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 VerDate Jul<25>2002 10:13 Jul 30, 2002 Jkt 197001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\31JYR1.SGM pfrm17 PsN: 31JYR1 Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations 49591 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 §