SUPPLEMENTARY INFORMATION:

VA's Schedule for Rating Disabilities includes criteria for evaluating disabilities by analogy where there is no specific diagnostic code for the disability being evaluated. In 38 CFR 4.27 and 38 CFR 4.124a, the rating criteria reference examples of diseases that can be rated by analogy to certain specified diagnostic odes. Two of the ( printed page 75399) diagnostic codes listed in 38 CFR 4.27 and 4.124a, for rheumatoid (atrophic) arthritis and for dementia, are outdated due to changes to the diagnostic criteria for evaluating these diseases. Therefore, we are amending 38 CFR 4.27 and 4.124a to replace outdated references with the current diagnostic codes for ankylosing spondylitis, a disability similar to rheumatoid arthritis, and for dementia.

Section 4.27, Use of diagnostic code numbers, includes as an example: “Thus, rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine should be coded 5002-5289.” However, Diagnostic Code 5289 was removed from 38 CFR 4.71a, Schedule of ratings-musculoskeletal system, by a rulemaking published on August 27, 2003, at 68 FR 51454. Therefore, the reference to 5289 for ankylosis of the lumbar spine is outdated. We will replace the outdated reference to Diagnostic Code 5289 with the current Diagnostic Code for ankylosing spondylitis, 5240, which is a disability similar to rheumatoid arthritis.

Similarly, in § 4.124a, Schedule of ratings-neurological conditions and convulsive disorders, the paragraph discussing Mental Disorders in Epilepsies which appears after Diagnostic Code 8914 includes references to Diagnostic Codes 9304 and 9307 for dementia: “(e.g., 9304 or 9307)” and “(e.g., Diagnostic Code 9304 or 9307)”. However, Diagnostic Code 9307 was removed by a rulemaking published on October 8, 1996, at 61 FR 52695. Therefore, the reference to Diagnostic Code 9307 currently in 38 CFR 4.124a is outdated. We will remove the reference to Diagnostic Code 9307 and insert a reference to Diagnostic Code 9326, which replaced Diagnostic Code 9307.

Administrative Procedures Act

This final rule merely replaces inaccurate examples and does not alter the content of the regulations. Accordingly, there is a basis for dispensing with prior notice and comment and the delayed effective date provisions of 5 U.S.C. 553.

Paperwork Reduction Act

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

Regulatory Flexibility Act

Because no notice of proposed rulemaking is required in connection with the adoption of this final rule, no regulatory flexibility analysis is required under the Regulatory Flexibility Act (5 U.S.C. 601-612). Even so, 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.

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

Catalog of Federal Domestic Assistance Numbers: The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.104, Pension for Non-Service-Connected Disability for Veterans, and 64.109, Veterans Compensation for Service-Connected Disability.

For the reasons set out in the preamble, 38 CFR part 4 is amended as set forth below:

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

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

2. Amend § 4.27 by removing “5002-5289” and adding, in its place, “5002-5240”.

3. Amend § 4.124a following the undesignated center heading “The Epilepsies” at the conclusion of the table in the undesignated paragraph “Mental Disorders in Epilepsies” remove “9307” and add in its place “9326”.