82 FR 36080 - Schedule for Rating Disabilities; Dental and Oral Conditions
DEPARTMENT OF VETERANS AFFAIRS Federal Register Volume 82, Issue 148 (August 3, 2017)
Federal Register Volume 82, Issue 148 (August 3, 2017)
| Page Range | 36080-36086 | |
| FR Document | 2017-16132 |
[Federal Register Volume 82, Number 148 (Thursday, August 3, 2017)] [Rules and Regulations] [Pages 36080-36086] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-16132] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 4 RIN 2900-AP08 Schedule for Rating Disabilities; Dental and Oral Conditions AGENCY: Department of Veterans Affairs. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This document amends the Department of Veterans Affairs (VA) Schedule for Rating Disabilities by revising the portion of the schedule that addresses dental and oral conditions. The effect of this action is to ensure that the rating schedule uses current medical terminology and to provide detailed and updated criteria for evaluation of dental and oral conditions for disability rating purposes. DATES: This final rule is effective on September 10, 2017. FOR FURTHER INFORMATION CONTACT: Ioulia Vvedenskaya, M.D., M.B.A., Medical Officer, Part 4 VASRD Regulations Staff (211C), Compensation Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9700 (This is not a toll-free telephone number). SUPPLEMENTARY INFORMATION: VA published a proposed rulemaking in the Federal Register at 80 FR 44913 on July 28, 2015, to amend the portion of the VA Schedule of Rating Disabilities (VASRD or rating schedule) dealing with dental and oral conditions. VA provided a 60-day public comment period and interested persons were invited to submit written comments on or before September 28, 2015. VA received 5 comments. One commenter suggested further defining the description of mandibular and maxillary malunion and maxillary non-union based on the degree of open bite under diagnostic codes 9904 and 9916. However, the severity of mandibular and maxillary displacement and its effect on anterior or posterior open bite depend on an individual's functional anatomy. Therefore, different veterans with the same degree of displacement would present with different degrees of open bite. A qualified dental provider such as a dentist or oral surgeon would appropriately determine the degree of severity in each individual case. Further, rather than basing the severity of open bite on a range of numerical values, it is standard practice for such dental providers to assess the degree of severity as severe, moderate, mild, or not causing open bite. Additionally, the commenter suggested defining moderate and severe anterior or posterior open bite and mild anterior or posterior open bite. Similarly, due to the variances between individuals' facial anatomy, it would be improper to use exact numerical values to determine the degree of moderate and severe anterior or posterior open bite and mild anterior or posterior open bite. A qualified dental provider would appropriately measure and record these findings. Therefore, VA makes no changes based on these comments. The same commenter had a question about why only a 20 percent rating is warranted for severe anterior or posterior open bite due to mandibular malunion and a 30 percent rating is warranted for severe anterior or posterior open bite due to maxillary malunion, while moderate anterior or posterior open bite warrants 10 percent ratings for both conditions. These variations in disability compensation are based on the differences in functional impairment due to maxillary and mandibular fractures. Unlike mandibular fracture and its residuals, maxillary fracture presents a more challenging case for repair and rehabilitation. For example, unlike mandibular fractures, maxillary fractures often communicate with sinuses and/or combine with orbital fractures. Such fractures are predisposed to contamination, sinus infection, and obstruction. Even after following treatment guidelines, significant bony resorption may occur leading to cosmetic contour deformity. Further, although such residuals of maxillary fracture raise the potential for pyramiding, such a situation is addressed by the new note (2) to Sec. 4.150, which directs raters to separately evaluate other impairments under the appropriate diagnostic code. Therefore, the functional impairment due to maxillary fracture significantly differs from mandibular fractures. VA took these functional anatomy differences and the resultant differences in functional impairment into consideration during the revision process. Additionally, the commenter noted that mandibular malunion and maxillary malunion and non-union do not have the same choices of severity of anterior or posterior open bite. Once more, these differences are based on differences in the functional anatomy of maxillas and mandibles and standard clinical assessments by a qualified dental provider. Therefore, VA makes no changes based on these comments. Multiple commenters asked for additional guidance in assessing interincisal measurements of maximum unassisted vertical opening under diagnostic code 9905. One commenter stated that guidance was needed on how to handle measurements that fall between the specific numbers. Another commenter suggested adding the phrase ``or less'' to the whole numbers listed in the proposed rule or using a range of numbers, such as from 21 to 29 millimeters. VA applied a standard scale for the measurement of interincisal ranges, vertical and lateral, based on the Guidelines to the Evaluation of [[Page 36081]] Impairment of the Oral and Maxillofacial Region by the American Association of Oral and Maxillofacial Surgeons. Guidelines to the Evaluation of Impairment of the Oral and Maxillofacial Region, American Association of Oral and Maxillofacial Surgeons can be found at http://www.astmjs.org/impairment.html. VA agrees that for the sake of clarity, a full range of maximum unassisted vertical opening should be included and makes appropriate edits to diagnostic code 9905. One commenter stated that VA should address bruxism and its relationship to temporomandibular joint disorder in a note to diagnostic code 9905. Specifically, the commenter stated that VA's treatment of bruxism as only a secondary condition and not a stand alone disability is problematic with regards to claims for dental treatment. The commenter recommended amending 38 CFR 3.381 to clarify the treatment of bruxism in regards to service connection for dental treatment or to add to diagnostic code 9905 the phrase ``with or without bruxism.'' The commenter also recommended rating bruxism as a stand alone issue. However, bruxism is considered a symptom of craniomandibular disorders, of which temporomandibular disorders are a subset; other symptoms of craniomandibular disorders include anxiety, stress, and other mental disorders (Shetty, Shilpa et al., Bruxism: A Literature Review, J Indian Prosthodont Soc. 2010 Sep; 10(3): 141-148., https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3081266/). Therefore, it is not appropriate to place bruxism as a separate diagnosis or a symptom under diagnostic code 9905. VA has determined that only secondary service connection for treatment purposes is warranted for this condition, both because it is only a secondary condition, not a primary condition, and because its symptoms are already contemplated by the underlying condition for which the veteran is being compensated. Thus, it does not require a separate diagnostic code, and VA makes no changes based on this comment. One commenter had a question about why diagnostic codes 9901, 9908, 9909, 9913, 9914, and 9915 were missing from the discussion. VA did not propose any changes to these diagnostic codes. According to the Federal Register Document Drafting Handbook Rule 1.14, this was noted by inserting asterisks in place of unchanged diagnostic codes. Therefore, VA makes no changes based on this comment. The same commenter proposed to rate maxillary and mandibular malunion and non-union exactly the same way, regardless of which bone is affected. However, the functional impairment due to mandibular malunion and non-union significantly differs from maxillary malunion and non-union. VA took these differences in functional anatomy and the resultant differences in functional impairment into consideration during the revision process. Therefore, VA makes no changes based on this comment. One commenter was supportive of the overall changes and additions to this section of the rating schedule. However, the commenter stated that a service-connected noncompensable rating for a dental disability inappropriately restricts the ability of a recently discharged veteran whose eligibility for outpatient dental services is based on 38 CFR 17.161(b) [Class II] to receive appropriate dental services and appliances. To illustrate, the commenter stated that the dental rating schedule provides for a diagnosis of ``loss of teeth, replaceable by prosthesis'' with diagnostic code 9913. Because the schedule considers this to be a noncompenable disability, the veteran is limited to receiving one-time treatment for this condition under 38 CFR 17.161(b). The commenter described why this is not a suitable clinical response for the veteran, especially over the veteran's life-time. Specifically, the commenter stated that the provision of dentures has historically been, and continues to be, VA's treatment response for this condition, even though (1) modern dentistry, as practiced in the community, goes beyond this, offering partial dentures, implants, bridges, crowns, and other prostheses, and (2) the use of dentures may be inappropriate and more harmful to the future dental health of the veteran (e.g., where their use, to address a lost tooth, requires the removal of other healthy teeth to fit them). Moreover, this commenter stated that limiting this veteran to one-time treatment for this condition is outdated and a disservice to the veteran, further noting that, even were these newer treatment options available to this cohort, the one- time limitation would still be unreasonable because these newer options typically require replacement after several years. The commenter believes all of these problems would be remedied by either ensuring that this dental condition (diagnostic code 9913) is changed to reflect a compensable rating for veterans who experience complications of treatment, such as inability to load the prosthesis, diminished vocal projection, chronic pain, or peri-implantitis. In the alternative, this particular dental condition/diagnosis could be excepted from the one- time treatment limitation under Sec. 17.161(b). Lastly, this commenter suggested adding a general note under 38 CFR 4.150 to allow for analogous compensable ratings for any dental disabilities service- connected (or treated as service-connected under 38 U.S.C. 1151) which require ongoing treatment. Veterans with a service-connected compensable dental condition are eligible for any outpatient dental treatment indicated as reasonably necessary to maintain oral health and masticatory function, with no time limits for making application for treatment and no restrictions as to the number of repeat episodes of treatment under 38 CFR 17.161(a). In addition, other veteran-cohorts are eligible for outpatient dental treatment as specified in Sec. 17.161. Under Sec. 17.161(b) [Class II], a veteran's eligibility for the one-time correction of a service- connected noncompensable dental condition is available to certain veterans who have been recently discharged or released from active service, if specified requirements, including timely filing of the dental application, are met. (No rating action is needed for Class II applicants if the conditions set forth in 38 CFR 17.162 are met). While we appreciate the arguments raised by the commenter and his advocacy efforts on behalf of the members of his organization, this rulemaking does not seek to revise diagnostic code 9913, as it applies to the loss of teeth, replaceable by prosthesis. As such, these comments go beyond the scope of this rulemaking, which is focused on other codes in the dental rating schedule. Further, a veteran's Class II eligibility for outpatient dental services and applicances is not based on the level of functional impairment for which the Veteran is compensated under 38 CFR part 4. Ratings provided for service-connected conditions under 38 CFR part 4 serve solely to compensate veterans for functional impairment resulting from diseases and injuries and any residuals. In addition, VA has determined that the dental conditions contemplated by Sec. 17.161(b) do not, in general, result in functional impairment. Indeed, VA experts recently carefully considered this very issue as part of an independent undertaking, but they concluded that while such a change would serve a great convenience to affected veterans, no clinical justification exists to change the non- compensable designation given to conditions under diagnostic code 9913, to include loss of teeth, replaceable by [[Page 36082]] prosthesis. Moreover, the commenter's broader suggested amendments to VA's outpatient treatment dental regulations likewise go beyond the scope of this immediate rulemaking, which again is focused on limited components of the dental rating schedule. Finally, we note that the eligibility criteria set forth in Sec. 17.161(b) are based in law, 38 U.S.C. 1712(a)(1)(B), (b), and so cannot be changed via rulemaking. As a result of all these factors, no changes to VA's outpatient dental regulations are made in response to this commenter's comments related to diagnostic code 9913. The same commenter was supportive of the overall changes and additions to diagnostic codes 9904 and 9916. However, the commenter was concerned about inter-examiner and inter-rater reliability due to the descriptors of open bite, noting that vague descriptors could result in under-evaluation or pyramiding. As discussed above, due to the variances between individuals' facial anatomy, it would be improper to use exact numerical values to determine the degree of moderate and severe anterior or posterior open bite and mild anterior or posterior open bite. Further, the potential for pyramiding is addressed by the new note (2) to Sec. 4.150, which directs raters to separately evaluate other impairments under the appropriate diagnostic code. Additionally, VA took differences in functional anatomy of maxillas and mandibles into consideration during the revision process. Therefore, VA makes no changes based on this comment. One commenter urged VA to include periodontal disease as a compensable condition and amend 38 CFR 3.381 accordingly. The commenter stated that periodontal disease has been linked to diabetes as well as other conditions, and veterans who have service-connected diabetes as a result of herbicide exposure are not able to receive dental treatment unless their overall disability rating is 100 percent. The commenter stated that assigning a compensable disability rating for periodontal disease or providing for a compensable rating as a secondary disability associated with service-connected diabetes would alleviate the lack of treatment issue for veterans. As noted previously, the ratings under 38 CFR part 4 serve to compensate for functional impairment. VA has determined that periodontal disease does not result in loss of earning capacity resulting from functional impairment, so no changes have been made to make this condition compensable. Therefore, VA makes no changes based on these comments. VA is correcting typographical errors under DC 9905 and DC 9916. With respect to DC 9905, in the proposed rulemaking notice, for the 50 percent evaluation, VA referred to mechanically altered food instead of mechanically altered foods. With respect to DC 9916, in the explanatory note for disability rating personnel, VA failed to include the phrase ``following treatment'' between ``maxilla fragments'' and the parenthetical. VA is correcting these errors in this final rule. VA appreciates the comments submitted in response to the proposed rulemaking notice. Based on the rationale stated in the proposed rulemaking notice and in this document, the final rule is adopted with the changes noted. Effective Date of Final Rule Veterans Benefits Administration (VBA) personnel utilize the Veterans Benefit Management System for Rating (VBMS-R) to process disability compensation claims that involve disability evaluations made under the VASRD. In order to ensure that there is no delay in processing veterans' claims, VA must coordinate the effective date of this final rule with corresponding VBMS-R system updates. As such, this final rule will apply effective September 10, 2017, the date VBMS-R system updates related to this final rule will be complete. 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 final rule 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 not affect any small entities. Only certain VA beneficiaries could be directly affected. 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 64.009, Veterans Medical Care Benefits; [[Page 36083]] 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service Connected Death. 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. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on July 21, 2017, for publication. Dated: July 27, 2017. Michael Shores, Director, Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. List of Subjects in 38 CFR Part 4 Disability benefits, Pensions, Veterans. For the reasons set out in the preamble, VA amends 38 CFR part 4 as follows: 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. Amend Sec. 4.150 by: 0 a. Adding Notes 1 and 2 at the beginning of the table; 0 b. Revising the entries for diagnostic codes 9900 and 9902 through 9905; 0 c. Removing the entries for diagnostic codes 9906 and 9907; 0 d. Revising the entry for diagnostic code 9911; 0 e. Removing entry for diagnostic code 9912; 0 f. Revising the entry for diagnostic code 9916; and 0 g. Adding, in numerical order, entries for diagnostic codes 9917 and 9918. The revisions and additions read as follows: Sec. 4.150 Schedule of ratings--dental and oral conditions. ------------------------------------------------------------------------ Rating ------------------------------------------------------------------------ Note (1): For VA compensation purposes, diagnostic imaging studies include, but are not limited to, conventional radiography (X-ray), computed tomography (CT), magnetic resonance imaging (MRI), positron emission tomography (PET), radionuclide bone scanning, or ultrasonography..................................... Note (2): Separately evaluate loss of vocal articulation, loss of smell, loss of taste, neurological impairment, respiratory dysfunction, and other impairments under the appropriate diagnostic code and combine under Sec. 4.25 for each separately rated condition.............................................. 9900 Maxilla or mandible, chronic osteomyelitis, osteonecrosis or osteoradionecrosis of: Rate as osteomyelitis, chronic under diagnostic code 5000. * * * * * * * 9902 Mandible, loss of, including ramus, unilaterally or bilaterally: Loss of one-half or more, Involving temporomandibular articulation........ Not replaceable by prosthesis............... 70 Replaceable by prosthesis................... 50 Not involving temporomandibular articulation. Not replaceable by prosthesis............... 40 Replaceable by prosthesis................... 30 Loss of less than one-half, Involving temporomandibular articulation. Not replaceable by prosthesis............... 70 Replaceable by prosthesis................... 50 Not involving temporomandibular articulation. Not replaceable by prosthesis............... 20 Replaceable by prosthesis................... 10 9903 Mandible, nonunion of, confirmed by diagnostic imaging studies: Severe, with false motion........................... 30 Moderate, without false motion...................... 10 9904 Mandible, malunion of: Displacement, causing severe anterior or posterior 20 open bite.......................................... Displacement, causing moderate anterior or posterior 10 open bite.......................................... Displacement, not causing anterior or posterior open 0 bite............................................... 9905 Temporomandibular disorder (TMD): Interincisal range: 0 to 10 millimeters (mm) of maximum unassisted vertical opening. With dietary restrictions to all 50 mechanically altered foods................. Without dietary restrictions to mechanically 40 altered foods.............................. 11 to 20 mm of maximum unassisted vertical opening. With dietary restrictions to all 40 mechanically altered foods................. Without dietary restrictions to mechanically 30 altered foods.............................. 21 to 29 mm of maximum unassisted vertical opening. With dietary restrictions to full liquid and 40 pureed foods............................... With dietary restrictions to soft and semi- 30 solid foods................................ Without dietary restrictions to mechanically 20 altered foods.............................. 30 to 34 mm of maximum unassisted vertical opening. With dietary restrictions to full liquid and 30 pureed foods............................... With dietary restrictions to soft and semi- 20 solid foods................................ Without dietary restrictions to mechanically 10 altered foods.............................. [[Page 36084]] Lateral excursion range of motion: 0 to 4 mm................................... 10 Note (1): Ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion.............................................. Note (2): For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm....................................... Note (3): For VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician................. * * * * * * * 9911 Hard palate, loss of: Loss of half or more, not replaceable by 30 prosthesis................................. Loss of less than half, not replaceable by 20 prosthesis................................. Loss of half or more, replaceable by 10 prosthesis................................. Loss of less than half, replaceable by 0 prosthesis................................. * * * * * * * 9916 Maxilla, malunion or nonunion of: Nonunion, With false motion............................... 30 Without false motion............................ 10 Malunion, With displacement, causing severe anterior or 30 posterior open bite............................ With displacement, causing moderate anterior or 10 posterior open bite............................ With displacement, causing mild anterior or 0 posterior open bite............................ Note: For VA compensation purposes, the severity of maxillary nonunion is dependent upon the degree of abnormal mobility of maxilla fragments following treatment (i.e., presence or absence of false motion), and maxillary nonunion must be confirmed by diagnostic imaging studies........................................ 9917 Neoplasm, hard and soft tissue, benign: Rate as loss of supporting structures (bone or teeth) and/or functional impairment due to scarring. 9918 Neoplasm, hard and soft tissue, malignant.......... 100 Note: A rating of 100 percent shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of Sec. 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals such as loss of supporting structures (bone or teeth) and/or functional impairment due to scarring. ------------------------------------------------------------------------ 0 3. Amend appendix A to part 4 by: 0 a. Revising the entries for diagnostic codes 9900, 9902, and 9903; 0 b. Adding, in numerical order, an entry for diagnostic code 9904; 0 c. Revising the entry for diagnostic code 9905; 0 d. Adding, in numerical order, entries for diagnostic codes 9906, 9907, 9911, and 9912; 0 e. Revising the entry for diagnostic code 9916; and 0 f. Adding, in numerical order, entries for diagnostic codes 9917 and 9918. The revisions and additions read as follows: Appendix A to Part 4--Table of Amendments and Effective Dates Since 1946 ------------------------------------------------------------------------ Diagnostic Sec. Code No. ------------------------------------------------------------------------ * * * * * * * 9900 Criterion September 22, 1978; criterion February 17, 1994; title September 10, 2017. * * * * * * * 9902 Criterion February 17, 1994; evaluation September 10, 2017; title September 10, 2017. 9903 Criterion February 17, 1994; evaluation September 10, 2017; title September 10, 2017. 9904 Criterion September 10, 2017. 9905 Criterion September 22, 1978; evaluation February 17, 1994; evaluation September 10, 2017; title September 10, 2017. 9906 Removed September 10, 2017. 9907 Removed September 10, 2017. * * * * * * * 9911 Criterion and title September 10, 2017. 9912 Removed September 10, 2017. * * * * * * * 9916 Added February 17, 1994; criterion September 10, 2017. 9917 Added September 10, 2017. 9918 Added September 10, 2017. ------------------------------------------------------------------------ [[Page 36085]] 0 4. Amend appendix B to part 4 by: 0 a. Revising the entries for diagnostic codes 9900, 9902, 9903, and 9905; 0 b. Removing the entries for diagnostic codes 9906 and 9907; 0 c. Revising the entry for diagnostic code 9911; 0 d. Removing the entry for diagnostic code 9912; and 0 e. Adding, in numerical order, entries for diagnostic codes 9917 and 9918. The revisions and additions read as follows: Appendix B to Part 4--Numerical Index of Disabilities ------------------------------------------------------------------------ Diagnostic Code No. ------------------------------------------------------------------------ * * * * * * * ------------------------------------------------------------------------ Dental and Oral Conditions ------------------------------------------------------------------------ 9900......................... Maxilla or mandible, chronic osteomyelitis, osteonecrosis, or osteoradionecrosis of. * * * * * * * 9902......................... Mandible loss of, including ramus, unilaterally or bilaterally. 9903......................... Mandible, nonunion of, confirmed by diagnostic imaging studies. * * * * * * * 9905......................... Temporomandibular disorder (TMD). * * * * * * * 9911......................... Hard palate, loss of. * * * * * * * 9917......................... Neoplasm, hard and soft tissue, benign. 9918......................... Neoplasm, hard and soft tissue, malignant. ------------------------------------------------------------------------ 0 5. Amend appendix C to part 4 as follows: 0 a. Under the entry for ``Limitation of motion,'' remove the entry for ``Temporomandibular articulation'' and add in its place an entry for ``Temporomandibular''; 0 b. Under the entry for ``Loss of,'' add in alphabetical order an entry for ``Palate, hard''; 0 c. Revise the entry for ``Mandible''; 0 d. Add in alphabetical order an entry for ``Maxilla or mandible, chronic osteomyelitis, osteonecrosis, or osteoradionecrosis of''; 0 e. Remove the entries for ``Palate, hard'' and ``Ramus'' located below the entry for ``Nose, part of, or scars'' and above the entry for ``Skull, part of''; 0 f. Under the entry for ``Neoplasms,'' under both ``Benign'' and ``Malignant,'' add in alphabetical order an entry for ``Hard and soft tissue''; 0 g. Under the entry for ``Nonunion,'' remove the entry for ``Mandible'' and add in its place an entry for ``Mandible, confirmed by diagnostic imaging studies''; 0 h. Remove the entry for ``Osteomyelitis maxilla or mandible''. The additions and revisions read as follows: Appendix C to Part 4--Alphabetical Index of Disabilities ------------------------------------------------------------------------ Diagnostic Code No. ------------------------------------------------------------------------ * * * * * * * Limitation of motion: * * * * * * * Temporomandibular................................... 9905 * * * * * * * Loss of: * * * * * * * Palate, hard........................................ 9911 * * * *................................................. Mandible: Including ramus, unilaterally or bilaterally........ 9902 * * * * * * * Maxilla or mandible, chronic osteomyelitis, 9900 osteonecrosis, or osteoradionecrosis of............ * * * * * * * Neoplasms: Benign: * * * * * * * Hard and soft tissue............................ 9917 [[Page 36086]] * * * * * * * Malignant: * * * * * * * Hard and soft tissue............................ 9918 * * * * * * * Nonunion: Mandible, confirmed by diagnostic imaging studies... 9903 * * * * * * * ------------------------------------------------------------------------ [FR Doc. 2017-16132 Filed 8-2-17; 8:45 am] BILLING CODE 8320-01-P
![36080 Federal Register / Vol. 82, No. 148 / Thursday, August 3, 2017 / Rules and Regulations
Paragraph 5000 Class D Airspace. addresses dental and oral conditions. The same commenter had a question
* * * * * The effect of this action is to ensure that about why only a 20 percent rating is
the rating schedule uses current medical warranted for severe anterior or
AGL WI D Mosinee, WI [Amended]
terminology and to provide detailed and posterior open bite due to mandibular
Central Wisconsin Airport, WI updated criteria for evaluation of dental malunion and a 30 percent rating is
(Lat. 44°46′39″ N., long. 89°40′00″ W.) and oral conditions for disability rating warranted for severe anterior or
That airspace extending upward from the purposes. posterior open bite due to maxillary
surface to and including 3,800 feet MSL malunion, while moderate anterior or
within a 4.5-mile radius of Central Wisconsin DATES: This final rule is effective on
Airport. This Class D airspace area is September 10, 2017. posterior open bite warrants 10 percent
effective during the specific dates and times FOR FURTHER INFORMATION CONTACT: ratings for both conditions. These
established in advance by Notice to Airmen. Ioulia Vvedenskaya, M.D., M.B.A., variations in disability compensation
The effective date and time will thereafter be Medical Officer, Part 4 VASRD are based on the differences in
continuously published in the Chart Regulations Staff (211C), Compensation functional impairment due to maxillary
Supplement. Service, Veterans Benefits and mandibular fractures. Unlike
Paragraph 6002 Class E Airspace Administration, Department of Veterans mandibular fracture and its residuals,
Designated as Surface Areas. Affairs, 810 Vermont Avenue NW., maxillary fracture presents a more
* * * * * Washington, DC 20420, (202) 461–9700 challenging case for repair and
(This is not a toll-free telephone rehabilitation. For example, unlike
AGL WI E2 Mosinee, WI [Amended] mandibular fractures, maxillary
number).
Central Wisconsin Airport, WI fractures often communicate with
(Lat. 44°46′39″ N., long. 89°40′00″ W.) SUPPLEMENTARY INFORMATION: VA
sinuses and/or combine with orbital
That airspace extending upward from the
published a proposed rulemaking in the fractures. Such fractures are
surface within a 4.5-mile radius of Central Federal Register at 80 FR 44913 on July predisposed to contamination, sinus
Wisconsin Airport. This Class E airspace area 28, 2015, to amend the portion of the infection, and obstruction. Even after
is effective during the specific dates and VA Schedule of Rating Disabilities following treatment guidelines,
times established in advance by Notice to (VASRD or rating schedule) dealing significant bony resorption may occur
Airmen. The effective date and time will with dental and oral conditions. VA
thereafter be continuously published in the
leading to cosmetic contour deformity.
provided a 60-day public comment Further, although such residuals of
Chart Supplement. period and interested persons were maxillary fracture raise the potential for
Paragraph 6005 Class E Airspace Areas invited to submit written comments on pyramiding, such a situation is
Extending Upward From 700 Feet or More or before September 28, 2015. VA addressed by the new note (2) to § 4.150,
Above the Surface of the Earth. received 5 comments. which directs raters to separately
* * * * * One commenter suggested further evaluate other impairments under the
defining the description of mandibular appropriate diagnostic code. Therefore,
AGL WI E5 Mosinee, WI [Amended]
and maxillary malunion and maxillary the functional impairment due to
Central Wisconsin Airport, WI non-union based on the degree of open
(Lat. 44°46′39″ N., long. 89°40′00″ W.) maxillary fracture significantly differs
bite under diagnostic codes 9904 and from mandibular fractures. VA took
Wausau VORTAC
(Lat. 44°50′48″ N., long. 89°35′12″ W.)
9916. However, the severity of these functional anatomy differences
mandibular and maxillary displacement and the resultant differences in
That airspace extending upward from 700
feet above the surface within a 7-mile radius
and its effect on anterior or posterior functional impairment into
of the Central Wisconsin Airport, and within open bite depend on an individual’s consideration during the revision
3.3 miles each side of the 350° bearing from functional anatomy. Therefore, different process.
the airport extending from the 7-mile radius veterans with the same degree of Additionally, the commenter noted
to 12.3 miles north of the airport. displacement would present with that mandibular malunion and
Issued in Fort Worth, Texas on July 27, different degrees of open bite. A maxillary malunion and non-union do
2017. qualified dental provider such as a not have the same choices of severity of
Walter Tweedy, dentist or oral surgeon would anterior or posterior open bite. Once
Acting Manager, Operations Support Group,
appropriately determine the degree of more, these differences are based on
ATO Central Service Center. severity in each individual case. differences in the functional anatomy of
[FR Doc. 2017–16284 Filed 8–2–17; 8:45 am]
Further, rather than basing the severity maxillas and mandibles and standard
of open bite on a range of numerical clinical assessments by a qualified
BILLING CODE 4910–13–P
values, it is standard practice for such dental provider. Therefore, VA makes
dental providers to assess the degree of no changes based on these comments.
severity as severe, moderate, mild, or Multiple commenters asked for
DEPARTMENT OF VETERANS not causing open bite. additional guidance in assessing
AFFAIRS Additionally, the commenter interincisal measurements of maximum
suggested defining moderate and severe unassisted vertical opening under
38 CFR Part 4
anterior or posterior open bite and mild diagnostic code 9905. One commenter
RIN 2900–AP08 anterior or posterior open bite. stated that guidance was needed on how
Similarly, due to the variances between to handle measurements that fall
Schedule for Rating Disabilities; Dental individuals’ facial anatomy, it would be between the specific numbers. Another
and Oral Conditions improper to use exact numerical values commenter suggested adding the phrase
pmangrum on DSK3GDR082PROD with RULES
AGENCY: Department of Veterans Affairs. to determine the degree of moderate and ‘‘or less’’ to the whole numbers listed in
ACTION: Final rule. severe anterior or posterior open bite the proposed rule or using a range of
and mild anterior or posterior open bite. numbers, such as from 21 to 29
SUMMARY: This document amends the A qualified dental provider would millimeters. VA applied a standard
Department of Veterans Affairs (VA) appropriately measure and record these scale for the measurement of interincisal
Schedule for Rating Disabilities by findings. Therefore, VA makes no ranges, vertical and lateral, based on the
revising the portion of the schedule that changes based on these comments. Guidelines to the Evaluation of
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![Federal Register / Vol. 82, No. 148 / Thursday, August 3, 2017 / Rules and Regulations 36081
Impairment of the Oral and and non-union exactly the same way, alternative, this particular dental
Maxillofacial Region by the American regardless of which bone is affected. condition/diagnosis could be excepted
Association of Oral and Maxillofacial However, the functional impairment from the one-time treatment limitation
Surgeons. Guidelines to the Evaluation due to mandibular malunion and non- under § 17.161(b). Lastly, this
of Impairment of the Oral and union significantly differs from commenter suggested adding a general
Maxillofacial Region, American maxillary malunion and non-union. VA note under 38 CFR 4.150 to allow for
Association of Oral and Maxillofacial took these differences in functional analogous compensable ratings for any
Surgeons can be found at http:// anatomy and the resultant differences in dental disabilities service-connected (or
www.astmjs.org/impairment.html. VA functional impairment into treated as service-connected under 38
agrees that for the sake of clarity, a full consideration during the revision U.S.C. 1151) which require ongoing
range of maximum unassisted vertical process. Therefore, VA makes no treatment.
opening should be included and makes changes based on this comment. Veterans with a service-connected
appropriate edits to diagnostic code One commenter was supportive of the compensable dental condition are
9905. overall changes and additions to this eligible for any outpatient dental
One commenter stated that VA should section of the rating schedule. However, treatment indicated as reasonably
address bruxism and its relationship to the commenter stated that a service- necessary to maintain oral health and
temporomandibular joint disorder in a connected noncompensable rating for a masticatory function, with no time
note to diagnostic code 9905. dental disability inappropriately limits for making application for
Specifically, the commenter stated that treatment and no restrictions as to the
restricts the ability of a recently
VA’s treatment of bruxism as only a number of repeat episodes of treatment
discharged veteran whose eligibility for
secondary condition and not a stand under 38 CFR 17.161(a). In addition,
outpatient dental services is based on 38
alone disability is problematic with other veteran-cohorts are eligible for
CFR 17.161(b) [Class II] to receive
regards to claims for dental treatment. outpatient dental treatment as specified
appropriate dental services and
The commenter recommended in § 17.161. Under § 17.161(b) [Class II],
appliances. To illustrate, the commenter
amending 38 CFR 3.381 to clarify the a veteran’s eligibility for the one-time
stated that the dental rating schedule
treatment of bruxism in regards to correction of a service-connected
provides for a diagnosis of ‘‘loss of
service connection for dental treatment noncompensable dental condition is
teeth, replaceable by prosthesis’’ with
or to add to diagnostic code 9905 the available to certain veterans who have
diagnostic code 9913. Because the been recently discharged or released
phrase ‘‘with or without bruxism.’’ The
commenter also recommended rating schedule considers this to be a from active service, if specified
bruxism as a stand alone issue. noncompenable disability, the veteran is requirements, including timely filing of
However, bruxism is considered a limited to receiving one-time treatment the dental application, are met. (No
symptom of craniomandibular for this condition under 38 CFR rating action is needed for Class II
disorders, of which temporomandibular 17.161(b). The commenter described applicants if the conditions set forth in
disorders are a subset; other symptoms why this is not a suitable clinical 38 CFR 17.162 are met).
of craniomandibular disorders include response for the veteran, especially over While we appreciate the arguments
anxiety, stress, and other mental the veteran’s life-time. Specifically, the raised by the commenter and his
disorders (Shetty, Shilpa et al., Bruxism: commenter stated that the provision of advocacy efforts on behalf of the
A Literature Review, J Indian dentures has historically been, and members of his organization, this
Prosthodont Soc. 2010 Sep; 10(3): 141– continues to be, VA’s treatment rulemaking does not seek to revise
148., https://www.ncbi.nlm.nih.gov/ response for this condition, even though diagnostic code 9913, as it applies to the
pmc/articles/PMC3081266/). Therefore, (1) modern dentistry, as practiced in the loss of teeth, replaceable by prosthesis.
it is not appropriate to place bruxism as community, goes beyond this, offering As such, these comments go beyond the
a separate diagnosis or a symptom partial dentures, implants, bridges, scope of this rulemaking, which is
under diagnostic code 9905. VA has crowns, and other prostheses, and (2) focused on other codes in the dental
determined that only secondary service the use of dentures may be rating schedule. Further, a veteran’s
connection for treatment purposes is inappropriate and more harmful to the Class II eligibility for outpatient dental
warranted for this condition, both future dental health of the veteran (e.g., services and applicances is not based on
because it is only a secondary condition, where their use, to address a lost tooth, the level of functional impairment for
not a primary condition, and because its requires the removal of other healthy which the Veteran is compensated
symptoms are already contemplated by teeth to fit them). Moreover, this under 38 CFR part 4. Ratings provided
the underlying condition for which the commenter stated that limiting this for service-connected conditions under
veteran is being compensated. Thus, it veteran to one-time treatment for this 38 CFR part 4 serve solely to
does not require a separate diagnostic condition is outdated and a disservice to compensate veterans for functional
code, and VA makes no changes based the veteran, further noting that, even impairment resulting from diseases and
on this comment. were these newer treatment options injuries and any residuals. In addition,
One commenter had a question about available to this cohort, the one-time VA has determined that the dental
why diagnostic codes 9901, 9908, 9909, limitation would still be unreasonable conditions contemplated by § 17.161(b)
9913, 9914, and 9915 were missing from because these newer options typically do not, in general, result in functional
the discussion. VA did not propose any require replacement after several years. impairment. Indeed, VA experts
changes to these diagnostic codes. The commenter believes all of these recently carefully considered this very
According to the Federal Register problems would be remedied by either issue as part of an independent
pmangrum on DSK3GDR082PROD with RULES
Document Drafting Handbook Rule 1.14, ensuring that this dental condition undertaking, but they concluded that
this was noted by inserting asterisks in (diagnostic code 9913) is changed to while such a change would serve a great
place of unchanged diagnostic codes. reflect a compensable rating for veterans convenience to affected veterans, no
Therefore, VA makes no changes based who experience complications of clinical justification exists to change the
on this comment. treatment, such as inability to load the non-compensable designation given to
The same commenter proposed to rate prosthesis, diminished vocal projection, conditions under diagnostic code 9913,
maxillary and mandibular malunion chronic pain, or peri-implantitis. In the to include loss of teeth, replaceable by
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![36086 Federal Register / Vol. 82, No. 148 / Thursday, August 3, 2017 / Rules and Regulations
Diagnostic
Code No.
* * * * * * *
Malignant:
* * * * * * *
Hard and soft tissue .............................................................................................................................................................. 9918
* * * * * * *
Nonunion:
Mandible, confirmed by diagnostic imaging studies ..................................................................................................................... 9903
* * * * * * *
[FR Doc. 2017–16132 Filed 8–2–17; 8:45 am] FOR FURTHER INFORMATION CONTACT: OPP–2015–0676 in the subject line on
BILLING CODE 8320–01–P Mike Goodis, Registration Division the first page of your submission. All
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Environmental Protection Agency, 1200 must be in writing, and must be
ENVIRONMENTAL PROTECTION Pennsylvania Ave. NW., Washington, received by the Hearing Clerk on or
AGENCY DC 20460–0001; main telephone before October 2, 2017. Addresses for
number: (703) 305–7090; email address: mail and hand delivery of objections
40 CFR Part 180 RDFRNotices@epa.gov. and hearing requests are provided in 40
SUPPLEMENTARY INFORMATION: CFR 178.25(b).
[EPA–HQ–OPP–2015–0676; FRL–9961–69]
In addition to filing an objection or
I. General Information hearing request with the Hearing Clerk
Ethaboxam; Pesticide Tolerances
A. Does this action apply to me? as described in 40 CFR part 178, please
AGENCY: Environmental Protection submit a copy of the filing (excluding
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ACTION: Final rule.
this action if you are an agricultural (CBI)) for inclusion in the public docket.
producer, food manufacturer, or Information not marked confidential
SUMMARY: This regulation establishes pesticide manufacturer. The following pursuant to 40 CFR part 2 may be
tolerances for residues of ethaboxam in list of North American Industrial disclosed publicly by EPA without prior
or on Ginseng; Pepper/eggplant, Classification System (NAICS) codes is notice. Submit the non-CBI copy of your
subgroup 8–10B; Vegetable, cucurbit, not intended to be exhaustive, but rather objection or hearing request, identified
group 9; and Vegetable, tuberous and provides a guide to help readers by docket ID number EPA–HQ–OPP–
corm, subgroup 1C. Valent USA determine whether this document 2015–0676, by one of the following
Corporation requested these tolerances applies to them. Potentially affected methods:
under the Federal Food, Drug, and entities may include: • Federal eRulemaking Portal: http://
Cosmetic Act (FFDCA). • Crop production (NAICS code 111). www.regulations.gov. Follow the online
DATES: This regulation is effective • Animal production (NAICS code instructions for submitting comments.
August 3, 2017. Objections and requests 112). Do not submit electronically any
for hearings must be received on or • Food manufacturing (NAICS code information you consider to be CBI or
before October 2, 2017, and must be 311). other information whose disclosure is
filed in accordance with the instructions • Pesticide manufacturing (NAICS restricted by statute.
provided in 40 CFR part 178 (see also code 32532). • Mail: OPP Docket, Environmental
Unit I.C. of the SUPPLEMENTARY B. How can I get electronic access to Protection Agency Docket Center (EPA/
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ADDRESSES: The docket for this action, You may access a frequently updated • Hand Delivery: To make special
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or at the Office of Pesticide Programs site at http://www.ecfr.gov/cgi-bin/text- www.epa.gov/dockets/contacts.html.
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Constitution Ave. NW., Washington, DC dockets.
20460–0001. The Public Reading Room Under FFDCA section 408(g), 21
is open from 8:30 a.m. to 4:30 p.m., U.S.C. 346a, any person may file an II. Summary of Petitioned-For
Monday through Friday, excluding legal objection to any aspect of this regulation Tolerance
pmangrum on DSK3GDR082PROD with RULES
holidays. The telephone number for the and may also request a hearing on those In the Federal Register of April 25,
Public Reading Room is (202) 566–1744, objections. You must file your objection 2016 (81 FR 24044) (FRL–9944–86),
and the telephone number for the OPP or request a hearing on this regulation EPA issued a document pursuant to
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information about the docket available proper receipt by EPA, you must pesticide petition (PP 5F8383) by Valent
at http://www.epa.gov/dockets. identify docket ID number EPA–HQ– USA Corporation, 1600 Riviera Avenue,
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Document Created: 2017-08-03 07:25:05
Document Modified: 2017-08-03 07:25:05
| 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. | |
| Dates | This final rule is effective on September 10, 2017. | |
| Contact | Ioulia Vvedenskaya, M.D., M.B.A., Medical Officer, Part 4 VASRD Regulations Staff (211C), Compensation Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9700 (This is not a toll-free telephone number). | |
| FR Citation | 82 FR 36080 | |
| RIN Number | 2900-AP08 | |
| CFR Associated | Disability Benefits; Pensions and Veterans |
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