VA Proposed Rule Changes

On February 15, 2022, the Veterans Benefits Administration published proposed rules in the Federal Register regarding changes to the regulations for multiple body systems including, but not limited to, the respiratory system, auditory disorders, and mental disorders. As with all “notice-and-comment” rulemaking, the general public is welcome to comment on the proposed rule changes.¬†

Respiratory Conditions / Sleep Apnea

Under VA’s proposed rule, the only respiratory disability that may combine with other respiratory disabilities is sleep apnea under Diagnostic Code 6847. However, rather than continuing to rate Veterans based on the type of treatment he or she receives, VA’s proposed rating criteria will focus on the results of the treatment.

For instance, VA proposes to assign a 0 percent evaluation when sleep apnea syndrome is asymptomatic, with or without treatment. VA would assign a 10 percent evaluation when treatment yields “incomplete relief.” VA would assign ratings above 10 percent ( e.g., 50 and 100 percent) only when treatment is either ineffective or the veteran is unable to use the prescribed treatment due to comorbid conditions. VA will likely define “comorbid conditions” as any condition that, in the opinion of a qualified medical provider, directly impedes or prevents the use of a recognized form of treatment intervention normally shown to be effective.

This is a huge departure from VA’s current rating scheme, and if this rule goes into effect, it will have a big impact on Veterans’ new claims for service connection for sleep apnea. However, based on the current language of the proposal, It doesn’t appear to impact any current ratings for sleep apnea. If you have additional questions or need help filing for service connection for sleep apnea, or if you are seeking an increased rating for sleep apnea, please contact our office by calling 404-467-9017.

Hearing Loss / Tinnitus

One of the most common concerns we hear from Veterans is how difficult it is to qualify for hearing loss under VA’s current rating criteria. Nevertheless, VA noted in its proposed rule change that it believes “the current definition of hearing loss is sufficient and fair for evaluation levels of disability.” However, this does not mean that no changes to hearing loss will be made. In fact, VA is proposing to evaluate tinnitus as part of the hearing loss condition rather than as a separate condition. This change would remove Diagnostic Code 6260 entirely.

Under the proposed rule, Diagnostic Code 6100 will provide a 10 percent evaluation for tinnitus associated with hearing loss only when hearing¬†loss, on its own, does not warrant a 10 percent evaluation or higher. According to VA, the presence of tinnitus does not generally impact a Veteran’s earning capacity beyond what is already contemplated by hearing loss, so an additional 10 percent evaluation for tinnitus will no longer be assigned.

Importantly, this process will not impact Veterans who are currently in receipt of service connection under DC 6260. If you have additional questions or need help filing for service connection for hearing loss or tinnitus, or if you are seeking an increased rating for hearing loss, please contact our office by calling 404-467-9017.

Mental Disorders / PTSD

Currently, the rating schedule for mental disorders provides two separate rating formulas, the General Rating Formula for Mental Disorders, and the Rating Formula for Eating Disorders. However, under VA’s proposed rule, those two formulas will be combined, using the World Health Organization Disability Assessment, colloquially known as WHODAS 2.0.

WHODAS 2.O assesses an individual’s ability to perform life activities based on six domains. These domains are: (1) Understanding and communicating, (2) ability to move and get around, (3) caring for oneself, (4) getting along with people, (5) carrying out life activities, and (6) participating in society.

However, for rating purposes, VA intends to combine domain four, getting along with people, and domain six, participating in society, into one category, leaving the following five domains: (1) Cognition ( i.e., understanding and communicating), (2) interpersonal interactions and relationships ( i.e., interacting with people and participating in society), (3) task completion and life activities, (4) navigating environments ( i.e., getting around), and (5) self-care.

As to the proposed General Rating Formula, there will be 100, 70, 50, 30, and 10 percent evaluations based on the severity, or “intensity” of impairment in all five domains. The levels of intensity for each domain will be none, mild, moderate, severe, or total. These categories will generally be defined as follows:

“None”—“No difficulties” associated with the domain;

“Mild”—“Slight difficulties in one or more aspects” of the domain that “do not interfere with tasks, activities, or relationships;”

“Moderate”—“Clinically significant difficulties in one or more aspects” of the domain “that interfere with tasks, activities, or relationships;”

“Severe”—“Serious difficulties in one or more aspects” of the domain “that interfere with tasks, activities, or relationships;”

“Total”—“Profound difficulties in one or more aspects” of the domain “that cannot be managed or remediated; incapable of even the most basic tasks within one or more aspects” of the domain; “difficulties that completely interfere with tasks, activities, or relationships.”

Getting properly service-connected for mental health conditions can be a complicated and difficult process. If you have additional questions, need help filing for service connection for mental health, or if you are seeking an increased rating for a mental health disability, please contact our office by calling (404) 692-6494.