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Federal Register / Vol. 86, No. 187 / Thursday, September 30, 2021 / Rules and Regulations
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Program NVLSP, and four individuals.
VA has made limited changes based on these comments, as discussed below.
Section-by-Section Discussion of Part 4
of Title 38 of the CFR
General Discussion:
One commenter requested clarification for the meaning of month and asked that the number of days that a month represents be provided. VA
clarifies that the term month is used to describe the procession from one month to the next on the Gregorian calendar. It does not denote a specific number of days since the number of days in a month vary throughout the year. However, for the purpose of understanding how long a temporary evaluation will be effective based on months, VA clarifies that temporary evaluations remain effective until the last day of the month in which the temporary evaluation ends. As an example, under Diagnostic Code 7000, VA will assign a 100-percent evaluation during active infection with valvular heart disease and for three months following the cessation of treatment for the active infection. If treatment ceased on January 5, 2020, the temporary evaluation would end after three months on approximately April 5, 2020 and would remain effective until the end of the current month, April 30, 2020.
4.100, Application of the evaluation criteria for diagnostic codes 70007007, 7011, and 7015:
Three issues within this section were highlighted by multiple commenters.
One commenter asked why it was necessary to wait for significant debilitation before compensation is awarded when using disease classification as a basis for compensation. VA notes current law requires that VA adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries that are based upon the average impairments of earning capacity from injuries or disabilities related to military service in civil occupations. See 38 U.S.C. 1155.
Second, disease classification is not a consistently accurate predictor of either disability or loss in earnings capacity.
VA makes no changes based on this comment.
Another commenter asked what are the alternatives that can be used instead of metabolic equivalent of task METs when METs testing is contraindicated for diagnostic codes using the General Rating Formula for Diseases of the Heart. VA notes that under certain evaluation criteria within the General Rating Formula for Diseases of the
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Heart, medication and selected echocardiogram findings may be used.
In addition, Note 2 of the General Rating Formula, as proposed, states that examiners are permitted to estimate METs level based on an interview when testing cannot be conducted. VA makes no changes based on this comment.
Three commenters objected to the removal of congestive heart failure CHF and left ventricular ejection fraction LVEF. One commenter stated that instead of removing CHF and LVEF, VA should require medical examiners to provide a full picture of the heart disability, including explaining if CHF
or LVEF is not caused by the heart condition, in accordance with 4.10.
Another commenter questioned the rationale for removing CHF and LVEF
because VA argued for including those metrics in a 2002 proposed rule. The commenter also stated that removing these metrics would be overly restrictive and burdensome to veterans with limited access to care. The last commenter objected to the removal of CHF and LVEF and cited a 2017 medical journal article which concluded that LVEF was the best metric for functional and structural cardiac remodeling. VA
appreciates these comments but continues with the proposed changes without modification for the following reasons.
First, under certain evaluation criteria within the General Rating Formula for Diseases of the Heart, medication and selected echocardiogram findings may be used instead of METs. Second, it should be noted that 4.10 requires in part full description of the effects of disability upon the persons ordinary activity. CHF is actually a medical diagnosis, and does not, in and of itself, describe disability. Additionally, ejection fraction LVEF is poorly related to exercise tolerance which is measured in METS. Topol, E.J., Textbook of Cardiovascular Medicine, 3rd Edition, pg. 1349 2007. MET, on the other hand, is a metric used to describe functional capacity or exercise tolerance of an individual performing activities, for some of which the difficulty with or inability to perform has a profoundly negative effect on earnings capacity. As VA explained in the proposed rule, LVEF and CHF are unreliable tools for assessing functional limitation and disability due to cardiac disease because they may be influenced by numerous factors not directly associated with the underlying cardiovascular disease. 84 FR at 37595.
Third, on August 22, 2002, VA
published proposed changes to 4.100
that, while providing a basis to include consideration of LVEF and CHF in the
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cardiac disability evaluation, also clarified that VA does not require all three tests i.e., METs, CHF, and LVEF
in order to evaluate a cardiac disability.
See 67 FR 54394. At the time, VA stated that our intent in providing alternative criteria was to avoid the need for a veteran to undergo additional tests that might be invasive, risky, costly, or time-consuming, if one or more objective and reliable tests or findings suitable for evaluation purposes are already of record. Id. at 54395. These proposed changes were finalized in 2006. See 71 FR 52457. VA
does not consider removing CHF and LVEF as inconsistent with its stated intention in 2002. VAs intent has consistently been to avoid, whenever possible, invasive, risky, costly, or timeconsuming tests when ascertaining level of impairment and METs testing is the least invasive procedure compared to CHF and LVEF testing. Further, although one commenter raised the issue of local accessibility of certain testing, VA notes that METs can be obtained via provider interview, observation, or actual physical testing.
Finally, a commenter who objected to the removal of CHF and LEVF also cited a 2017 medical journal article that involves functional and structural phenotyping of failing hearts to better diagnose, treat, and otherwise manage heart failure. The article does not, however, address residual disability leading to loss in earnings capacity, which is the primary focus of the ratings schedule.
4.104, Schedule of ratingscardiovascular system:
Two commenters raised three issues specific to this section. One commenter agreed with VAs continued recognition of palpitations and arrhythmias as elements within selected evaluation criteria. VA thanks the commenter for their input. One commenter disagreed with using METs, claiming they are inaccurate within key situations e.g., normal METs values despite cardiac abnormalities; symptomatic only with activities requiring greater than 10
METs; and METs are inaccurate for sustained activities. Finally, in place of METs, that commenter noted that disease is the limiting factor, and should be both measured as well as classified to determine compensation levels.
VA makes no changes based on the immediately preceding comments for the following reasons. VA disagrees with the commenters conclusion that METs are inaccurate in situations involving normal function despite anatomic abnormalities and during sustained activities. Regardless of whether any anatomic/medical/

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