80 FR 42040 - Agency Interpretation of Prosthetic Replacement of a Joint

DEPARTMENT OF VETERANS AFFAIRS

Federal Register Volume 80, Issue 136 (July 16, 2015)

Page Range		42040-42042
FR Document		2015-17417

The Department of Veterans Affairs is publishing interpretive guidance for diagnostic codes (DC) 5051 through 5056, which establish rating criteria for prosthetic implant replacements of joints of the musculoskeletal system. The Schedule for Rating Disabilities under these DCs allows for a 1-year, 100-percent disability evaluation upon prosthetic replacement of a joint. This final rule clarifies that VA's longstanding interpretation of DCs 5051 through 5056 is that a 100- percent evaluation will be in place for a period of one year when the total joint, rather than the partial joint, has been replaced by a prosthetic implant.

Federal Register, Volume 80 Issue 136 (Thursday, July 16, 2015)

[Federal Register Volume 80, Number 136 (Thursday, July 16, 2015)]
[Rules and Regulations]
[Pages 42040-42042]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-17417]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AP38

Agency Interpretation of Prosthetic Replacement of a Joint

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs is publishing interpretive
guidance for diagnostic codes (DC) 5051 through 5056, which establish
rating criteria for prosthetic implant replacements of joints of the
musculoskeletal system. The Schedule for Rating Disabilities under
these DCs allows for a 1-year, 100-percent disability evaluation upon
prosthetic replacement of a joint. This final rule clarifies that VA's
longstanding interpretation of DCs 5051 through 5056 is that a 100-
percent evaluation will be in place for a period of one year when the
total joint, rather than the partial joint, has been replaced by a
prosthetic implant.

DATES: Effective Date: This final rule is effective July 16, 2015.

FOR FURTHER INFORMATION CONTACT: Stephanie Li, Chief, Regulations Staff
(211D), Compensation Service, Department of Veterans Affairs, 810
Vermont Avenue NW., Washington, DC 20420, (202) 461-9700. (This is not
a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: Diagnostic codes (DCs) 5051 through 5056,
under 38 CFR 4.71a, govern the Schedule for Rating Disabilities (Rating
Schedule) for prosthetic replacement of joints under the
musculoskeletal system. These DCs state that a 100-percent evaluation
will be sustained for 1 year following the prosthetic replacement of
the named joint. This period of total disability evaluation is designed
to provide temporary convalescence for major surgery, such as total
joint replacement. Following the convalescent period, a Department of
Veterans Affairs (VA) or VA-approved examination is conducted to
determine any residual disability, and a new rating evaluation is
assigned based on such residuals.
The field of orthopedic medicine has progressed to such a degree
that total prosthetic replacement of a joint is not always necessary.
Surgical procedures, sometimes referred to generally as ``joint
replacements,'' may only require partial replacement of the disabled
joint.\1\ Partial replacement has the benefit of not requiring the same
length of time for convalescence.\2\ The progression of this area of
medical science has raised an issue as to whether a veteran who
undergoes a partial replacement of a joint is entitled to the 100-
percent rating evaluation during the convalescent period under DCs 5051
through 5056.
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\1\ ``Patients with osteoarthritis that is limited to just one
part of the knee may be candidates for unicompartmental knee
replacement (also called a `partial' knee replacement).''
``Unicompartmental Knee Replacement,'' American Academy of
Orthopedic Surgeons, Ortho Info, 1 (June 2010), http://orthoinfo.aaos.org/topic.cfm?topic=A00585 (last visited Mar. 19,
2014).
\2\ Id.
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VA has long interpreted ``joint replacement,'' as used in Sec.
4.71a, to mean total joint replacement. Recently, the United States
Court of Appeals for Veterans Claims (Veterans Court) issued a
precedential panel decision upholding VA's interpretation of Sec.
4.71a. In Hudgens v. Gibson, 26 Vet. App. 558 (2014), the Veterans
Court upheld the Board of Veterans' Appeals decision that DC 5055
applies only to total knee prosthetic replacements. The Veterans Court
determined that the plain language of DC 5055 was unambiguous. Id. at
561. The Veterans Court found that the medical definition of ``knee
joint'' encompassed three distinct compartments of the knee and that
``[n]othing in the plain language of the regulation indicates that it
applies to replacements of less than a complete knee joint . . .''. Id.
In addition, the Veterans Court cited DC 5054, for hip joint
prosthesis, as an example of when VA intends to evaluate partial joint
replacement. Diagnostic Code 5054, also under Sec. 4.71a, provides
evaluation criteria for ``[p]rosthetic replacement of the head of the
femur or of the acetabulum'' (italics added), which together make up
the hip joint. Id. The Veterans Court concluded that ``DC 5055 applies
only to total knee replacements, as the Secretary has demonstrated in
other parts of Sec. 4.71(a) [sic] that he is aware of how to include
partial joint replacements as part of disability rating criteria in
other parts of Sec. 4.71(a) [sic].'' Id. at 562.
In view of the above court decision, and VA's longstanding
interpretation, VA is amending its regulations to clarify that the
language of Sec. 4.71a, Prosthetic Implants, which refers to
replacement of

[[Page 42041]]

the named joint, refers to replacement of the joint as a whole, except
where it is otherwise stated under DC 5054. To avoid confusion in
applying these DCs, VA is adding an explanatory note under 38 CFR
4.71a, directly above DCs 5051 through 5056, which notifies readers
that ``prosthetic replacement'' means a total, not a partial, joint
replacement, except as it is otherwise stated under DC 5054.
This final rule provides interpretive guidance on VA's meaning of
``prosthetic replacement'' as noted in the preceding discussion and
consistent with the recent Hudgens v. Gibson decision. This guidance
does not represent a new agency interpretation or a substantive change
to the eligibility criteria for any VA benefit; rather, it provides
notice regarding VA's longstanding interpretation of its regulation on
prosthetic implants, which the Veterans Court recently upheld. As such,
VA is publishing this final rule without opportunity for public
comment.

Administrative Procedure Act

The Secretary of Veterans Affairs finds that this is an
interpretive rule, which, under 5 U.S.C. 553(b)(A), VA may promulgate
without prior opportunity for public comment. See also Perez v.
Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1206 (2015). This rule merely
restates VA's longstanding interpretation of its regulation, which the
Veterans Court upheld. Therefore, a prior opportunity for notice and
comment is unnecessary. Additionally, based on the above cited
justification, VA finds good cause to dispense with the delayed-
effective-date requirement of 5 U.S.C. 553(d)(2).

Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct 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 12866 (Regulatory Planning and Review) defines a
``significant regulatory action'' requiring review by the Office of
Management and Budget (OMB), unless OMB waives such review, as ``any
regulatory action that is likely to result in a rule that may: (1) Have
an annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; (2)
Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) Materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) Raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined, and it has
been determined not to be a significant regulatory action under
Executive Order 12866. VA's impact analysis can be found as a
supporting document at http://www.regulations.gov, usually within 48
hours after the rulemaking document is published. Additionally, a copy
of this rulemaking and its impact analysis are available on VA's Web
site at http://www.va.gov/orpm/, by following the link for ``VA
Regulations Published From FY 2004 Through Fiscal Year to Date.''

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). This final rule will directly affect only individuals and will
not directly affect small entities. Therefore, pursuant to 5 U.S.C.
605(b), this rulemaking is exempt from the initial and final regulatory
flexibility analysis requirements of sections 603 and 604.

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

Paperwork Reduction Act

This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this document are 64.100, Automobiles and
Adaptive Equipment for Certain Disabled Veterans and Members of the
Armed Forces; 64.104, Pension for Non-Service-Connected Disability for
Veterans; 64.106, Specially Adapted Housing for Disabled Veterans;
64.109, Veterans Compensation for Service-Connected Disability; 64.116,
Vocational Rehabilitation for Disabled Veterans.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this
document 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. Robert L.
Nabors II, Chief of Staff, Department of Veterans Affairs, approved
this document on July 6, 2015, for publication.

List of Subjects in 38 CFR Part 4

Disability benefits, Pensions, Veterans.

Dated: July 13, 2015.
William F. Russo,
Acting Director, Office of Regulation Policy & Management, Office of
the General Counsel, Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR part 4 as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

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

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

Subpart B--Disability Ratings

0
2. In Sec. 4.71a, add a note preceding the footnote after the table
``Prosthetic Implants'' to read as follows:

Sec. 4.71a Schedule of ratings--musculoskeletal system.

* * * * *

PROSTHETIC IMPLANTS

* * * * *

Note: The term ``prosthetic replacement'' in diagnostic codes
5051 through 5056 means a total replacement of the named joint.
However, in DC 5054, ``prosthetic

[[Page 42042]]

replacement'' means a total replacement of the head of the femur or
of the acetabulum.

* * * * *

0
3. Amend appendix A to part 4 by revising the entries for diagnostic
codes 5051 through 5056 to read as follows:

Appendix A to Part 4--Table of Amendments and Effective Dates Since 1946
------------------------------------------------------------------------
Diagnostic
Sec. Code No.
------------------------------------------------------------------------

* * * * * * *
5051 Added September 22, 1978. Note
July 16, 2015.
5052 Added September 22, 1978. Note
July 16, 2015.
5053 Added September 22, 1978. Note
July 16, 2015.
5054 Added September 22, 1978. Note
July 16, 2015.
5055 Added September 22, 1978. Note
July 16, 2015.
5056 Added September 22, 1978. Note
July 16, 2015.

* * * * * * *
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[FR Doc. 2015-17417 Filed 7-15-15; 8:45 am]
BILLING CODE 8320-01-P

42042 Federal Register / Vol. 80, No. 136 / Thursday, July 16, 2015 / Rules and Regulations

replacement’’ means a total replacement of ■ 3. Amend appendix A to part 4 by
the head of the femur or of the acetabulum. revising the entries for diagnostic codes
* * * * * 5051 through 5056 to read as follows:

APPENDIX A TO PART 4—TABLE OF AMENDMENTS AND EFFECTIVE DATES SINCE 1946
Diagnostic
Sec. Code No.

* * * * * * *
5051 Added September 22, 1978. Note July 16, 2015.
5052 Added September 22, 1978. Note July 16, 2015.
5053 Added September 22, 1978. Note July 16, 2015.
5054 Added September 22, 1978. Note July 16, 2015.
5055 Added September 22, 1978. Note July 16, 2015.
5056 Added September 22, 1978. Note July 16, 2015.

* * * * * * *

[FR Doc. 2015–17417 Filed 7–15–15; 8:45 am] Although listed in the index, some contribute to nonattainment or interfere
BILLING CODE 8320–01–P information is not publicly available, with maintenance of the 2008 Pb and
e.g., Confidential Business Information 2010 NO2 NAAQS in any other state. On
(CBI) or other information the disclosure May 27, 2015, the EPA proposed to find
ENVIRONMENTAL PROTECTION of which is restricted by statute. Certain that the Washington SIP meets the CAA
AGENCY other material, such as copyrighted section 110(a)(2)(D)(i)(I) interstate
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40 CFR Part 52 and will be publicly available only in and 2010 NO2 NAAQS (80 FR 30200).
hard copy form. Publicly available An explanation of the CAA
[EPA–R10–OAR–2015–0329; FRL–9930–69– requirements, a detailed analysis of the
docket materials are available either
Region 10]
electronically through submittal, and the EPA’s reasons for
Approval and Promulgation of www.regulations.gov or in hard copy at approval were provided in the notice of
Implementation Plans; Washington: the Air Programs Unit, Office of Air, proposed rulemaking, and will not be
Interstate Transport Requirements for Waste and Toxics, EPA Region 10, 1200 restated here. The public comment
the 2008 Lead and 2010 Nitrogen Sixth Avenue, Seattle, WA 98101. The period for this proposed rule ended on
Dioxide National Ambient Air Quality EPA requests that if at all possible, you June 26, 2015. The EPA received no
Standards contact the individual listed in the FOR comments on the proposal.
FURTHER INFORMATION CONTACT section to II. Final Action
AGENCY: Environmental Protection view the hard copy of the docket. You
Agency. may view the hard copy of the docket The EPA reviewed the May 11, 2015
ACTION: Final rule. Monday through Friday, 8:00 a.m. to submittal from Ecology demonstrating
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SUMMARY: The Environmental Protection significantly contribute to
FOR FURTHER INFORMATION CONTACT: For nonattainment or interfere with
Agency (EPA) is approving a submittal
information please contact Jeff Hunt at maintenance of the 2008 Pb and 2010
by the Washington Department of
(206) 553–0256, hunt.jeff@epa.gov, or by NO2 NAAQS in any other state. The
Ecology (Ecology) demonstrating that
using the above EPA, Region 10 address. EPA has determined that the
the State Implementation Plan (SIP)
meets certain interstate transport SUPPLEMENTARY INFORMATION: Washington SIP meets the CAA section
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Table of Contents
for the National Ambient Air Quality requirements for the 2008 Pb and 2010
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II. Final Action under section 110 of the CAA.
lead (Pb) on October 15, 2008 and III. Statutory and Executive Orders Review
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an emissions inventory analysis and On October 15, 2008 (73 FR 66964) Under the CAA, the Administrator is
reviewed monitoring data to show that and January 22, 2010 (75 FR 6474), the required to approve a SIP submission
sources in Washington do not EPA revised the Pb and NO2 NAAQS, that complies with the provisions of the
significantly contribute to respectively. Within three years after CAA and applicable Federal regulations.
nonattainment or interfere with promulgation of a new or revised 42 U.S.C. 7410(k); 40 CFR 52.02(a).
maintenance of the 2008 Pb and 2010 standard, states must submit SIPs Thus, in reviewing SIP submissions, the
NO2 NAAQS in any other state. meeting the requirements of CAA EPA’s role is to approve state choices,
DATES: This final rule is effective August sections 110(a)(1) and (2), often referred provided that they meet the criteria of
tkelley on DSK3SPTVN1PROD with RULES

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documents in the docket are listed on demonstrating that sources in those imposed by State law. For that
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Document Created: 2015-12-15 13:13:09
Document Modified: 2015-12-15 13:13:09

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Contact		Stephanie Li, Chief, Regulations Staff (211D), Compensation Service, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9700. (This is not a toll-free telephone number.)
FR Citation		80 FR 42040
RIN Number		2900-AP38
CFR Associated		Disability Benefits; Pensions and Veterans