[Federal Register: May 14, 2003 (Volume 68, Number 93)]
[Rules and Regulations]
[Page 25822-25823]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my03-9]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AK86
Schedule for Rating Disabilities: Evaluation of Tinnitus
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 to state more explicitly the method of
evaluation of tinnitus under diagnostic code 6260 in the portion of the
rating schedule that addresses evaluation of disabilities of the ear.
The intended effect of this action is to codify current standard VA
practice by stating that recurrent tinnitus will be assigned only a
single 10-percent evaluation whether it is perceived in one ear, both
ears, or somewhere in the head.
EFFECTIVE DATE: This amendment is effective June 13, 2003.
FOR FURTHER INFORMATION CONTACT: Audrey Tomlinson, Medical Officer,
Regulations Staff (211A), Compensation and Pension Service, Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Ave., NW., Washington DC 20420, (202) 273-7215.
SUPPLEMENTARY INFORMATION: On September 19, 2002, VA published in the
Federal Register (67 FR 59033) a proposal to amend diagnostic code 6260
in 38 CFR 4.87, in order to codify current standard VA practice
concerning the evaluation of tinnitus. It states that recurrent
tinnitus will be assigned only a single ten-percent evaluation, whether
it is perceived in one ear, both ears, or somewhere in the head.
Interested persons were invited to submit written comments on or before
November 18, 2002. We received two comments, one from the American
Legion and one from a concerned individual.
One commenter felt that limiting tinnitus to a single ten-percent
evaluation is arbitrary and inconsistent with other provisions of VA's
Schedule for Rating Disabilities that deal with bilateral disabilities,
such as those providing separate evaluations for each ear with hearing
impairment. The same commenter felt that the proposed rule document
offered no substantive rationale for maintaining the current assignment
of a single evaluation for tinnitus, regardless of whether it is
perceived in one or both ears.
We disagree. VA's Audiology and Speech Pathology Service recently
wrote a booklet titled Hearing Impairment, an Independent Study Course
for health care providers. The section on tinnitus states that the fact
that most tinnitus appears to be coming from the ear led to a belief
that tinnitus was generated in the inner ear, but this is not the case.
It further states that damage in the inner ear may be a precursor for
subjective tinnitus, but that subjective tinnitus is generated within
the central auditory pathways. Comparing tinnitus, a central nervous
condition, to hearing loss, a disability from damage to an organ of
special sense (the ear) is not a valid comparison. We have made no
change in response to this comment. Because over 200,000 veterans are
currently rated for tinnitus under diagnostic code 6260 under Diseases
of the Ear, for
[[Page 25823]]
administrative efficiency, and because many are accustomed to looking
in that section of the rating schedule, the current placement of
tinnitus within the rating schedule will remain unchanged.
The SUPPLEMENTARY INFORMATION section of the proposed regulatory
amendment explained that tinnitus is a single disability arising in the
brain and that it consists of the perception of sound in the absence of
an external stimulus. This definition applies whether the tinnitus is
perceived in one ear, both ears, or somewhere undefined in the head.
The commenter provided no information that would refute this medical
explanation. The degree of disability, that is, the degree to which
tinnitus impairs the veteran's earning capacity, is the same regardless
of how the tinnitus is perceived. To rate each ear separately for this
single disability would violate the prohibition on pyramiding, 38 CFR
4.14. Similarly, to rate each ear separately would be a violation of
the principle of 38 CFR 4.25(b) that a ``single disease entity'' is to
be given a single rating. A single evaluation for a single disability
is appropriate. We have made no change based on this comment.
A second commenter suggested that we adopt measurable time and
duration standards for the term ``recurrent.'' Because a substantive
change to define the term ``recurrent'' is beyond the scope of this
rulemaking, we have made no change based on this comment.
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 without change.
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 regulatory amendment will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (RFA), 5
U.S.C. 601-612. The reason for this certification is that this
amendment would not directly affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
Executive Order 12866
This regulatory amendment has been reviewed by the Office of
Management and Budget under the provisions of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993.
Unfunded Mandates
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in an expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector of
$100 million or more in any given year. This rule would have no
consequential effect on State, local, or tribal governments.
Catalog of Federal Domestic Assistance Numbers
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: April 14, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.
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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
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1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155, unless otherwise noted.
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2. In Sec. 4.87, diagnostic code 6260 is revised to read as follows:
Sec. 4.87 Schedule of ratings--ear.
Diseases of the Ear
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Rating
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* * * * *
6260 Tinnitus, recurrent...................................... 10
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Note (1): A separate evaluation for tinnitus may be combined
with an evaluation under diagnostic codes 6100, 6200, 6204, or other
diagnostic code, except when tinnitus supports an evaluation under
one of those diagnostic codes.
Note (2): Assign only a single evaluation for recurrent
tinnitus, whether the sound is perceived in one ear, both ears, or
in the head.
Note (3): Do not evaluate objective tinnitus (in which the sound
is audible to other people and has a definable cause that may or may
not be pathologic) under this diagnostic code, but evaluate it as
part of any underlying condition causing it.
(Authority: 38 U.S.C. 1155).
[FR Doc. 03-12038 Filed 5-13-03; 8:45 am]
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