VA Proposes Rule Change to Ensure Total Disability Benefits for All Veterans with ALS

Public Comments must be received by July 23

Graphic:  What is ALS?  Courtesy Huntsville Times

(91outcomes.com) - The U.S. Department of Veterans Affairs (VA) has announced that it proposes to amend its Schedule for Rating Disabilities by revising the evaluation criterion for amyotrophic lateral sclerosis (ALS) to provide a 100-percent evaluation for any veteran with service-connected ALS. 

According to VA, this change is necessary to adequately compensate veterans who suffer from this progressive, untreatable, and fatal disease. VA says this change is intended to provide a total disability rating for any veteran with service-connected ALS.

Comments must be received on or before July 23, 2010.

Written comments can be submitted:

• ONLINE
• FAX:  (202) 273-9026
• MAIL/HAND-DELIVERY – Deliver to:  Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420

Comments should indicate that they are submitted in response
to ``RIN 2900-AN60-Schedule for Rating Disabilities; Evaluation of Amyotrophic Lateral Sclerosis.''

VA proposes to amend its Schedule for Rating Disabilities (38 CFR part 4) by revising the evaluation criterion for ALS under diagnostic code 8017 in Sec.  4.124a, the schedule of ratings for neurological conditions and convulsive disorders. Currently, the schedule provides only a single criterion for ALS, a minimum disability evaluation of 30 percent. VA proposes to remove this criterion and replace it with a minimum disability evaluation of 100 percent. The Secretary has authority to make this amendment pursuant to 38 U.S.C.
1155.

ALS, also known as Lou Gehrig's disease, is a motor neuron disease that results in muscle weakness leading to a wide range of serious disabilities, including problems with mobility. It often affects the muscles that control swallowing, leading to the possibility of aspiration (the inspiratory sucking of fluid into the airways) and pneumonia. It eventually paralyzes the respiratory muscles, and the most common cause of death in ALS is respiratory failure. ALS is a terminal illness; the life expectancy of a person with ALS ordinarily ranges from about 3 to 5 years after diagnosis. Fifty percent of patients die within 3 years of diagnosis, about 20 percent live 5 years, and 10 percent survive for 10 or more years.

ALS is rated under 38 CFR 4.124a, diagnostic code 8017, which currently provides a minimum disability evaluation of 30 percent. However, the guidelines in 38 CFR 4.120 (Evaluations by comparison) direct that disability from neurologic conditions be rated in proportion to the impairment of motor, sensory, or mental function.

Therefore, any level of evaluation, including 100 percent, can currently be assigned for ALS under diagnostic code 8017. However, individuals with ALS have a rapidly deteriorating course of illness and quickly reach a level of total disability. Providing a 100-percent evaluation in all cases would obviate the need to reassess and reevaluate veterans with ALS repeatedly over a short period of time, as the condition worsens and inevitably and relentlessly progresses to total disability. Therefore, VA proposes to change the minimum
evaluation for ALS from 30 to 100 percent. Although ALS may not be totally disabling at the time of diagnosis or when VA compensation is claimed for the condition, ALS is a seriously disabling, rapidly progressive, untreatable, and fatal condition.

VA's schedule of ratings for neurological conditions and convulsive disorders provides a 100-percent disability evaluation for certain other motor neuron diseases that progressively lead to disability or death. See 38 CFR 4.124a, Diagnostic Codes 8005 (Bulbar palsy), 8105 (Sydenham's chorea of the ``progressive grave type''), and 8106 (Huntington's chorea). Given that ALS is a rapidly progressing neurodegenerative disease and that many of its disabling effects are similar to other neurological disorders that VA rates at 100 percent, VA proposes to compensate veterans with ALS similarly. The 100-percent rating would ensure that veterans with ALS are evaluated adequately and would eliminate any delay in reaching an appropriate level of compensation as their disease rapidly progresses.

In addition, VA proposes to add a note to consider the need for special monthly compensation (SMC), which VA says will be quite a common need in these veterans.

Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 (this is not a toll-free number) for an appointment.

In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at http://www.regulations.gov/search/Regs/home.html#docketDetail?R=VA-2010-VBA-0021, and on the page, select “Public Submissions” as the only selection.

FOR FURTHER INFORMATION CONTACT: Thomas J. Kniffen, Chief, Regulations Staff (211D), Compensation and Pension Service, Veterans Benefits Administration, U.S. Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420, phone: (202) 461-9725. (This is not a toll-free number.)

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For more information on ALS:

• Treatment for Amyotrophic Lateral Sclerosis (ALS) / Lou Gehrig's Disease
• Mayo Clinic:  ALS Complications
• NINDS Fact Sheet on ALS