Federal Register/Vol. 67, No. 147/Wednesday, July 31, 2002

49590 Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

(g) Redeterminations. VA will reassess DEPARTMENT OF VETERANS sources of information. We received a determination under this section AFFAIRS several other comments on the proposed whenever it receives evidence rule after it was published in the indicating that a change is warranted. 38 CFR Part 4 Federal Register, but none of the commenters suggested withdrawing the (h) Referrals. If a regional office is RIN 2900–AF00 proposed revision. In response to unclear in any case as to whether a comments, we have however, made condition is a covered birth defect, it Schedule for Rating Disabilities; the Skin further revisions to some of the criteria may refer the issue to the Director of the for the sake of clarity and more Compensation and Pension Service for AGENCY: Department of Veterans Affairs. objectivity and have added definitions determination. ACTION: Final rule. and explanatory notes under some (i) Effective dates. Except as provided conditions. These added changes are in § 3.114(a) or paragraph (i)(1) or (2) of SUMMARY: This document amends that discussed in more detail below. The this section, VA will award the portion of the Department of Veterans same commenter who suggested monetary allowance under subchapter II Affairs (VA) Schedule for Rating withdrawing the proposed revision also Disabilities that addresses the Skin. The of 38 U.S.C. chapter 18, for an made specific suggestions for changes to intended effect of this action is to individual with disability resulting from many diagnostic codes. With the update the portion of the rating additional changes we have made in the one or more covered birth defects, based schedule that deals with skin to ensure on an original claim, a claim reopened final revision, we believe we have made that it uses current medical terminology the evaluation criteria for skin after final disallowance, or a claim for and unambiguous criteria, and that it conditions reasonably clear and increase, as of the date VA received the reflects medical advances that have objective. claim (or the date of birth if the claim occurred since the last review. Under diagnostic code (DC) 7800, is received within one year of that date), DATES: Effective Date: This amendment disfigurement of the head, face, or neck, the date entitlement arose, or December is effective August 30, 2002. the former rating schedule provided 1, 2001, whichever is latest. Subject to FOR FURTHER INFORMATION CONTACT: evaluation levels of 50, 30, 10, and zero the condition that no benefits may be Caroll McBrine, M.D., Consultant, percent based on whether there is paid for any period prior to December Policy and Regulations Staff (211B), repugnant deformity of one or both 1, 2001: Compensation and Pension Service, sides of the face, whether the (1) VA will increase benefits as of the Veterans Benefits Administration, disfigurement is ‘‘severe,’’ producing a earliest date the evidence establishes Department of Veterans Affairs, 810 marked and unsightly deformity of that the level of severity increased, but Vermont Avenue NW., Washington, DC eyelids, lips, or auricles, and on only if the beneficiary applies for an 20420, (202) 273–7230. whether the disfigurement is ‘‘moderate’’ or ‘‘slight.’’ Following these increase within one year of that date. SUPPLEMENTARY INFORMATION: As part of criteria was a note stating that each level (2) If a claimant reopens a previously a comprehensive review of the rating could be increased to the next higher disallowed claim based on corrected schedule, VA published a proposal to evaluation level on the basis of marked military records, VA will award the amend 38 CFR 4.118, which addresses discoloration or color contrast and that benefit from the latest of the following disabilities of the skin, in the Federal the most repugnant, disfiguring dates: the date the veteran or beneficiary Register of January 19, 1993 (58 FR conditions, including scars and diseases applied for a correction of the military 4969). Comments were received from of the skin, could be submitted with records; the date the disallowed claim the American Legion, Paralyzed photographs for central office rating. Veterans of America, Veterans of was filed; or, the date one year before The proposed amendment added an 80- Foreign Wars, Disabled American the date of receipt of the reopened percent evaluation level and deleted the Veterans, and VA employees. claim. part of the note that provided authority One commenter suggested that VA to elevate evaluations in the presence of (j) Reductions and discontinuances. withdraw the proposed regulations and marked discoloration or color contrast VA will generally reduce or discontinue reissue them based on more objective based on the rationale that these criteria awards under subchapter II of 38 U.S.C. standards, and also made specific are subject to inconsistent chapter 18 according to the facts found suggestions for changes to many interpretations. The proposed except as provided in §§ 3.105 and diagnostic codes. evaluation criteria were based at 80 3.114(b). We do not agree that the proposed percent on whether disfigurement is so (1) If benefits were paid erroneously regulations should be withdrawn. disfiguring as to preclude occupational because of beneficiary error, VA will We made the process of revision as interaction with the public, at 50 open as possible. For example, prior to reduce or discontinue benefits as of the percent on whether it is repugnant on publication of the proposed effective date of the erroneous award. casual inspection, at 30 percent on amendment, we published an advance whether it is disagreeable on casual (2) If benefits were paid erroneously notice of proposed rulemaking in the inspection, at 10 percent on whether it because of administrative error, VA will Federal Register to receive public is noticeable on casual inspection, and reduce or discontinue benefits as of the comments about the revision. We also at zero percent on whether it is date of last payment. contracted with an outside consultant, noticeable, but only on close inspection. (Authority: 38 U.S.C. 501, 1811, 1812, who convened a panel of non-VA One commenter felt that the deleted 1813, 1814, 1815, 1816, 1821, 1822, 1823, physician specialists in skin diseases to note should be retained. Another 1824, 5101, 5110, 5111, 5112) make recommendations for revisions of commenter, while offering no this section of the rating schedule. We alternative language for us to consider, [FR Doc. 02–19328 Filed 7–30–02; 8:45 am] asked the Veterans Health stated that the words ‘‘repugnant,’’ BILLING CODE 8320–01–P Administration to review our proposed disagreeable,’’ and ‘‘noticeable,’’ used to changes. We published the proposed describe degrees of disfigurement, are revision only after reviewing all of these too subjective to be useful and are not

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based on medical criteria. In a similar (loss of auricle) and anatomical loss of the scarring itself and its effects, rather vein, another commenter said that we the eye under DC 6061 (anatomical loss than on the etiology of the scarring, is should establish objective criteria for of both eyes) or DC 6063 (anatomical preferable because it will result in wider rating scars that should include loss of one eye), as appropriate; and the application of these criteria and afford evaluation of size, configuration, color, second directing the rater to take into consistency in the evaluation of etc. One commenter felt that the consideration unretouched color comparable scarring, whatever the difference between casual and close photographs. etiology. For more clarity and inspection, part of the criteria used to The former rating schedule designated consistency of language, we have, determine disfigurement, is a DC 7801 as ‘‘scars, burns, third degree,’’ however, modified the titles slightly, for distinction that is difficult to and DC 7802 as ‘‘scars, burns, second better differentiation of superficial and understand. degree.’’ We proposed to revise these deep scars, as discussed below. In response to these comments, we codes so that they additionally We proposed that DC 7801 (formerly have further revised the evaluation addressed scars from causes other than titled ‘‘scars, burns, third degree’’) be criteria for DC 7800 by basing them on burns and so that the conditions would retitled ‘‘scars, other than head, face, or the number of objective characteristics be evaluated based on actual residual neck, with underlying soft tissue of disfigurement that are present and disability, i.e., the size of the area of damage causing deep contour defect or whether there is asymmetry or gross underlying soft tissue damage or limited motion.’’ According to one distortion of the features. We provided limitation of motion, rather than on the commenter, the term ‘‘deep contour initial assessment of the severity of a defect’’ is confusing. When there is soft a new note following DC 7800 burn. We proposed to redesignate DC tissue damage beneath the skin, in describing the eight specific 7801 as ‘‘scars, other than head, face, or addition to scarring of the skin, the characteristics of disfigurement, for neck, with underlying soft tissue overlying scar shows a greater purposes of evaluation under § 4.118: damage causing deep contour defect or anatomical change in contour than Scar 5 or more inches (13 or more cm.) limited motion’’ and DC 7802 as ‘‘scars, when there is skin damage alone. The in length; scar at least one-quarter inch other than head, face, or neck, that are defect that appears in a scarred area (0.6 cm.) wide at widest part; surface superficial and that do not cause limited when there is underlying soft tissue contour of scar elevated or depressed on motion.’’ We proposed that under DC damage is known as a deep contour palpation; scar adherent to underlying 7801 scars with an area or areas defect and could also be called a deep tissue; skin hypo- or hyper-pigmented exceeding 144 square inches (929 sq. scar. The lesser change that results in a in an area exceeding six square inches cm.) receive a 40-percent evaluation; scarred area when there is skin damage (39 sq. cm.); skin texture abnormal with area or areas exceeding 72 square alone, without soft tissue damage (irregular, atrophic, shiny, scaly, etc.) in inches (465 sq. cm.) a 30-percent beneath the skin, is known as a an area exceeding six square inches (39 evaluation; with area or areas exceeding superficial contour defect and could sq. cm.); underlying soft tissue missing 12 square inches (77 sq. cm.) a 20- also be called a superficial scar. A in an area exceeding six square inches percent evaluation; and with area or superficial scar may have an irregular (39 sq. cm.); and skin indurated and areas exceeding 6 square inches (39 sq. surface that is either raised or inflexible in an area exceeding six cm.) a 10-percent evaluation. We depressed, but the abnormal contour square inches (39 sq. cm.). For an 80- proposed that under DC 7802 scars with goes no deeper than the skin. To make percent evaluation, there must be visible area or areas approximating 144 square the distinction between the scars to be or palpable tissue loss and either gross inches (929 sq. cm.) receive a 10-percent evaluated under DC’s 7801 and 7802 distortion or asymmetry of three or more evaluation. A commenter felt that clearer, we have removed the term features or paired sets of features (nose, historical precedent requires ‘‘deep contour defect’’ and have retitled chin, forehead, eyes (including eyelids), continuation of the wording ‘‘third DC 7801 ‘‘scars, other than head, face, ears (auricles), cheeks, lips), or six or degree’’ and ‘‘second degree’’ under or neck, that are deep or that cause more characteristics of disfigurement DC’s 7801 and 7802, formerly burn limited motion’’ and retitled DC 7802 must be present. For a 50-percent scars. ‘‘scars, other than head, face, or neck, evaluation, there must be visible or We disagree. One objective of the that are superficial and that do not palpable tissue loss and either gross rating schedule revision is to cause limited motion.’’ We have also distortion or asymmetry of two features incorporate medical advances and to added a definition of deep scar, as one or paired sets of features, or four or delete obsolete concepts and conditions. associated with underlying soft tissue more characteristics of disfigurement Our consultants, a panel of non-VA damage, in a note under DC 7801 and must be present. For a 30-percent physician specialists in skin diseases, as of superficial scar, as one not associated evaluation, there must be visible or well as medical textbooks such as with underlying soft tissue damage, in palpable tissue loss and either gross ‘‘Christopher’s Textbook of Surgery’’ a note under DC 7802. distortion or asymmetry of one feature 140–41 (Loyal Davis, M.D., ed., 9th ed. We proposed to retitle DC 7803 or set of paired features, or two or three 1968), indicate that the clinical (formerly titled ‘‘scars, superficial, characteristics of disfigurement must be estimation of the degree of a burn is not poorly nourished, with repeated present. For a 10-percent evaluation, always accurate and does not ulceration’’) ‘‘scars, superficial, unstable one characteristic of disfigurement must necessarily relate to long-term with frequent loss of epidermal be present. In our judgment, these disability. The severity of residual covering.’’ One commenter felt that the further revised criteria are sufficiently scarring from burns of all depths varies. meaning of ‘‘unstable’’ under DC 7803 is clear and objective to assure that Furthermore, burn scars that are not unclear, and wondered whether this evaluations take into account the most caused by thermal injury, but by means that the wound is infected or significant characteristics of chemical, electrical, or friction injury, as unhealed. disfigurement and will be consistent well as scars resulting from non-burn The term ‘‘unstable’’ in the title of DC from veteran to veteran. We have injuries that permanently alter the skin, 7803 does not imply a specific etiology provided two additional notes under DC can lead to comparable residuals. For but only indicates that there is frequent 7800, one directing the rater to rate these reasons, a determination of loss of covering of the skin over the scar. tissue loss of the auricle under DC 6207 disability that is based on the extent of An unstable scar may result from a

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number of causes, including poor conditions, using the same criteria as for is less than total but which renders an healing or infection. For further clarity, DC 7806. We proposed to evaluate all individual unable to secure or follow a we have added a note under DC 7803 five of these conditions, plus four new substantially gainful occupation. defining unstable scar as one where, for conditions-cutaneous manifestations of In response to these comments, and any reason, there is frequent loss of collagen-vascular diseases not listed because the more specific criteria we covering of skin over the scar. We have elsewhere (DC 7821), papulosquamous have provided for DC 7800 are not as also removed the term ‘‘with frequent disorders not listed elsewhere (DC readily applicable to other skin loss of epidermal covering’’ from the 7822), vitiligo (DC 7823), and diseases conditions as those we proposed, we title and repeated the definition of of keratinization (DC 7824)—under have further revised the criteria for DC’s superficial scar under this code. identical criteria, with evaluation levels 7806, 7809, 7815, 7816, 7817, 7821, One commenter suggested that we not of 100, 50, 30, 10, and zero percent. We 7822, 7823, and 7824. We have removed repeat identical criteria when several proposed a 100-percent evaluation for the proposed criteria, which were the different conditions are evaluated using generalized scaling, crusting, systemic same for all these conditions and have the same criteria. manifestations, pruritus and for being so provided criteria that are more objective While it is feasible to use general disfiguring as to preclude interaction and more specific for each condition. rating formulas when related conditions with the public; a 50-percent evaluation For dermatitis or eczema, DC 7806, are listed consecutively, we have for ulceration or extensive exfoliation or instead of the proposed evaluation repeated criteria under a number of crusting, and systemic manifestations, levels of 100, 50, 30, 10, and zero diagnostic codes in this section for or being so disfiguring as to be percent based on the presence of several reasons. First, conditions repugnant on casual inspection; a 30- scaling, crusting, whether there are evaluated under identical criteria in this percent evaluation for exudation or systemic manifestations, itching, section are not consecutive diagnostic constant itching, or extensive lesions, or exudation, exfoliation, etc., or, codes. The repetition of criteria will being so disfiguring as to be alternatively, on the extent of save time by eliminating the need to disagreeable on casual inspection; a 10- disfigurement, we have now provided seek the appropriate evaluation criteria, percent evaluation for exfoliation, evaluation levels of 60, 30, 10, and zero lessen the chance of error by eliminating exudation, or itching, if involving an percent, as the commenter suggested. As the need to search other pages of the exposed surface or extensive area; and part of the more condition-specific rating schedule, and eliminate the a zero-percent evaluation for minimal criteria we have provided, we have also ‘‘double references’’ that are present exfoliation, exudation or itching, if on a removed the 100-percent evaluation under some diagnostic codes (where the nonexposed surface or small area. We level because dermatitis is rarely totally schedule says to see a certain diagnostic proposed to evaluate a second group of disabling. However, since a 60-percent evaluation level may now be assigned, code and there is a reference under that skin disorders-disfigurement of the diagnostic code to see yet another a claim for individual unemployability, head, face, or neck (DC 7800), acne (DC diagnostic code). Additionally, while when appropriate, is feasible under 38 7828), chloracne (DC 7829), scarring rating specialists may readily locate the CFR 4.16 (a) for those individuals alopecia (DC 7830), and alopecia areata appropriate rating criteria, others who unable to secure or follow a (DC 7831)—solely on the basis of use the schedule may find it more substantially gainful occupation as a disfigurement, as described above under difficult. While eliminating the result of service-connected skin disease. the discussion of DC 7800, and made 80 repetition of criteria would save space, The criteria are based on the extent (in percent the maximum evaluation for we believe that the advantages gained percentage) to which the entire body or this group based on disfigurement that favor their repetition in this case. Where exposed areas are affected by the precludes occupational interaction with a general rating formula applies to condition or on the treatment required. several diagnostic codes that are listed the public. There were several For a 60-percent evaluation for consecutively, the proximity of the comments regarding similarities dermatitis, more than 40 percent of the conditions and the rating formula between the proposed criteria for a 100- entire body or more than 40 percent of eliminates most of the potential percent evaluation for the first group exposed areas must be affected, or problems discussed above. (DC 7806 and conditions rated under constant or near-constant systemic In the former schedule, DC 7806 the same criteria) and the criterion for therapy such as corticosteroids or other (dermatitis or eczema) was evaluated at an 80-percent evaluation for the second immunosuppressive drugs is required. levels of 50, 30, 10, or zero percent. The group (DC 7800 and conditions rated For a 30-percent evaluation, 20 to 40 criteria called for a 50-percent under the same criteria). percent of the entire body or 20 to 40 evaluation for ulceration or extensive One commenter objected to the fact percent of exposed areas must be exfoliation or crusting, with systemic or that when interaction with the public is affected, or systemic therapy for a total nervous manifestations, or being precluded, one group of skin conditions duration of six weeks or more, but not exceptionally repugnant; a 30-percent may be assigned an evaluation of 100 constantly, during the past 12-month evaluation for constant exudation or percent and another group may be period is required. For a 10-percent itching, with extensive lesions, or with assigned no more than 80 percent. evaluation, at least 5 percent, but less marked disfigurement; a 10-percent Another commenter suggested that we than 20 percent, of the entire body, or evaluation for exfoliation, exudation or add an intermediate evaluation level at least 5 percent, but less than 20 itching, if involving an exposed surface between 50 and 100 percent for the skin percent, of exposed areas must be or extensive area; and a zero-percent conditions for which we proposed affected, or intermittent systemic evaluation for slight, if any, exfoliation, evaluation levels of 100, 50, 30, 10, and therapy for a total duration of less than exudation or itching, if on a nonexposed zero percent. An evaluation of 60 six weeks during the past 12-month surface or small area. DC’s 7809 (discoid percent or more for a single disability period is required. For a zero-percent lupus erythematosus), 7815 (bullous would allow a veteran to advance a evaluation, less than 5 percent of the disorders), 7816 (psoriasis), and 7817 claim under 38 CFR 4.16(a), which entire body or less than 5 percent of (exfoliative dermatitis) did not include allows a claim for individual exposed areas must be affected, with no specific evaluation criteria, but were unemployability in cases where there is more than topical therapy required ordinarily rated as analogous a service-connected disability rating that during the past 12-month period. We

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also added an alternative direction to dermatitis (DC 7806), depending upon is unlikely that an evaluation higher rate as disfigurement of the head, face, the predominant disability. than zero percent could have been or neck (DC 7800) or scars (DC’s 7801, Exfoliative dermatitis (DC 7817) is a assigned for vitiligo using those criteria. 7802, 7803, 7804, or 7805), depending disease that may be very severe, and its Disfigurement was another of the upon the predominant disability. This treatment is different from that of most proposed criteria under DC 7806. Of the will provide an alternative means of other skin conditions. It may require the characteristics of disfigurement evaluation in cases, for example, where use of corticosteroids, described under DC 7800, only one— the active disease has been controlled immunosuppressive retinoids, PUVA hypopigmentation—is present in but there are significant residuals, such (psoralen with long-wave ultraviolet-A vitiligo, and that is its only disabling as scarring. These criteria are much light) or UVB (ultraviolet-B light) effect. For one characteristic of more objective than the proposed treatments, or electron beam therapy. It disfigurement of the head, face, or neck criteria and will assure more consistent may also be associated with systemic under DC 7800, a 10-percent evaluation evaluations. manifestations, such as fever, weight is assigned. We have therefore provided We had proposed criteria identical to loss, and hypoproteinemia (low level of evaluation levels for vitiligo of ten and those for DC 7806 for DC’s 7815 protein in the blood, often associated zero percent, providing ten percent if (Bullous disorders (including with edema). We have provided exposed areas are affected, and zero pemphigus vulgaris, pemphigus evaluation levels of 100, 60, 30, 10, and percent if they are not. These criteria foliaceous, bullous pemphigoid, zero percent for this condition, based on will assure consistent evaluations for dermatitis herpetiformis, epidermolysis the extent of involvement of the skin, vitiligo, and they are internally bullosa acquisita, benign chronic whether there are also systemic consistent with the evaluations for familial pemphigus (Hailey-Hailey), and manifestations, and the type and disfigurement of the head, face, or neck, porphyria cutanea tarda)); 7816 duration of treatment. For a 100-percent where the maximum evaluation based (Psoriasis); 7821 (Cutaneous evaluation, generalized involvement of on the presence of hypopigmentation manifestations of collagen-vascular the skin, plus systemic manifestations alone is 10 percent. (such as fever, weight loss, and diseases not listed elsewhere (including We also proposed to evaluate DC hypoproteinemia) must be present, and scleroderma, calcinosis cutis, and 7824, diseases of keratinization constant or near-constant systemic dermatomyositis)); and 7822 (including icthyoses, Darier’s disease, therapy such as therapeutic doses of (Papulosquamous disorders not listed and palmoplantar keratoderma) under elsewhere (including lichen planus, corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long- the same evaluation criteria as those we large or small plaque parapsoriasis, proposed for DC 7806 (dermatitis or pityriasis lichenoides et varioliformis wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or eczema). The further revised criteria for acuta (PLEVA), lymphomatoid electron beam therapy during the past DC 7806 are not entirely appropriate for papulosus, and pityriasis rubra pilaris 12-month period is required. For a 60- evaluating diseases of keratinization. (PRP))). The further revised evaluation percent evaluation, generalized We have therefore provided evaluation criteria we have provided for DC 7806 involvement of the skin without levels of 60, 30, 10, and zero percent for remain appropriate for those four systemic manifestations must be diseases of keratinization, based on conditions, and we have provided present, and constant or near-constant requirements for therapy, the extent of identical criteria under each diagnostic systemic therapy during the past 12- cutaneous involvement, whether there code. month period is required. For a 30- are systemic manifestations, and We also proposed to provide percent evaluation, there can be any whether the skin involvement is evaluation criteria identical to those for extent of involvement of the skin, and constant or episodic. A 60-percent DC 7806 for the evaluation of DC’s 7809 systemic therapy for a total duration of evaluation requires either generalized (Discoid lupus erythematosus or six weeks or more, but not constantly, cutaneous involvement or systemic subacute cutaneous lupus during the past 12-month period is manifestations and constant or near- erythematosus), 7817 (Exfoliative required. For a 10-percent evaluation, constant systemic medication, such as dermatitis (erythroderma)), 7823 there can be any extent of involvement immunosuppressive retinoids, during (Vitiligo), and 7824 (Diseases of of the skin, and systemic therapy for a the past 12-month period. A 30-percent keratinization). However, the proposed total duration of less than six weeks evaluation requires either generalized criteria were not specific enough to during the past 12-month period is cutaneous involvement or systemic these conditions to assure consistent required. For a zero-percent evaluation, manifestations and intermittent evaluations, and the revised criteria for there can be any extent of involvement systemic medication, such as DC 7806 are also not appropriate for of the skin with no more than topical immunosuppressive retinoids, for a total their evaluation. We have therefore therapy required during the past 12- duration of six weeks or more, but not provided more disease-specific month period. These criteria are specific constantly, during the past 12-month evaluation criteria for these conditions, to this condition and are more objective period. A 10-percent evaluation requires and also revised the evaluation levels in than the proposed criteria. localized or episodic cutaneous order to make them appropriate for the We proposed to evaluate vitiligo (DC involvement and intermittent systemic usual range of severity of each 7823) under the same evaluation criteria medication, such as individual condition. The evaluation as those we proposed for DC 7806 immunosuppressive retinoids, for a total criteria for each of these conditions is (dermatitis or eczema). Vitiligo is a duration of less than six weeks during discussed in more detail below. condition in which the only abnormal the past 12-month period. A zero- Discoid lupus erythematosus (DC finding is hypopigmented skin; the only percent evaluation is assigned if no 7809) can present in a number of treatment for it is cosmetic. The more than topical therapy was required different ways (scaling, plaques, proposed criteria, however, included during the past 12-month period. These atrophy, erythema, scars, etc.), and we findings such as ulceration, itching, criteria are more appropriate for the have therefore directed that it be rated crusting, exfoliation, and systemic evaluation of diseases of keratinization. as disfigurement (DC 7800), scars (DC’s manifestations, none of which is In addition, we have added to the title 7801, 7802, 7803, 7804, or 7805), or specific to, or even occurs in, vitiligo. It some of the specific diseases that make

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up the category of diseases of similar to that used for internal percent if it is uncontrolled by systemic keratinization-icthyoses, Darier’s malignancies. We have therefore added immunosuppressive therapy and that disease, and palmoplantar keratoderma. a note under DC’s 7818 and 7833 stating we should replace the words Under the former schedule, that if a skin malignancy requires ‘‘frequent,’’ ‘‘regular,’’ and ‘‘occasional’’ leishmaniasis, both American (DC 7807) therapy that is comparable to that used with more objective criteria. and Old World (DC 7808), were for internal malignancies, i.e., systemic We agree that a higher level of ordinarily evaluated under the same chemotherapy, X-ray therapy more evaluation is warranted and have criteria as DC 7806 (eczema). We extensive than to the skin, or surgery therefore added a 60-percent evaluation proposed to evaluate leishmaniasis as more extensive than wide local level for urticaria when there are at least disfigurement, scars, or dermatitis, excision, a 100-percent evaluation will four debilitating episodes during the depending upon the predominant be assigned from the date of onset of past 12-month period despite disability. One commenter suggested treatment, and will continue, with a continuous immunosuppressive that we include evaluation criteria for mandatory VA examination six months therapy. In conjunction with this systemic manifestations of the disease following the completion of such change, we made the next lower under these codes. In our judgment, antineoplastic treatment, and any evaluation level 30 percent instead of 40 there is no need to include criteria for change in evaluation based upon that or percent, and based it on debilitating the systemic forms of leishmaniasis any subsequent examination subject to episodes occurring at least four times here, because evaluation criteria for the provisions of 38 CFR 3.105(e). Those during the past 12-month period but visceral leishmaniasis are provided provisions require a 60-day notice requiring only intermittent systemic under DC 6301, in the section of the before VA reduces an evaluation and an immunosuppressive therapy for control, rating schedule on infectious diseases, additional 60-day notice before the and made the level below that 10 immune disorders and nutritional reduced evaluation takes effect. The percent instead of 20 percent, and based deficiencies (38 CFR 4.88b). However, revision requires a current examination it on recurrent episodes occurring at as a reminder to rating specialists, we to assure that all residuals are least four times during the past 12- have added a note under each of these documented, and also offers the veteran month period and that respond to codes directing that non-cutaneous more contemporaneous notice of any treatment with antihistamines or (visceral) leishmaniasis be evaluated proposed action and expands the sympathomimetics. These evaluation under DC 6301 (visceral leishmaniasis). veteran’s opportunity to present levels are consistent with the ranges for In the former schedule and in the evidence showing that the proposed other skin diseases, and these criteria proposed rule, DC 7811 (tuberculosis action should not be taken. If there has respond to the comments by providing luposa (lupus vulgaris), active or been no local recurrence or metastasis, a higher evaluation level for the most inactive) was directed to be rated under evaluation will then be made on severe cases of urticaria, and by §§ 4.88b or 4.89. Section 4.88b was residuals. This will assure that the providing more objective criteria. The redesignated § 4.88c in a separate evaluation of these neoplasms, when more objective criteria will assure more rulemaking, so we have corrected the they require treatment that is consistent evaluations. reference under DC 7811 to codes to be We proposed to add primary comparable to the treatment of internal used for the evaluation of tuberculosis cutaneous vasculitis as DC 7826, to be malignancies, is commensurate with of the skin to §§ 4.88c and 4.89. evaluated on the basis of disfigurement, that type of treatment and is consistent Malignant neoplasms of the skin (DC scars, or urticaria, depending upon the with the method of evaluating 7818) were evaluated on scars, predominant disability. Because the malignancies in other systems. If disfigurement, etc., on the extent of revised evaluation criteria for constitutional symptoms, and on treatment is confined to the skin, the disfigurement (DC 7800) and urticaria physical impairment, in the former provisions for a 100-percent evaluation (DC 7825) are more specific to those schedule. We proposed to evaluate do not apply. Since we have provided conditions than the proposed criteria based on impairment of function, a separate diagnostic code for malignant were, they are less appropriate for the disfigurement, or scars. One commenter melanoma, we added to the title of evaluation of primary cutaneous stated that these criteria are inadequate malignant skin neoplasms (DC 7818) for vasculitis, which is a chronic, but for malignant melanoma because the clarity, ‘‘other than malignant episodic, condition. We have therefore condition is potentially lethal. melanoma.’’ provided a separate set of more On further consideration, we have We proposed to add urticaria to the objective criteria with evaluation levels added a separate diagnostic code, 7833, rating schedule as DC 7825, with of 60, 30, and 10 percent for primary to the rating schedule for malignant evaluation levels of 40, 20, and zero cutaneous vasculitis, based on the melanoma of the skin because it is a percent. We proposed to call for a 40- frequency of debilitating episodes and common malignancy and often behaves percent evaluation if there is either a the type and frequency of treatment. A differently, particularly more need for regular immunosuppressive 60-percent evaluation calls for recurrent aggressively, than other skin therapy or the presence of debilitating episodes occurring at least malignancies. All residuals that might uncontrollable episodes despite therapy; four times during the past 12-month occur from any skin malignancy can be a 20-percent evaluation if there is a need period despite continuous evaluated under the proposed criteria for frequent immunosuppressive immunosuppressive therapy; a 30- for malignant neoplasms of the skin therapy; and a zero-percent evaluation if percent evaluation calls for recurrent because ‘‘impairment of function’’ the condition is occasional or debilitating episodes occurring at least covers virtually any disability that asymptomatic. We received two four times during the past 12-month might result, and we propose to provide comments about these criteria. One period and requiring intermittent the same evaluation criteria for commenter said that urticaria should be systemic immunosuppressive therapy malignant melanoma as for other skin evaluated at 60 percent if it is for control; and a ten-percent evaluation malignancies. However, malignant uncontrollable despite any therapy, and calls for recurrent episodes occurring melanoma, and at times other at 50 percent if it requires frequent one to three times during the past 12- malignancies of the skin, may require a treatment. The other said that urticaria month period and requiring intermittent level of antineoplastic treatment that is should be evaluated higher than 40 systemic immunosuppressive therapy

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for control. These criteria are more based on the extent of involvement by which would require a subjective specific to this condition and will result acne, its location, and whether it is deep assessment, but are based instead on the in more consistent evaluations. We have or superficial. We have provided a 30- objectively determinable effects of the also provided an alternative direction to percent evaluation for deep acne condition and are consistent with the rate as disfigurement of the head, face, (meaning deep inflamed nodules and recommendations of our consultants. or neck (DC 7800) or scars (DC’s 7801, pus-filled cysts) affecting 40 percent or We edited the language of the note 7802, 7803, 7804, or 7805), depending more of the face and neck; a 10-percent regarding under painful superficial scars upon the predominant disability. These evaluation for deep acne affecting less (DC 7804) for clarity, and the notes are consistent with the criteria than 40 percent of the face and neck, or under DC’s 7801 and 7802 regarding recommended by our consultants. deep acne other than on the face and scars in widely separated areas for the Similarly, we proposed to add neck; and a zero-percent evaluation for same reason, but these are not erythema multiforme (toxic epidermal superficial acne (comedones, papules, substantive changes. necrolysis) as DC 7827, with evaluation pustules, superficial cysts) of any For more clarity and objectivity, we based on disfigurement, scars, or extent. We have provided an alternative have revised the language in DC 7802 urticaria, depending upon the direction to rate acne and chloracne as from ‘‘area or areas approximating 144 predominant disability. Because the disfigurement of the head, face, or neck square inches (929 sq. cm.)’’ to ‘‘area or revised evaluation criteria for (DC 7800) or scars (DC’s 7801, 7802, areas of 144 square inches (929 sq. cm.) disfigurement (DC 7800) and urticaria 7803, 7804, or 7805), depending upon or greater.’’ We revised the title of DC (DC 7825) are more specific to those the predominant disability. This change 7813, Dermatophytosis, to include conditions than the proposed criteria will allow more leeway in assessing ‘‘(ringworm: of body, tinea corporis; of were, they are less appropriate for the which type of disability best represents head, tinea capitis; of feet, tinea pedis; evaluation of erythema multiforme. We the findings in a particular case of acne of beard area, tinea barbae; of nails, have therefore provided a separate set of or chloracne. tinea unguium; of inguinal area (jock more objective criteria for erythema We proposed to evaluate scarring itch), tinea cruris)’’ to clarify what is multiforme, which is an episodic alopecia (DC 7830) and alopecia areata included. condition, with levels of 60, 30, and 10 (DC 7831) on the basis of disfigurement. VA appreciates the comments percent, based on the frequency of One commenter suggested that the submitted in response to the proposed debilitating episodes and the type and criteria for DC’s 7830 and 7831 take into rule, which is now adopted with the frequency of treatment. A 60-percent amendments noted above. evaluation calls for recurrent account the ability or inability to debilitating episodes at least four times improve appearance with a hairpiece or Unfunded Mandates wig. We have reconsidered the criteria during the past 12-month period despite The Unfunded Mandates Reform Act for these types of alopecia in view of our ongoing immunosuppressive therapy; a requires, at 2 U.S.C. 1532, that agencies changed disfigurement criteria, which 30-percent evaluation calls for recurrent prepare an assessment of anticipated are not appropriate for these conditions, debilitating episodes at least four times costs and benefits before developing any and have provided evaluation criteria during the past 12-month period despite rule that may result in an expenditure based instead on the extent of ongoing immunosuppressive therapy; by State, local, or tribal governments, in involvement by alopecia. We have and a ten-percent evaluation calls for the aggregate, or by the private sector of provided evaluation levels of 20, 10, recurrent episodes that respond to $100 million or more in any given year. and zero percent for scarring alopecia treatment with antihistamines or This rule would have no consequential and ten and zero percent for alopecia sympathomimetics. We also provided effect on State, local or tribal areata. These levels are commensurate an alternative direction to rate as governments. disfigurement of the head, face, or neck with the range of disability these (DC 7800) or scars (DC’s 7801, 7802, conditions produce, according to our Paperwork Reduction Act 7803, 7804, or 7805), depending upon contract consultant specialists, who This document contains no provisions the predominant disability. These reviewed the rating schedule and made constituting a collection of information criteria are identical to the criteria for recommendations for changes to help under the Paperwork Reduction Act (44 DC 7826, since both conditions are fulfill the goals of revising and updating U.S.C. 3501–3520). episodic and require similar treatment, the medical criteria. For scarring and they are consistent with the criteria alopecia, which usually follows injury, Regulatory Flexibility Act recommended by our consultants. infection, burns, etc., and shows tissue The Secretary hereby certifies that We proposed that acne (DC 7828) and loss and scarring, we have provided a this regulatory amendment will not chloracne (DC 7829), which have 20-percent evaluation if the condition have a significant economic impact on similar manifestations, be evaluated affects more than 40 percent of the a substantial number of small entities as under the same criteria as DC 7800 scalp; a 10-percent evaluation if it they are defined in the Regulatory (disfigurement of the head, face, or affects 20 to 40 percent of the scalp; and Flexibility Act (RFA), 5 U.S.C. 601–612. neck). One commenter suggested that a zero-percent evaluation if it affects The reason for this certification is that acne on nonexposed areas may warrant less than 20 percent of the scalp. For this amendment would not directly a compensable evaluation if there are alopecia areata, where scarring and affect any small entities. Only VA extensive painful cysts. The proposed atrophic changes are not present, we beneficiaries could be directly affected. criteria did not provide for a have provided a 10-percent evaluation Therefore, pursuant to 5 U.S.C. 605(b), compensable evaluation for such for generalized involvement of the body, this amendment is exempt from the manifestations. and a zero-percent evaluation if the initial and final regulatory flexibility We agree that acne involving condition is limited to the scalp and analysis requirements of sections 603 nonexposed areas may be disabling, face. These criteria are clear and and 604. more because of the inflammatory objective and will assure consistency in aspects than the disfiguring aspects. We evaluation. They do not take into Executive Order 12866 have therefore established evaluation account the potential improvement of This regulatory amendment has been criteria for acne and chloracne that are appearance with a hairpiece or wig, reviewed by the Office of Management

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and Budget under the provisions of Approved: May 17, 2002. Authority: 38 U.S.C. 1155, unless Executive Order 12866, Regulatory Anthony J. Principi, otherwise noted. Planning and Review, dated September Secretary of Veterans Affairs. Subpart B—Disability Ratings 30, 1993. For the reasons set out in the The Catalog of Federal Domestic preamble, 38 CFR part 4, subpart B, is 2. Section 4.118 is revised to read as Assistance program numbers are 64.104 and amended as set forth below: follows: 64.109. PART 4—SCHEDULE FOR RATING § 4.118 Schedule of ratings—skin. List of Subjects in 38 CFR Part 4 DISABILITIES Disability benefits, Individuals with 1. The authority citation for part 4 disabilities, Pensions, Veterans. continues to read as follows:

Rating

7800 Disfigurement of the head, face, or neck: With visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement ...... 80 With visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement .... 50 With visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement .. 30 With one characteristic of disfigurement ...... 10 Note (1):The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (2): Rate tissue loss of the auricle under DC 6207 (loss of auricle) and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate. Note (3): Take into consideration unretouched color photographs when evaluating under these criteria. 7801 Scars, other than head, face, or neck, that are deep or that cause limited motion: Area or areas exceeding 144 square inches (929 sq.cm.) ...... 40 Area or areas exceeding 72 square inches (465 sq. cm.) ...... 30 Area or areas exceeding 12 square inches (77 sq. cm.) ...... 20 Area or areas exceeding 6 square inches (39 sq. cm.) ...... 10 Note (1): Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. Note (2): A deep scar is one associated with underlying soft tissue damage. 7802 Scars, other than head, face, or neck, that are superficial and that do not cause limited motion: Area or areas of 144 square inches (929 sq. cm.) or greater ...... 10 Note (1): Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. Note (2): A superficial scar is one not associated with underlying soft tissue damage. 7803 Scars, superficial, unstable ...... 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): A superficial scar is one not associated with underlying soft tissue damage. 7804 Scars, superficial, painful on examination ...... 10 Note (1): A superficial scar is one not associated with underlying soft tissue damage. Note (2): In this case, a 10-percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. (See § 4.68 of this part on the amputation rule.) 7805 Scars, other; Rate on limitation of function of affected part. 7806 Dermatitis or eczema. More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period ...... 60 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period ...... 30 At least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period ...... 10 Less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period ...... 0 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 7807 American (New World) leishmaniasis (mucocutaneous, espundia): Rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability.

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Rating

Note: Evaluate non-cutaneous (visceral) leishmaniasis under DC 6301 (visceral leishmaniasis). 7808 Old World leishmaniasis (cutaneous, Oriental sore): Rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. Note: Evaluate non-cutaneous (visceral) leishmaniasis under DC 6301 (visceral leishmaniasis). 7809 Discoid lupus erythematosus or subacute cutaneous lupus erythematosus: Rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. Do not combine with ratings under DC 6350. 7811 Tuberculosis luposa (lupus vulgaris), active or inactive: Rate under §§ 4.88c or 4.89, whichever is appropriate. 7813 Dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris): Rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 7815 Bullous disorders (including pemphigus vulgaris, pemphigus foliaceous, bullous pemphigoid, dermatitis herpetiformis, epidermolysis bullosa acquisita, benign chronic familial pemphigus (Hailey-Hailey), and porphyria cutanea tarda): More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period ...... 60 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period ...... 30 At least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period ...... 10 Less than 5 percent of the entire body or exposed areas affected, and; no more than topical therapy required during the past 12-month period ...... 0 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 7816 Psoriasis: More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period ...... 60 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period ...... 30 At least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period ...... 10 Less than 5 percent of the entire body or exposed areas affected, and; no more than topical therapy required during the past 12-month period ...... 0 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 7817 Exfoliative dermatitis (erythroderma): Generalized involvement of the skin, plus systemic manifestations (such as fever, weight loss, and hypoproteinemia), and; constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required during the past 12-month period ...... 100 Generalized involvement of the skin without systemic manifestations, and; constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required during the past 12-month period ...... 60 Any extent of involvement of the skin, and; systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period ...... 30 Any extent of involvement of the skin, and; systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required for a total duration of less than six weeks during the past 12-month period ...... 10 Any extent of involvement of the skin, and; no more than topical therapy required during the past 12-month period ...... 0 7818 Malignant skin neoplasms (other than malignant melanoma): Rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or impairment of function. Note: If a skin malignancy requires therapy that is comparable to that used for systemic malignancies, i.e., systemic chemotherapy, X-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision, a 100-percent evaluation will be assigned from the date of onset of treatment, and will continue, with a mandatory VA examination six months following the completion of such antineoplastic treatment, and any change in evaluation based upon that or any subsequent examination will be subject to the provisions of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, evaluation will then be made on residuals. If treatment is confined to the skin, the provisions for a 100-percent evaluation do not apply. 7819 Benign skin neoplasms: Rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or impairment of function. 7820 Infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases): Rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 7821 Cutaneous manifestations of collagen-vascular diseases not listed elsewhere (including scleroderma, calcinosis cutis, and dermatomyositis): More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period ...... 60 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period ...... 30

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Rating

At least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period ...... 10 Less than 5 percent of the entire body or exposed areas affected, and; no more than topical therapy required during the past 12-month period ...... 0 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 7822 Papulosquamous disorders not listed elsewhere (including lichen planus, large or small plaque parapsoriasis, pityriasis lichenoides et varioliformis acuta (PLEVA), lymphomatoid papulosus, and pityriasis rubra pilaris (PRP)): More than 40 percent of the entire body or more than 40 percent of exposed areas affected, and; constant or near-constant systemic medications or intensive light therapy required during the past 12-month period ...... 60 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy or intensive light therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period ...... 30 At least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; systemic therapy or intensive light therapy required for a total duration of less than six weeks during the past 12-month period ...... 10 Less than 5 percent of the entire body or exposed areas affected, and; no more than topical therapy required during the past 12-month period ...... 0 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 7823 Vitiligo: With exposed areas affected ...... 10 With no exposed areas affected ...... 0 7824 Diseases of keratinization (including icthyoses, Darier’s disease, and palmoplantar keratoderma): With either generalized cutaneous involvement or systemic manifestations, and; constant or near-constant systemic medication, such as immunosuppressive retinoids, required during the past 12-month period ...... 60 With either generalized cutaneous involvement or systemic manifestations, and; intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of six weeks or more, but not constantly, during the past 12-month period ...... 30 With localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of less than six weeks during the past 12-month period ...... 10 No more than topical therapy required during the past 12-month period ...... 0 7825 Urticaria: Recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy ...... 60 Recurrent debilitating episodes occurring at least four times during the past 12-month period, and; requiring intermittent systemic immunosuppressive therapy for control ...... 30 Recurrent episodes occurring at least four times during the past 12-month period, and; responding to treatment with antihistamines or sympathomimetics ...... 10 7826 Vasculitis, primary cutaneous: Recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy ...... 60 Recurrent debilitating episodes occurring at least four times during the past 12-month period, and; requiring intermittent systemic immunosuppressive therapy for control ...... 30 Recurrent episodes occurring one to three times during the past 12-month period, and; requiring intermittent systemic immunosuppressive therapy for control ...... 10 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 7827 Erythema multiforme; Toxic epidermal necrolysis: Recurrent debilitating episodes occurring at least four times during the past 12-month period despite ongoing immunosuppressive therapy ...... 60 Recurrent episodes occurring at least four times during the past 12-month period, and; requiring intermittent systemic immunosuppressive therapy ...... 30 Recurrent episodes occurring during the past 12-month period that respond to treatment with antihistamines or sympathomimetics, or; one to three episodes occurring during the past 12-month period requiring intermittent systemic immunosuppressive therapy ...... 10 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 7828 Acne: Deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck ...... 30 Deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck ...... 10 Superficial acne (comedones, papules, pustules, superficial cysts) of any extent ...... 0 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 7829 Chloracne: Deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck ...... 30 Deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck ...... 10 Superficial acne (comedones, papules, pustules, superficial cysts) of any extent ...... 0 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 7830 Scarring alopecia: Affecting more than 40 percent of the scalp ...... 20

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Rating

Affecting 20 to 40 percent of the scalp ...... 10 Affecting less than 20 percent of the scalp ...... 0 7831 Alopecia areata: With loss of all body hair ...... 10 With loss of hair limited to scalp and face ...... 0 7832 Hyperhidrosis: Unable to handle paper or tools because of moisture, and unresponsive to therapy ...... 30 Able to handle paper or tools after therapy ...... 0 7833 Malignant melanoma: Rate as scars (DC’s 7801, 7802, 7803, 7804, or 7805), disfigurement of the head, face, or neck (DC 7800), or impairment of function (under the appropriate body system). Note: If a skin malignancy requires therapy that is comparable to that used for systemic malignancies, i.e., systemic chemotherapy, X-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision, a 100-percent evaluation will be assigned from the date of onset of treatment, and will continue, with a mandatory VA examination six months following the completion of such antineoplastic treatment, and any change in evaluation based upon that or any subsequent examination will be subject to the provisions of § 3.105(e). If there has been no local recurrence or metastasis, evaluation will then be made on residuals. If treatment is confined to the skin, the provisions for a 100-percent evaluation do not apply.

(Authority: 38 U.S.C. 1155) claim for veterans’ benefits have always Administrative Procedure Act been highly regulated by Congress. [FR Doc. 02–19331 Filed 7–30–02; 8:45 am] Because this rule merely implements BILLING CODE 8320–01–P From 1864 until 1988, such fees were limited to $10.00. In 1988, Congress a change in the statute, notice and passed the ‘‘Veterans’ Judicial Review public comment are unnecessary. 5 DEPARTMENT OF VETERANS Act’’ (VJRA), Pub. L. No. 100–687, Div. U.S.C. 553(b)(B). Accordingly, we are AFFAIRS A, 102 Stat. 4105, which permitted publishing this amendment as a final agents and attorneys to charge a rule. 38 CFR Part 20 ‘‘reasonable fee’’ for services provided Unfunded Mandates in a case when the following three RIN 2900–AL25 conditions were met: The Unfunded Mandates Reform Act Board of Veterans’ Appeals: Rules of • The Board made its first final of 1995 (2 U.S.C. 1532) requires that Practice—Attorney Fee Matters; Notice decision in the case; agencies prepare an assessment of of Disagreement Requirement • The Board’s first final decision anticipated costs and benefits before developing any rule that may result in AGENCY: Department of Veterans Affairs. followed a ‘‘notice of disagreement’’ filed with VA on or after the enactment an expenditure by State, local, or tribal ACTION: Final rule. date of the VJRA, i.e., November 18, governments, in the aggregate, or by the SUMMARY: This document amends the 1988; and private sector of $100 million or more regulations of the Department of • The agent or attorney was retained in any given year. This final rule would Veterans Affairs (VA) relating to with respect to such case within one have no consequential effect on State, attorney fees. We are removing the year of the date of the Board s first final local, or tribal governments. decision. requirement that, in order for an agent Paperwork Reduction Act or attorney to charge a fee for services 38 U.S.C. 5904(c)(1); Pub. L. No. 100– provided in a case, there must have 687, Div. A, § 403, 102 Stat. 4105, 4122, This document contains no provisions been a notice of disagreement filed in reprinted in 38 U.S.C.A. 5904 note constituting a collection of information the case on or after November 18, 1988. (Applicability to Attorneys Fees) (notice under the Paperwork Reduction Act (44 This change is required by a statute of disagreement date). U.S.C. 3501–3520). enacted in December 2001. In § 603(b) of the ‘‘Veterans Education Regulatory Flexibility Act DATES: Effective Date: December 27, and Benefits Expansion Act of 2001’’, 2001. Pub. L. No. 107–103, 115 Stat. 976, 999 The Secretary hereby certifies that FOR FURTHER INFORMATION CONTACT: (Dec. 27, 2001), Congress repealed the this final rule will not have a significant Steven L. Keller, Senior Deputy Vice requirement that, in order for an agent economic impact on a substantial Chairman, Board of Veterans’ Appeals, or attorney to charge a fee for services number of small entities as they are Department of Veterans Affairs, 810 provided in a case, the Board’s first final defined in the Regulatory Flexibility Vermont Avenue, NW, Washington, DC decision must have followed a notice of Act, 5 U.S.C. 601–612. This amendment 20420, (202) 565–5978. disagreement filed on or after November will not directly affect any small SUPPLEMENTARY INFORMATION: The Board 18, 1988. This document implements entities. Only individuals could be of Veterans’ Appeals (Board) is an that change in VA’s regulations. directly affected. Therefore, pursuant to administrative body that decides This change does not affect the 5 U.S.C. 605(b), this final rule is exempt appeals from denials of claims for requirements that, in order for an agent from the initial and final regulatory veterans’ benefits. The Board’s Rules of or attorney to charge a fee for services flexibility analyses requirements of Practice (38 CFR part 20) contain VA’s provided in a case, (1) the Board must sections 603 and 604. regulations relating to attorney-fee have made its first final decision in that matters. case, and (2) the agent or attorney must List of Subjects in 38 CFR Part 20 The issues of whether and how much have been retained with respect to such Administrative practice and an agent or attorney may charge for case within one year of the date of the services provided in a case involving a Board’s first final decision. procedure, Claims, Veterans.

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