All VA Regional Offices and Centers Fast Letter 08-36
SUBJ: Final Rule: Schedule for Rating Disabilities; Evaluation of Residuals of Traumatic Brain Injury (TBI)
Purpose
A final rulemaking amending 38 CFR 4.124a was published in the Federal Register on September 23, 2008, at 73 FR 54693. This rulemaking revises the portion of § 4.124a, Neurological conditions and convulsive disorders, which addresses residuals of traumatic brain injury (TBI) (diagnostic code 8045). The purpose of the revision is to provide detailed and updated criteria for evaluating residuals of traumatic brain injury.
Major Changes
Diagnostic code 8045 was formerly titled "Brain disease due to trauma." We revised the title to "Residuals of traumatic brain injury (TBI)" since this is current terminology for the condition.
TBI is classified as mild, moderate, or severe at, or close to, the time of the original injury, and while this classification will often correspond to the future level of functional impairment, that will not always be the case. Since this original designation as to severity of the original injury does not change, whatever the speed or extent of recovery, or the long-term disabling effects, it does not affect the rating assigned under diagnostic code 8045.
The residuals of TBI fall into 3 main categories of impairment: cognitive, emotional/behavioral, and physical. A group of subjective symptoms may sometimes also be the main residual of TBI. We have addressed all of these residuals in this rule, providing specific guidance on evaluating the most commonly seen residuals. It is not, however, possible to provide specific guidance concerning all possible residuals.
Former diagnostic code 8045 stated that purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). We have dropped reference to the use of
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hyphenated codes since this is standard rating practice and is addressed in § 4.27 (Use of diagnostic code numbers).
We have provided a list of the most common, but not all possible, physical (neurological) problems that may be seen after TBI. These problems are motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. There is a direction to rate each condition separately under an appropriate diagnostic code, as long as the same signs and symptoms are not used to support more than one evaluation, and to combine those evaluations under the provisions of 38 CFR 4.25 (Combined ratings table). Residuals that are reported but not mentioned on this list will be evaluated under the most appropriate diagnostic code.
We have also added a direction to consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc.
We have provided guidance on evaluating emotional/behavioral dysfunction by directing that evaluation under § 4.130 (Schedule of ratings--mental disorders) should be made when there is a diagnosis of a mental disorder. When there are emotional/behavioral symptoms, but there is no diagnosis of a mental disorder, the symptoms will be evaluated under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”
Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain.
Executive functions are speed of information processing, goal setting, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive.
Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others.
In a given individual, symptoms may fluctuate in severity from day to day.
The effects of cognitive impairment are numerous and far reaching, with profound effects on many areas of functioning: mental, physical, behavioral, and emotional. We have provided a table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” for evaluating the major disabling effects of cognitive impairment and also the subjective symptoms and neurobehavioral effects of TBI that are not classified elsewhere in this regulation.
These 10 effects or facets in the table are memory, attention, concentration, executive functions; judgment; social interaction; orientation; motor activity (with intact motor and sensory system); visual-spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness.
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We have provided a set of evaluation criteria representing logical increments of functioning for each facet, to assess the severity of each of these 10 common facets of impairment. Scores of severity for each facet range from 0 to 3, with an additional highest level called "total," although not all facets have all 5 levels of severity.
The rater assigns the appropriate score from 0 to "total" for each facet, based on the information about the severity of impairment for each facet that has been provided on the disability examination report by the examiner, as well as all other relevant evidence of record.
If one or more facets is rated as "total," a 100-percent evaluation will be assigned. If no facet is evaluated as "total," the overall percentage evaluation is based on the level of the highest facet as follows: 0 = 0 percent, 1 = 10 percent, 2 = 40 percent, and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet.
Former criteria under diagnostic code 8045 included a stipulation that no more than 10 percent could be assigned for purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma.
Since subjective symptoms are now evaluated under the table discussed above, this stipulation no longer applies, and evaluation levels of 0, 1, and 2 are available for subjective symptoms. Levels 1 and 2 require that there be 3 or more subjective symptoms that interfere with work; instrumental activities of daily living; or work, family, or other close relationships.
However, any residual of TBI with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, should be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than being rated under the table.
For purposes of combining evaluations, the evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered one condition.
We also added 5 notes for further clarification.
Note
(1) addresses the possible overlap of signs, symptoms, or both of a comorbid mental or neurologic or other physical disorder. It directs that not more than one evaluation be assigned based on the same signs or symptoms and if the signs or symptoms of two or more conditions cannot be clearly separated, to assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. It further says that if the signs or symptoms are clearly separable, to assign a separate evaluation for each condition.
Note
(2) states that symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation.
Note
(3) defines "Instrumental activities of daily living,” which is used as part of the evaluation criteria in the table as activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. It distinguishes these activities from "Activities of daily living," which refer to basic self-care
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and include bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet.
Note (
4) states that the terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning and that this classification does not affect the rating assigned under diagnostic code 8045.
Note
(5) addresses a request for review under the new criteria by a veteran whose residuals of TBI are rated under a prior version of diagnostic code 8045.
Effective Date and Request for Review
Effective Date
• The effective date of new evaluation criteria under diagnostic code 8045 is October 23, 2008.
• For a claim received by VA on or after October 23, 2008, rate the veteran under the new criteria for the period beginning on or after that date, but rate the veteran under the old criteria for any period before that date.
• Any award under the new criteria will not be effective prior to October 23, 2008.
• Assess all claims received by VA before October 23, 2008, for which a period beginning on or after that date has not been rated under the new criteria and the rating decision is not yet final, either because the one-year appeal period has not expired or because the veteran has filed a timely notice of disagreement but the Board of Veterans' Appeals has not yet decided the appeal. For these claims, rate the veteran under the old criteria for periods prior to October 23, 2008, but under the new criteria or the old criteria, whichever are more favorable, for periods beginning on or after October 23, 2008. Unless applying the new criteria results in a higher rating than applying the old criteria does, rate the claim under the old criteria.
• Examinations are to be conducted in accordance with the new TBI worksheet released on October 10, 2008, until the electronic templates are updated.
Review Request
• A veteran who was rated under the old criteria may request review under the new criteria. This information is in Note (5) in new diagnostic code 8045. The veteran’s disability does not have to have changed since the last review.
• If a veteran requests review under the new criteria, VA will conduct new examinations that conform to the new criteria. VA will reassess the veteran’s disability under the new criteria. Any review under the new criteria will not result in a reduction in a veteran’s
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disability rating, unless the veteran’s disability is shown to have improved per 38 CFR 3.951(a). A rating may be reduced if the veteran has shown improvement since the last review per 38 CFR 3.105.
• A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; in no case will an increased award under the new evaluation criteria be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR 3.114, if applicable.
Additional Guidance
A new Training Letter and a new VA examination template will be issued shortly. The new VA examination worksheet was issued on October 10, 2008 (see Fast Letter 08-34, Revised Traumatic Brain Injury (TBI) Worksheet).
Questions
Enclosed is a copy of the Federal Register publication containing the text of the final rulemaking. Questions concerning the new regulation or this letter should be emailed to VAVBAWAS/CO/21FL.
/S/
Bradley G. Mayes
Director
Compensation and Pension Service
Enclosure
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[Federal Register: September 23, 2008 (Volume 73, Number 185)]
[Rules and Regulations]
[Page 54693-54708]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
Question
carlie
http://www.tvc.state.tx.us/HTML%20Pages%20...es/FL08-036.pdf
DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C. 20420
October 24, 2008
Director (00/21) In Reply Refer to: 211D
All VA Regional Offices and Centers Fast Letter 08-36
SUBJ: Final Rule: Schedule for Rating Disabilities; Evaluation of Residuals of Traumatic Brain Injury (TBI)
Purpose
A final rulemaking amending 38 CFR 4.124a was published in the Federal Register on September 23, 2008, at 73 FR 54693. This rulemaking revises the portion of § 4.124a, Neurological conditions and convulsive disorders, which addresses residuals of traumatic brain injury (TBI) (diagnostic code 8045). The purpose of the revision is to provide detailed and updated criteria for evaluating residuals of traumatic brain injury.
Major Changes
Diagnostic code 8045 was formerly titled "Brain disease due to trauma." We revised the title to "Residuals of traumatic brain injury (TBI)" since this is current terminology for the condition.
TBI is classified as mild, moderate, or severe at, or close to, the time of the original injury, and while this classification will often correspond to the future level of functional impairment, that will not always be the case. Since this original designation as to severity of the original injury does not change, whatever the speed or extent of recovery, or the long-term disabling effects, it does not affect the rating assigned under diagnostic code 8045.
The residuals of TBI fall into 3 main categories of impairment: cognitive, emotional/behavioral, and physical. A group of subjective symptoms may sometimes also be the main residual of TBI. We have addressed all of these residuals in this rule, providing specific guidance on evaluating the most commonly seen residuals. It is not, however, possible to provide specific guidance concerning all possible residuals.
Former diagnostic code 8045 stated that purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). We have dropped reference to the use of
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hyphenated codes since this is standard rating practice and is addressed in § 4.27 (Use of diagnostic code numbers).
We have provided a list of the most common, but not all possible, physical (neurological) problems that may be seen after TBI. These problems are motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. There is a direction to rate each condition separately under an appropriate diagnostic code, as long as the same signs and symptoms are not used to support more than one evaluation, and to combine those evaluations under the provisions of 38 CFR 4.25 (Combined ratings table). Residuals that are reported but not mentioned on this list will be evaluated under the most appropriate diagnostic code.
We have also added a direction to consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc.
We have provided guidance on evaluating emotional/behavioral dysfunction by directing that evaluation under § 4.130 (Schedule of ratings--mental disorders) should be made when there is a diagnosis of a mental disorder. When there are emotional/behavioral symptoms, but there is no diagnosis of a mental disorder, the symptoms will be evaluated under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”
Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain.
Executive functions are speed of information processing, goal setting, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive.
Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others.
In a given individual, symptoms may fluctuate in severity from day to day.
The effects of cognitive impairment are numerous and far reaching, with profound effects on many areas of functioning: mental, physical, behavioral, and emotional. We have provided a table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” for evaluating the major disabling effects of cognitive impairment and also the subjective symptoms and neurobehavioral effects of TBI that are not classified elsewhere in this regulation.
These 10 effects or facets in the table are memory, attention, concentration, executive functions; judgment; social interaction; orientation; motor activity (with intact motor and sensory system); visual-spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness.
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We have provided a set of evaluation criteria representing logical increments of functioning for each facet, to assess the severity of each of these 10 common facets of impairment. Scores of severity for each facet range from 0 to 3, with an additional highest level called "total," although not all facets have all 5 levels of severity.
The rater assigns the appropriate score from 0 to "total" for each facet, based on the information about the severity of impairment for each facet that has been provided on the disability examination report by the examiner, as well as all other relevant evidence of record.
If one or more facets is rated as "total," a 100-percent evaluation will be assigned. If no facet is evaluated as "total," the overall percentage evaluation is based on the level of the highest facet as follows: 0 = 0 percent, 1 = 10 percent, 2 = 40 percent, and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet.
Former criteria under diagnostic code 8045 included a stipulation that no more than 10 percent could be assigned for purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma.
Since subjective symptoms are now evaluated under the table discussed above, this stipulation no longer applies, and evaluation levels of 0, 1, and 2 are available for subjective symptoms. Levels 1 and 2 require that there be 3 or more subjective symptoms that interfere with work; instrumental activities of daily living; or work, family, or other close relationships.
However, any residual of TBI with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, should be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than being rated under the table.
For purposes of combining evaluations, the evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered one condition.
We also added 5 notes for further clarification.
Note
(1) addresses the possible overlap of signs, symptoms, or both of a comorbid mental or neurologic or other physical disorder. It directs that not more than one evaluation be assigned based on the same signs or symptoms and if the signs or symptoms of two or more conditions cannot be clearly separated, to assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. It further says that if the signs or symptoms are clearly separable, to assign a separate evaluation for each condition.
Note
(2) states that symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation.
Note
(3) defines "Instrumental activities of daily living,” which is used as part of the evaluation criteria in the table as activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. It distinguishes these activities from "Activities of daily living," which refer to basic self-care
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and include bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet.
Note (
4) states that the terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning and that this classification does not affect the rating assigned under diagnostic code 8045.
Note
(5) addresses a request for review under the new criteria by a veteran whose residuals of TBI are rated under a prior version of diagnostic code 8045.
Effective Date and Request for Review
Effective Date
• The effective date of new evaluation criteria under diagnostic code 8045 is October 23, 2008.
• For a claim received by VA on or after October 23, 2008, rate the veteran under the new criteria for the period beginning on or after that date, but rate the veteran under the old criteria for any period before that date.
• Any award under the new criteria will not be effective prior to October 23, 2008.
• Assess all claims received by VA before October 23, 2008, for which a period beginning on or after that date has not been rated under the new criteria and the rating decision is not yet final, either because the one-year appeal period has not expired or because the veteran has filed a timely notice of disagreement but the Board of Veterans' Appeals has not yet decided the appeal. For these claims, rate the veteran under the old criteria for periods prior to October 23, 2008, but under the new criteria or the old criteria, whichever are more favorable, for periods beginning on or after October 23, 2008. Unless applying the new criteria results in a higher rating than applying the old criteria does, rate the claim under the old criteria.
• Examinations are to be conducted in accordance with the new TBI worksheet released on October 10, 2008, until the electronic templates are updated.
Review Request
• A veteran who was rated under the old criteria may request review under the new criteria. This information is in Note (5) in new diagnostic code 8045. The veteran’s disability does not have to have changed since the last review.
• If a veteran requests review under the new criteria, VA will conduct new examinations that conform to the new criteria. VA will reassess the veteran’s disability under the new criteria. Any review under the new criteria will not result in a reduction in a veteran’s
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disability rating, unless the veteran’s disability is shown to have improved per 38 CFR 3.951(a). A rating may be reduced if the veteran has shown improvement since the last review per 38 CFR 3.105.
• A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; in no case will an increased award under the new evaluation criteria be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR 3.114, if applicable.
Additional Guidance
A new Training Letter and a new VA examination template will be issued shortly. The new VA examination worksheet was issued on October 10, 2008 (see Fast Letter 08-34, Revised Traumatic Brain Injury (TBI) Worksheet).
Questions
Enclosed is a copy of the Federal Register publication containing the text of the final rulemaking. Questions concerning the new regulation or this letter should be emailed to VAVBAWAS/CO/21FL.
/S/
Bradley G. Mayes
Director
Compensation and Pension Service
Enclosure
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[Federal Register: September 23, 2008 (Volume 73, Number 185)]
[Rules and Regulations]
[Page 54693-54708]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23se08-16]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AM75
Schedule for Rating Disabilities; Evaluation of Residuals of
Traumatic Brain Injury (TBI)
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 neurological conditions and convulsive
disorders. The effect of this action is to provide detailed and updated
criteria for evaluating residuals of traumatic brain injury (TBI).
DATES: Effective Date: This amendment is effective October 23, 2008.
Applicability Date: The amendment shall apply to all applications
for benefits received by VA on or after October 23, 2008. The old
criteria will apply to applications received by VA before that date.
However, a veteran whose residuals of TBI were rated by VA under a
prior version of 38 CFR 4.124a, diagnostic code 8045, will be permitted
to request review under the new criteria, irrespective of whether his
or her disability has worsened since the last review or whether VA
receives any additional evidence.
The effective date of any increase in
disability compensation based solely on the new criteria would be no
earlier than the effective date of the new criteria. The effective date
of any award, or any increase in disability compensation, based solely
on these new rating criteria will not be earlier than the effective
date of this rule, but will otherwise be assigned under the current
regulations governing effective dates, 38 CFR 3.400, etc. The rate of
disability compensation will not be reduced based solely on these new
rating criteria.
FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Chief, Regulations
Staff (211D), Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Ave., NW.,
Washington, DC 20420, (727) 319-5847. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On January 3, 2008, VA published in the
Federal Register (73 FR 432) a proposal to amend VA regulations to
revise the material under diagnostic code 8045, Brain disease due to
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trauma, in 38 CFR 4.124a (neurological conditions and convulsive
disorders) in the VA Schedule for Rating Disabilities (the rating
schedule). Interested persons were invited to submit written comments,
suggestions, or objections on or before February 4, 2008. We received
comments from the following groups and associations: American
Optometric Association, Brain Injury Association of America, American
Speech-Language-Hearing Association, Moss TBI Model System Centers,
Senate Committee on Veterans' Affairs, The American Legion and National
Veterans Legal Services Program, Disabled American Veterans, Department
of the Army Surgeon General, National Organization of Veterans
Advocates, Blinded Veterans Association, Veterans Outreach of the
[[Page 54694]]
Cape and Islands, Wounded Warrior Project, and American Federation of
Government Employees Local 2823 of Cleveland, Ohio. In
addition, we received comments from 6 concerned individuals, including
one affiliated with the Department of Kinesiology, Indiana University,
and one affiliated with Yale Occupational and Environmental Medicine.
We have made many changes based on these comments.
Title of Diagnostic Code 8045
One commenter disagreed with the change in the title of diagnostic
code 8045 from ``Brain disease due to trauma'' to ``Residuals of
traumatic brain injury''. The commenter said that this represents an
obfuscation of the disease process of brain injury and that raters
could misunderstand the conditions they are evaluating as static versus
dynamic, potentially evolving conditions. Another commenter supported
the updated title.
We disagree that the revised title would cause rater
misunderstanding. Raters use the information provided in medical
examinations to determine an evaluation based on the criteria under the
diagnostic code for the condition. The examiner who conducts TBI
disability examinations for the Compensation and Pension Service will
be asked if the condition has stabilized, and, if not, when stability
is expected. If the condition has not stabilized, a future examination
will be scheduled. Furthermore, any time a service-connected condition
such as TBI worsens, a veteran may provide additional medical
information and request a re-evaluation. Therefore, there are
provisions to take into account changes in the status of TBI residuals
and to re-evaluate when appropriate.
Comment Period
One commenter recommended that we provide a full 60-day comment
period for the public to adequately assess the proposed rule and
develop cogent comments because 30 days is an inadequate time frame for
response. We agree that 30 days is a short time in which to analyze a
complex regulation. However, there is a critical need for specific
criteria to evaluate the many veterans who have suffered a TBI, and we
made a decision to expedite the regulation to the extent possible. We
did receive a wide array of comments on numerous aspects of the
proposed regulation from many organizations and individuals.
Anoxic Brain Injury
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We received three comments concerning anoxic brain injury, a
condition resulting from a severe decrease in the oxygen supply to the
brain that may be due to any of a number of possible etiologies,
including trauma, strangulation, carbon monoxide poisoning, stroke, and
many others. These commenters felt that when anoxic brain injury is due
to brain trauma, it should be taken into account in this regulation,
and one commenter also felt it should be added to the title of
diagnostic code 8045.
As stated in the supplementary information to the proposed rule,
revised diagnostic code 8045 addresses a specific condition, namely, an
injury to the brain from an external force that results in immediate
effects such as loss or alteration of consciousness, amnesia, or
sometimes neurological impairments. Anoxic brain injury does not
necessarily fit this definition since it has many possible etiologies
other than trauma. Raters have flexibility in many cases in selecting
the most appropriate diagnostic code(s) to use to evaluate a condition,
particularly when the specific condition is not listed in the rating
schedule.
They could, therefore, evaluate anoxic brain injury under
diagnostic code 8045 if the TBI criteria are appropriate to the
findings. However, anoxic brain injury is common enough in veterans to
warrant its own diagnostic code, and adding a specific diagnostic code
would also allow statistical tracking of the numbers of veterans who
suffer an anoxic brain injury.
We therefore plan to add anoxic brain injury to the neurological
conditions and convulsive disorders section of the rating schedule
(Sec. 4.124a of this part) as part of the overall revision of that
section.
Until anoxic brain injury is added to the rating schedule, it
can be rated analogously, depending on the specific medical findings in
a particular case, to TBI under diagnostic code 8045 or to another
condition, such as brain, vessels, hemorrhage from (diagnostic code
8009), if hemorrhage is the cause; organic mental disorder, other
(including personality change due to a general medical condition)
(diagnostic code 9327 in the mental disorders section of the rating
schedule (Sec. 4.130 of this part)); nerve damage, under one or more
diagnostic codes for specific nerves that are affected; etc.
Definition and Classification of TBI
In the preamble to the proposed regulation, we provided a brief
definition of TBI as an injury to the brain from an external force that
results in immediate effects such as loss or alteration of
consciousness, amnesia, or sometimes neurological impairments. We
further stated that these abnormalities may all be transient, but more
prolonged or even permanent problems with a wide range of impairment in
such areas as physical, mental, and emotional/behavioral functioning
may occur.
We received multiple comments concerning this definition.
One commenter suggested using the guidelines developed by the Mild
Traumatic Brain Injury Committee of the Head Injury Interdisciplinary
Special Interest Group of the American Congress of Rehabilitation
Medicine because the use of the term ``immediate effects'' in the
proposed definition would discount effects that emerge later. The
definition in the preamble to the proposed regulation is very similar
to the commenter's suggested definition, which requires, in part, a
period of loss of consciousness, any loss of memory for events
immediately before or after the accident, and any alteration in mental
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state at the time of the accident (e.g., feeling dazed, disoriented, or
confused); or focal neurological deficit(s) that may or may not be
transient.
Therefore, the commenter's suggested definition also
requires immediate effects, and has very similar provisions, and we
make no change based on this comment.
A related comment was that there may not always have been loss or
serious alteration of consciousness in patients with TBI and that the
immediate effects may be subtle and unnoticed in the chaos of battle
and that the language should make this point clear to adjudicators. The
adjudicators (raters) who evaluate the effects of TBI do not make the
diagnosis of TBI.
Raters rely upon a diagnosis made by clinicians,
based on a standard definition and criteria, and the brief definition
in the proposed regulation does not require a ``serious'' alteration of
consciousness but simply ``loss or alteration of consciousness''. We
therefore make no change based on this comment.
Another commenter suggested we focus more attention on an
objective, standardized assessment of acute TBI severity as near as
possible to the time of injury.
This comment is beyond the scope of
this regulation as veterans do not present for disability evaluation at
or near the time of injury, and this comment is more pertinent to those
who assess injured service members at the time of injury.
Another commenter stated that the categories of ``minimal'' or
``sub
[[Page 54695]]
clinical'' should be added to ``mild,'' ``moderate,'' and ``severe''
TBI (which are the usual categories of TBI in standard definitions),
since TBI may show no documentable focal neurological dysfunction or
serious concussion in the immediate post-injury period. We make no
change based on this comment, as we have provided a brief version of a
standard definition of TBI that was developed and concurred in by a
panel of TBI experts from VA and the Department of Defense and that is
now in standard use by both Departments.
The definition does not
require that either ``focal neurological dysfunction'' or ``serious
concussion'' be present for a diagnosis of TBI. Moreover, even if TBI
results in immediate documentable focal neurological dysfunction or
serious concussion, those effects need not persist for a veteran to be
compensated for TBI residuals. The regulation provides compensation for
a wide variety of residuals, including emotional impairment, impaired
judgment, social behavior, etc.
We also note that the definition of TBI commented upon does not
even appear in our regulation. If a veteran claims compensation for
residuals of TBI and has an in-service diagnosis of TBI, it is unlikely
that VA would question such a diagnosis absent an evidentiary reason to
do so.
The purpose of this regulation is to provide our evaluators with
a basis to rate any symptoms--objective or subjective--that a medical
professional has linked to one or more in-service TBIs. If such an
injury has already been noted during service, the medical examiner will
simply have to determine whether the current disability is
etiologically consistent with that injury.
Another commenter said that the proposed definition of TBI does not
take into account the fact that mild TBI is epidemiologically distinct
from moderate and severe TBI and that failure to consider the different
epidemiological factors of mild TBI may result in awarding disability
ratings for impairments associated with other non-neurological
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disorders.
It is clinicians, rather than raters, who examine veterans with TBI
and make decisions regarding the diagnosis of TBI and what findings are
associated with that diagnosis.
This regulation does not provide
separate criteria for mild, moderate, and severe TBI, which are
designations made at the time of the initial injury and, as stated in
the proposed regulation, do not necessarily correlate with the severity
of residual effects.
We make no change based on his comment.
Minimum Evaluation for TBI and Suggestion for Interim Regulation
We received two comments suggesting that we provide a minimum
evaluation for TBI.
There is a wide range of severity in residuals of
TBI. Some veterans are totally disabled by the residuals, while others
suffer minimal or no effect on their employability as a result of their
TBI. There is no anticipated minimum level of severity of TBI residuals
that would apply to all veterans, even those discharged due to a TBI.
Some veterans may be discharged because they are totally or
significantly disabled, while others may be discharged because the
injury was sufficient to prevent the carrying out of the individual's
particular service duties, even if the residuals would not prevent the
individual from being able to be gainfully employed as a civilian.
Another commenter suggested that we issue an interim regulation
similar to 38 CFR 4.129 (Mental disorders due to traumatic stress),
which states that when a mental disorder that develops in service as a
result of a highly stressful event is severe enough to bring about the
veteran's release from active military service, the rating agency shall
assign an evaluation of not less than 50 percent and schedule an
examination within the six-month period following the veteran's
discharge to determine whether a change in evaluation is warranted. The
commenter suggested that the interim regulation provide that if a
veteran is discharged due to TBI, VA should assign an evaluation of not
less than 50 percent and schedule an examination 6 months following the
veteran's discharge.
As discussed above, the fact that a veteran is discharged due to
TBI does not necessarily imply that it is at least 50-percent
disabling. It would therefore not be appropriate to assign a 50-percent
evaluation in all cases, no matter how minor the residuals. In
addition, certain residuals of TBI, in particular, the group of
subjective symptoms that commonly occur after TBI, may be very
disabling in the short term, but the great majority of subjective
symptoms substantially improve or completely resolve within 3 months
following the TBI. Such residuals would not warrant a post-discharge
evaluation of at least 50 percent for 6 months or more. There is an
existing regulation (38 CFR 4.28, Prestabilization rating from date of
discharge from service) that applies under certain conditions to TBI
and any other disability resulting from disease or injury. It provides
for the assignment of a 100-percent evaluation in the immediate post-
discharge period for an unstabilized condition with severe disability,
such that substantially gainful employment is not feasible or
advisable, or a 50-percent evaluation for unhealed or incompletely
healed wounds or injuries with material impairment of employability
likely.
These evaluations do not require an examination before
assignment and will be continued for 12 months following discharge.
Section 4.28 provides substantially the same benefit for veterans with
TBI as the suggested interim regulation would, but does require that a
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certain level of severity be met.
We find the criteria in Sec. 4.28 to
be a reasonable and appropriate way to evaluate many veterans with TBI
residuals in the immediate post-discharge period and therefore do not
agree that an interim regulation is needed. While 38 CFR 4.28 also
applies to mental disorders, determining the stability, likelihood of
improvement, and effect on employment of post-traumatic stress disorder
(PTSD) and related mental disorders is considerably more difficult than
in the case of a neurologic disorder such as TBI and often requires a
long period of observation and treatment to determine. Section 4.129
ensures that veterans with certain mental disorders, primarily PTSD,
receive an immediate post-discharge evaluation of at least 50 percent,
when discharged for those mental disorders, since applying 38 CFR 4.28
might be very difficult in the case of those mental disorders.
Limited Scope of Abnormalities in Regulation
We received 2 comments on the scope of the abnormalities included
in the regulation. The commenters said that the proposal only takes
into account one body system and one injury rather than the totality of
the pathophysiology of the whole body and associated injuries and that
there could be permanent problems in the areas of cognitive, physical,
mental, communicative, emotional, behavioral, social, vocational or
medical (neurological, cardiovascular, neuroendocrine, immunological,
orthopedic, respiratory, renal) function.
We disagree with the commenter because the regulation does take
into account all possible affected body systems and all disabling
effects. It provides specific criteria only for evaluating cognitive
impairment and subjective symptoms that result from TBI because all
other disabling effects can be evaluated under existing diagnostic
codes regardless of the body system affected. The regulation lists
[[Page 54696]]
numerous additional effects of TBI: Motor and sensory dysfunction,
including pain, of the extremities and face; visual impairment; hearing
loss and tinnitus; loss of sense of smell and taste; seizures; gait,
coordination, and balance problems; speech and other communication
difficulties, including aphasia and related disorders, and dysarthria;
neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions;
autonomic nerve dysfunctions; and endocrine dysfunctions. It further
states that these are not the only possible residuals and that
residuals either on this list or not on this list that are reported on
an examination are to be evaluated under the most appropriate
diagnostic code.
Therefore, the regulation directs how to evaluate any
residual of TBI.
Symptoms Cluster Evaluation
The proposed regulation provided criteria for the evaluation of a
cluster of subjective symptoms, which may be the only residual of TBI.
Currently, subjective symptoms due to TBI can be rated under diagnostic
code 8045 at a maximum of 10 percent. The proposed regulation based the
evaluation of subjective symptoms on the number of symptoms present,
and provided evaluation levels of 20, 30, and 40 percent. It required
that at least 3 of a specified group of symptoms be present to qualify
as a cluster. We received many comments on this proposal, including
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some stating that subjective complaints can be more than 40 percent
disabling as individual symptoms, that the levels of evaluation do not
take the severity and frequency of symptoms or functional impairment
into account, that a veteran could be catastrophically disabled by a
single symptom, and that veterans with TBI should not need an extra-
schedular evaluation to receive a total disability rating.
We agree in general with the commenters and, based on those
comments, have substantially changed the method of evaluating
subjective symptoms.
We have incorporated subjective symptoms into a
rating table (proposed as a table for rating only cognitive impairment)
that now combines the evaluation of cognitive impairment and other
residuals of TBI not otherwise classified. The subjective symptoms are
now evaluated in a facet called subjective symptoms at a level between
0 and 2 based on functional impairment, that is, the extent of
interference with the veteran's ability to work; to perform
instrumental activities of daily living; or to have close relationships
in work, family, or other settings.
We have retained the requirement
that three or more subjective symptoms be present but have removed the
requirement that the symptoms be from a defined list, because some of
the items on our proposed list, such as inappropriate social behavior,
aggression, and impulsivity, overlap with, or may themselves be
considered to be neurobehavioral effects. We will rely on the examiner
to determine what constitutes a subjective symptom and what constitutes
an observable neurobehavioral effect for purposes of evaluating these
facets using the table in the regulation.
In conjunction with this change, we added a note defining
``instrumental activities of daily living'' as referring to activities
other than self-care that are needed for independent living, such as
meal preparation, doing housework and other chores, shopping,
traveling, doing laundry, being responsible for one's own medications,
and using a telephone.
We also explain in the note that ``instrumental
activities of daily living'' are distinguished from ``activities of
daily living,'' which refers to basic self-care and includes bathing or
showering, dressing, eating, getting in or out of bed or a chair, and
using the toilet.
We also received a comment that the frequency, severity, and
duration of other neurobehavioral effects in the cognitive impairment
table should be assessed instead of the number of effects.
We therefore
changed the way of evaluating neurobehavioral effects from a method
based on the number of effects to one based on the extent of
interference with workplace interaction and social interaction. These
changes provide a more functional-based assessment for both subjective
symptoms and neurobehavioral effects.
The proposed rule prohibited separate evaluations for cognitive
impairment and the symptoms cluster. One commenter stated that this
prohibition should include only those disabilities with overlapping
symptoms.
This prohibition no longer applies since both cognitive
impairment and subjective symptoms are evaluated under the same table,
and the effects of both would be considered in determining an
evaluation.
We received 2 comments about the current maximum 10-percent
evaluation for subjective symptoms. The first commenter said that this
maximum evaluation should be removed immediately. The other commenter
said that the current 10-percent limitation is not an issue as most
veterans also have PTSD and the cognitive/emotional impairments are
considered in the evaluation for PTSD. The second commenter also said
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that, if substantiated on medical examination, complaints are no longer
``purely subjective''.
Since the 10-percent limitation is a regulatory requirement, we
must proceed with the regulatory process to remove it, as we have done
in this regulation.
If we removed it in a separate rulemaking without
replacing it with another rule, there would be no provision at all for
rating subjective symptoms, a lack that would clearly disadvantage
veterans. In any case, we proposed to eliminate the 10-percent
limitation on ratings for subjective symptoms and adopt that proposal
in this final rule.
As for the second comment, we disagree that
subjective symptoms reported on examination are no longer purely
subjective. While a clinician's judgment is important in assessing the
validity of complaints, there are no tests, for example, that would
prove or disprove that a headache is present. The fact that symptoms
are reported on an examination does not establish them as objective.
Finally, not all veterans with disabling subjective symptoms due to TBI
also have PTSD, and we therefore need a way to take the subjective
symptoms into account, as we have done in the table in this regulation.
We make no change based on these comments.
One commenter stated that it is unclear which set of diagnostic
criteria, the DSM-IV research criteria for postconcussional disorder or
the ICD-10-CM criteria for postconcussional syndrome, are to be used
when evaluating symptoms clusters. (``DSM-IV'' refers to the Diagnostic
and Statistical Manual of Mental Disorders, 4th edition, and ``ICD-10-
CM'' refers to the International Classification of Diseases, Tenth
Revision, Clinical Modification.)
The proposed rule did not use either
set of criteria for evaluating symptoms clusters, nor does the final
rule. We did not limit the evaluation of symptoms clusters to post-
concussion syndrome or mild TBI (a term sometimes used interchangeably
with post-concussion syndrome), as the commenter suggests. The table
for the evaluation of cognitive impairment and subjective symptoms in
the final rule is also not limited to TBI that was classified at any
particular level. The regulation states in note (4) under diagnostic
code 8045 that the initial classification of TBI at or near the time of
injury as mild, moderate, or severe does not affect the rating assigned
under diagnostic code 8045. We therefore make no change based on this
comment.
[[Page 54697]]
One commenter said that data are insufficient to support VA's
statement that symptoms following mild TBI resolve in 3 months for most
affected people and in a small percentage become permanent.
Research is
continuing in this area, but there are numerous references that support
this statement, including ``Mild Traumatic Brain Injury and
Postconcussion Syndrome'' (Michael A. McCrea, 86, 2008), which states
that symptoms after mild TBI are typically transient, with rapid or
gradual resolution within days to weeks after injury in an overwhelming
majority of patients with mild TBI.
One commenter felt that the term post-concussion syndrome should be
dropped. That term is synonymous with the term mild TBI. We did not in
the proposed rule, and have not in the final rule, limited the
evaluation of mild, moderate, or severe TBI to any single criterion or
set of criteria.
Therefore, we have not used the term post-concussion
syndrome in the final rule. Another commenter stated that the proposed
criteria do not acknowledge all of the complexities of evaluating
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residuals of mild TBI and that self-reported symptoms should not be
ignored.
A third commenter said that all types of TBI should be
assessed for cognitive function because an individual with mild TBI may
also have cognitive impairment. The final rule evaluates cognitive
impairment and subjective symptoms under a single table, so that the
severity of all residuals can be taken into account, regardless of the
initial severity designation of the episode of TBI.
We therefore make
no changes based on these comments.
Cognitive Impairment Evaluation
The proposed regulation included a table for the evaluation of
cognitive impairment based on 11 facets of the condition, with criteria
for evaluation of each of the facets at levels of 0 through 4, although
not every facet contained all 5 levels, since certain levels were not
appropriate for some facets. The 3 highest evaluation levels were to be
added and the sum divided by 3 and rounded to the nearest whole number.
The resulting numbers equated to percentage evaluations as follows: 0 =
0 percent, 1 = 10 percent, 2 = 40 percent, 3 = 70 percent, and 4 = 100
percent. We received many comments concerning the table's reliability
and validity, the specificity of the facets in general, the content of
specific facets, and the evaluation formula itself.
Comments Concerning Reliability, Validity, and Scientific Evidence of
Accuracy of the Table
Three commenters said the cognitive impairment table lacked
reliability, validation, and scientific evidence of accuracy. By
statute (38 U.S.C. 1155), VA disability ratings are based on average
impairment of earning capacity, as reflected by evaluation criteria in
the rating schedule, which the Secretary may revise from time to time
``in accordance with experience.'' While medical information and
expertise are significant factors in revising the list of rating
schedule disabilities and evaluation criteria, they are not the only
relevant factors that VA must rely upon in crafting its rating
schedule.
We must also consider social and sociological factors in
determining the level of impaired employability caused by a particular
disability.
The American Medical Association Guides to the Evaluation of
Permanent Impairment (AMA Guides) represent a widely used disability
evaluating system, especially in evaluating disability for workers'
compensation. The AMA relies on a large group of editors, advisory
panelists, and contributors who are MDs and PhDs. VA has consulted with
numerous TBI experts from various specialty areas (psychology,
neurology, etc.) in developing this regulation.
It thus appears that
percentage evaluations are derived by the AMA in ways similar to VA's,
and we make no change based on this comment. VA has considered the
AMA's approach and has sought and relied on expert opinion in a similar
manner.
Comment Concerning Lack of Specificity of Data To Determine Rating
Another commenter stated that there is lack of specificity about
what data will be used to determine the ratings and asked if they will
be based solely on medical records review or whether VA will accept
input from family, caregivers, and medical and rehabilitation
Page 15.
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personnel.
The commenter also asked if ratings can be assigned without
neuropsychological testing and asked about veterans for whom English is
not their first language.
The commenter also asked if education level
is a factor.
One commenter said that there are a mixture of subjective
and objective findings in the table, but the type of information to be
used for rating is unclear.
VA has a duty to assist veterans in gathering evidence necessary to
substantiate their claims, and there is a complex set of regulations,
guidelines, and case law that raters follow in doing so. Raters are
required to consider all evidence of record in making a disability
determination.
This includes the service medical records plus any
evidence or statements the veteran chooses to submit from VA or non-VA
medical facilities, family, friends, caretakers, or any others familiar
with the veteran's disability.
In most cases, a Compensation and
Pension disability examination will be conducted, and the report based
on that examination will be an important part of the record to be
reviewed.
There is no need to include in a particular rating schedule
provision information about what evidence VA will use in applying that
provision, since the same general regulations and procedures governing
evidence to be considered apply in all cases.
Neuropsychological testing is not conducted in all cases.
The need
for such testing is left to the discretion of the clinician who
conducts the disability examination.
Many veterans will have had such
testing prior to entering the disability evaluation process, and, if
so, their results would be part of the evidence considered by raters.
In other cases, while the veteran may claim to have suffered a TBI, the
history may not confirm that such an injury occurred, or there may be
no current symptoms, if one did occur.
Conducting neuropsychological
testing in such cases would be unnecessary and a wasteful use of
resources. Concerning veterans for whom English is not their first
language, the examiner determines whether or not an adequate history
can be obtained.
If not, the examiner can order a translator to appear
with the veteran at a new exam. In the alternative, the veteran's
history can be obtained from other sources (family, friends,
caretakers, medical records, etc.), as noted above. The comment about
whether education level is a factor is unclear but does not appear to
be pertinent.
We make no change based on this comment.
Comments Concerning Specificity and Objectivity of Facets of Table
A number of commenters expressed concern that the proposed
cognitive impairment table did not include sufficient specificity and
objectivity for the evaluation of facets in the table, and said that
there was a lack of clarity as to how raters will determine whether the
criteria are met.
We agree in general and have revised the contents of the table to
enrich the criteria by including additional specificity, to the extent
feasible. For example, we proposed to evaluate judgment at level 2 of
impairment based
[[Page 54698]]
solely on the criterion of ``Moderately impaired.'' We have changed the
criteria for level 2 to ``Moderately impaired judgment. For complex or
unfamiliar decisions, usually unable to identify, understand, and weigh
the alternatives, understand the consequences of choices, and make a
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Director (00/21)
reasonable decision, although has little difficulty with simple
decisions.''
Another example is visual spatial function, where the
proposed criteria for level 2 were ``Mildly impaired. May get lost in
unfamiliar surroundings, occasional difficulty recognizing faces.'' We
have revised the criteria for level 2 to ``Moderately impaired. Usually
gets lost in unfamiliar surroundings, has difficulty reading maps,
following directions, and judging distance. Has difficulty using
assistive devices such as GPS (global positioning system).''
The
changes not only add more specificity but help distinguish the
impairment levels from one another. In some cases, this added precision
allowed us to provide additional impairment levels so that now all
facets except social interaction, subjective symptoms, neurobehavioral
effects, and consciousness have all impairment levels of 0 through
total. In the proposed regulation, 6 of the 11 facets lacked one or
more of the 0 through 4 levels.
For the most part, medical examiners, not raters, will be
responsible for providing specific information about each facet that is
sufficient to allow raters to assign levels of evaluation.
For example,
the examiners will be specifically asked to state the level of severity
of impaired judgment. Examiners will be guided by an examination
worksheet (for dictated examination reports) or a computerized
examination template (for electronically generated examination reports)
for TBI, which will be developed in partnership with the Veterans
Health Administration to ensure that the examination guidance is
technically accurate and sufficiently descriptive to assist examiners
in considering all possible ratable criteria.
This is standard practice
for VA disability examinations for all conditions and assures that
sufficient information is provided to raters so that they can make
accurate and consistent decisions nationwide.
We have also revised the titles of some of the facets for more
clarity, specificity, and precision.
We changed the title of the
``Memory, attention, concentration'' facet by adding ``executive
functions'' to the title, since these 4 functions are most commonly
affected in cognitive impairment. We revised the title of the
``Appropriate response in social situations'' facet to ``Social
interaction,'' the ``Visual-spatial function'' facet to ``Visual
spatial orientation,'' and the ``Speech and language disorders'' facet
to ``Communication.''
We also revised the title of the ``Other
neurobehavioral effects'' facet to ``Neurobehavioral effects''.
Comments Concerning Accuracy of Functional Impairment and Vocational
Incapacity in the Table
One commenter stated that many of the criteria in the table do not
appear to accurately reflect the degree of functional impairment and
vocational incapacity that should be expected from such loss.
The
commenter stated that several criteria that are assigned a score of 3
or 4 should be individually rated at 100 percent for unemployability
without reference to other criteria, including a veteran limited to
working in a sheltered workshop or unable to work or attend school, a
veteran needing assistance with Activities of Daily Living (ADLs), a
veteran who often requires supervision for safety, etc.
We agree with the commenter and have revised the table in several
ways. We changed the facet levels from the proposed 0 through 4 to
levels of 0 through 3, with an additional higher level called
``total,'' representing a 100-percent evaluation, included in most
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facets.
We removed altogether the 3 facets for work or school, ADLs,
and supervision for safety. We have determined that the effects on work
or school are reflected in the disabling effects of all of the other
facets and therefore work or school is not needed as a separate facet.
The facets for ADLs and supervision for safety represent impairments
that would be compensated by means of special monthly compensation
(SMC), a special monthly monetary payment that is made under certain
statutorily prescribed circumstances. SMC is provided to a veteran who
is receiving disability compensation and who needs the regular
assistance of another person in attending to the ordinary activities of
daily living or to avoid the ordinary hazards of the daily environment.
There are many residuals of TBI, including cognitive impairment,
neurobehavioral effects, problems with visual spatial orientation, and
impaired consciousness that may meet the criteria for entitlement to
SMC, depending on their severity.
If a veteran has such residuals of
TBI, the veteran would be entitled to both SMC and disability
compensation when the need for regular assistance of another person in
attending to the ordinary activities of daily living or to avoid the
ordinary hazards of the daily environment is present. However, the need
for assistance with ADLs and the need for supervision with safety are
impairments that in and of themselves qualify an individual for SMC
regardless of their severity. If these impairments were considered in
assigning a percentage disability rating and in determining entitlement
to SMC, this would be compensating twice for the same manifestations of
a disability, which would constitute pyramiding, and this is
prohibited, per 38 CFR 4.14 (Avoidance of pyramiding).
Several commenters said that the criteria for consideration of SMC
need to be explicitly delineated.
This is not necessary, however,
because the SMC regulations potentially apply in all cases and
therefore need not be repeated in every rating schedule provision. We
have, however, provided a direction under diagnostic code 8045 to
consider SMC, and it states:
``Consider the need for special monthly
compensation for such problems as loss of use of an extremity, certain
sensory impairments, erectile dysfunction, the need for aid and
attendance (including for protection from hazards or dangers incident
to the daily environment due to cognitive impairment), being
housebound, etc.''
This is similar to a reminder in the proposed
regulation to consider SMC.
Another commenter said that we should add to the regulation a
statement that raters must consider, in addition to SMC, total
disability ratings, total disability ratings based on unemployability,
total disability ratings for pension, and extra-schedular evaluations.
As with the criteria for SMC, these special provisions potentially
apply in all cases and therefore need not be repeated in every rating
schedule provision.
Moreover, unlike the SMC criteria, which are
disability-specific and therefore relevant to the conditions listed in
the TBI rule, the criteria for these ratings are not specific to any
condition and therefore have no special applicability to TBI. We make
no change based on this comment.
The 7 facets that have levels that we have called ``total,'' and
the associated criteria, are: Under the memory, attention,
concentration, executive functions facet, objective evidence on testing
of severe impairment of memory, attention, concentration, or executive
functions resulting in severe functional impairment; under the judgment
facet, severely impaired judgment; for even routine and familiar
decisions, usually unable to identify, understand, and weigh the
Page 18.
Director (00/21)
alternatives, understand the consequences of choices, and make a
reasonable decision, for example, unable to determine appropriate
[[Page 54699]]
clothing for current weather conditions or judge when to avoid
dangerous situations or activities; under the orientation facet,
consistently disoriented to two or more of the four aspects (person,
time, place, situation) of orientation; under the motor activity facet,
motor activity severely decreased due to apraxia; under the visual
spatial orientation facet, severely impaired, may be unable to touch or
name own body parts when asked by the examiner, identify the relative
position in space of two different objects, or find the way from one
room to another in a familiar environment; under the communication
facet, complete inability to communicate either by spoken language,
written language, or both, or to comprehend spoken language, written
language, or both, unable to communicate basic needs; and under the new
facet titled consciousness (discussed below), for persistently altered
state of consciousness, such as vegetative state, minimally responsive
state, coma.
One commenter said that guidelines should be extended to include
individuals with persistent disturbances in consciousness (e.g.,
vegetative state, minimally conscious state). We agree with the
commenter and have added a new facet for consciousness, with only a
single severity level of ``total'' for persistently altered state of
consciousness, such as vegetative state, minimally responsive state, or
coma, since any level of disturbance of consciousness would be totally
disabling and warrant a 100-percent evaluation.
Other Comments on the Proposed Cognitive Impairment Criteria
One commenter said that the regulation should include more specific
guidelines to account for fluctuations in residuals. All claims are
rated based on all of the evidence of record, which will include
evidence of fluctuation in symptoms.
In addition, the rating can be
increased if the disability worsens in the future. We make no changes
based on this comment.
One commenter said that we should clearly state that cognitive
impairment refers strictly to mental function and not other aspects of
the disability. That is unnecessary, since the clinician will determine
which signs and symptoms are part of cognitive impairment and which are
not. We make no change based on this comment.
One commenter suggested separating out some of the findings of
facets that include more than one type of impairment, including the
memory, attention, concentration facet and the speech and language
disorders facet. The commenter felt the various elements of a single
facet should be separately evaluated. We disagree, as this already
complex regulation would become even more complex, to the point that
raters would find it extremely difficult to use. In addition, the
criteria in facets with multiple criteria are in related areas of
functional impairment and not all criteria need to be met for a given
level of evaluation. A 100-percent evaluation, for example, can be
assigned in some cases where a facet encompasses multiple criteria even
if only one of the impairments is assessed as total. We therefore make
no change based on this comment.
The same commenter stated that apraxia is uncommon after TBI and
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Director (00/21)
that it is unclear how an intact motor and sensory system (a
requirement for evaluating the motor activity facet) would be
determined. Apraxia is widely reported to be a component of TBI. For
example, the Veterans Health Initiative booklet titled ``Traumatic
Brain Injury,'' a publication of the Veterans Health Administration,
states on page 12 that apraxia is an effect of diffuse axonal injury of
the brain, which is a common occurrence in TBI, and an article titled
``Dementia Due to Head Trauma'' by Julia Frank, MD, Director of Medical
Student Education in Psychiatry, Associate Professor, Department of
Psychiatry and Behavioral Sciences, George Washington University School
of Medicine (available at http://www.emedicine.com/med/topic3152.htm),
states that testing for aphasia and apraxia are important in head
injury, along with evaluation of retention, short-term memory, and
abstraction.
Other types of motor disabilities such as weakness,
paralysis, sensory loss, etc., would be separately evaluated under
other diagnostic codes. A neurologic examination would be the basis of
a determination as to whether or not the motor and sensory systems are
intact. We make no change based on this comment.
Another commenter stated that apraxia is the inability to perform a
skilled movement, despite the person's desire or intent and ``physical
inability'' to perform the movement, and suggested that this
distinction be included as a note. Presumably the commenter meant
``ability'' rather than ``inability'' to perform the desired movement.
In both the proposed and final regulation, under the motor impairment
facet, we indicate that apraxia is the inability to perform previously
learned motor activities, despite normal motor function, and we believe
this is a sufficient description for rating purposes.
One commenter said that the levels of functioning for
neurobehavioral effects lack criteria for frequency and severity. It
would make for an extremely complex regulatio
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