------------------------------------
7800 Burn scar(s) of the head, face, or neck; scar(s) of
 the head, face, or neck due to other causes; or other
 disfigurement of the head, face, or neck:
 
                              * * * * * * *
Note (4): Separately evaluate disabling effects other than
 disfigurement that are associated with individual scar(s)
 of the head, face, or neck, such as pain, instability, and
 residuals of associated muscle or nerve injury, under the
 appropriate diagnostic code(s) and apply Sec.   4.25 to
 combine the evaluation(s) with the evaluation assigned
 under this diagnostic code................................
Note (5): The characteristic(s) of disfigurement may be
 caused by one scar or by multiple scars; the
 characteristic(s) required to assign a particular
 evaluation need not be caused by a single scar in order to
 assign that evaluation....................................
7801 Burn scar(s) or scar(s) due to other causes, not of
 the head, face, or neck, that are deep and nonlinear:
    Area or areas of 144 square inches (929 sq. cm.) or               40
     greater...............................................
    Area or areas of at least 72 square inches (465 sq.               30
     cm.) but less than 144 square inches (929 sq. cm.)....
    Area or areas of at least 12 square inches (77 sq. cm.)           20
     but less than 72 square inches (465 sq. cm.)..........
    Area or areas of at least 6 square inches (39 sq. cm.)            10
     but less than 12 square inches (77 sq. cm.)...........
Note (1): A deep scar is one associated with underlying
 soft tissue damage........................................
Note (2): If multiple qualifying scars are present, or if a
 single qualifying scar affects more than one extremity, or
 a single qualifying scar affects one or more extremities
 and either the anterior portion or posterior portion of
 the trunk, or both, or a single qualifying scar affects
 both the anterior portion and the posterior portion of the
 trunk, assign a separate evaluation for each affected
 extremity based on the total area of the qualifying scars
 that affect that extremity, assign a separate evaluation
 based on the total area of the qualifying scars that
 affect the anterior portion of the trunk, and assign a
 separate evaluation based on the total area of the
 qualifying scars that affect the posterior portion of the
 trunk. The midaxillary line on each side separates the
 anterior and posterior portions of the trunk. Combine the
 separate evaluations under Sec.   4.25. Qualifying scars
 are scars that are nonlinear, deep, and are not located on
 the head, face, or neck...................................
7802 Burn scar(s) or scar(s) due to other causes, not of
 the head, face, or neck, that are superficial and
 nonlinear:
    Area or areas of 144 square inches (929 sq. cm.) or               10
     greater...............................................
Note (1): A superficial scar is one not associated with
 underlying soft tissue damage.............................
Note (2): If multiple qualifying scars are present, or if a
 single qualifying scar affects more than one extremity, or
 a single qualifying scar affects one or more extremities
 and either the anterior portion or posterior portion of
 the trunk, or both, or a single qualifying scar affects
 both the anterior portion and the posterior portion of the
 trunk, assign a separate evaluation for each affected
 extremity based on the total area of the qualifying scars
 that affect that extremity, assign a separate evaluation
 based on the total area of the qualifying scars that
 affect the anterior portion of the trunk, and assign a
 separate evaluation based on the total area of the
 qualifying scars that affect the posterior portion of the
 trunk. The midaxillary line on each side separates the
 anterior and posterior portions of the trunk. Combine the
 separate evaluations under Sec.   4.25. Qualifying scars
 are scars that are nonlinear, superficial, and are not
 located on the head, face, or neck........................
7804 Scar(s), unstable or painful:
    Five or more scars that are unstable or painful........           30
    Three or four scars that are unstable or painful.......           20
    One or two scars that are unstable or painful..........           10
Note (1): An unstable scar is one where, for any reason,
 there is frequent loss of covering of skin over the scar..
Note (2): If one or more scars are both unstable and
 painful, add 10 percent to the evaluation that is based on
 the total number of unstable or painful scars.............
Note (3): Scars evaluated under diagnostic codes 7800,
 7801, 7802, or 7805 may also receive an evaluation under
 this diagnostic code, when applicable.....................
7805 Scars, other (including linear scars) and other
 effects of scars evaluated under diagnostic codes 7800,
 7801, 7802, and 7804:
    Evaluate any disabling effect(s) not considered in a
     rating provided under diagnostic codes 7800-04 under
     an appropriate diagnostic code........................
------------------------------------------------------------------------

* * * * *

0
3. In Appendix A to Part 4, Sec.  4.118 revise diagnostic codes 7800, 
through 7804 and add diagnostic code 7805 to read as follows:

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

------------------------------------------------------------------------
                                  Diagnostic
              Sec.                 code No.
------------------------------------------------------------------------
 
                              * * * * * * *
4.118..........................         7800  Evaluation August 30,
                                               2002; criterion October
                                               23, 2008.
                                        7801  Criterion July 6, 1950;
                                               criterion August 30,
                                               2002; criterion October
                                               23, 2008.
                                        7802  Criterion September 22,
                                               1978; criterion August
                                               30, 2002; criterion
                                               October 23, 2008.
                                        7803  Criterion August 30, 2002;
                                               removed October 23, 2008.
                                        7804  Criterion July 6, 1950;
                                               criterion September 22,
                                               1978; criterion and
                                               evaluation October 23,
                                               2008.
                                        7805  Criterion October 23,
                                               2008.
 
                              * * * * * * *
------------------------------------------------------------------------


0
4. In Appendix B to Part 4 remove diagnostic code 7803 and its 
disability entry and revise the disability entries for diagnostic codes 
7800, 7801, 7802, 7804, and 7805 to read as follows:

Appendix B to Part 4--Numerical Index of Disabilities

[[Page 54712]]



------------------------------------------------------------------------
         Diagnostic code No.
------------------------------------------------------------------------
                                                    THE SKIN
 
                              * * * * * * *
7800.................................  Burn scar(s) of the head, face,
                                        or neck; scar(s) of the head,
                                        face, or neck due to other
                                        causes; or other disfigurement
                                        of the head, face, or neck.
7801.................................  Burn scar(s) or scar(s) due to
                                        other causes, not of the head,
                                        face, or neck, that are deep and
                                        nonlinear.
7802.................................  Burn scar(s) or scar(s) due to
                                        other causes, not of the head,
                                        face, or neck, that are
                                        superficial and nonlinear.
7804.................................  Scar(s), unstable or painful.
7805.................................  Scars, other.
 
                              * * * * * * *
------------------------------------------------------------------------


0
5. In Appendix C to Part 4, revise the disability entries immediately 
following the heading ``Scars:'' to read as follows:

Appendix C to Part 4--Alphabetical Index of Disabilities

------------------------------------------------------------------------
                                                              Diagnostic
                                                               code No.
------------------------------------------------------------------------
 
                              * * * * * * *
Scars:
  Burn scar(s) of the head, face, or neck; scar(s) of the           7800
   head, face, or neck due to other causes; or other
   disfigurement of the head, face, or neck................
  Burn scar(s) or scars(s) due to other causes, not of the          7801
   head, face, or neck, that are deep and nonlinear........
  Burn scar(s) or scars(s) due to other causes, not of the          7802
   head, face, or neck, that are superficial and nonlinear.
  Other....................................................         7805
  Retina...................................................         6011
  Unstable or painful......................................         7804
 
                              * * * * * * *
------------------------------------------------------------------------

[FR Doc. E8-21980 Filed 9-22-08; 8:45 am]
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