Proposed Rule2024-20542
Schedule for Rating Disabilities-Ear, Nose, Throat, and Audiology Disabilities; Special Provisions Regarding Evaluation of Respiratory Conditions; Schedule for Rating Disabilities-Respiratory System
Primary source
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Published
September 12, 2024
Issuing agencies
Veterans Affairs Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 177 (Thursday, September 12, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="http://www.regulations.gov">www.regulations.gov</a>.
Except as provided below, comments received before the close of the
comment period will be available at <a href="http://www.regulations.gov">www.regulations.gov</a> 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
<a href="http://www.regulations.gov">www.regulations.gov</a> as soon as possible after they have been received.
VA will not post on <a href="http://Regulations.gov">Regulations.gov</a> 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
<a href="http://www.regulations.gov">www.regulations.gov</a>, 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 <a href="http://www.regulations.gov">www.regulations.gov</a>.
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].
* * * * * * *
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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)
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* * * * * * *
6605........................ Constrictive bronchiolitis or obliterative
broncholitis.
* * * * * * *
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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
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