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Tbi Dc 8045 - New Criteria Oct 2008

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For the reasons set out in the preamble, 38 CFR part 4, subpart B, is

amended as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

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

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

Subpart B--Disability Ratings

2. In Sec. 4.124a, in the table titled ``Organic Diseases of the

Central Nervous System,'' the entry for 8045 is revised in its entirety

and a new table titled ``Evaluation of Cognitive Impairment And Other

Residuals of TBI Not Otherwise Classified'' is added after the

``Organic Diseases of the Central Nervous System'' table, to read as

follows:

Sec. 4.124a Schedule of ratings--neurological conditions and

convulsive disorders.

* * * * *

Organic Diseases of the Central Nervous System

--------------------------------------------------------------------------

Rating

--------------------------------------------------------------------------

* * * * * * *

8045 Residuals of traumatic brain injury (TBI):

There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation.

Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, 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. Evaluate cognitive impairment under the table titled ``Evaluation of Cognitive Impairment and Other Residuals of TBI Not

Otherwise Classified.''

Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not

Page 33.

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they are part of cognitive impairment, under the subjective symptoms facet in the table titled ``Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.'' However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the ``Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified'' table.

Evaluate emotional/behavioral dysfunction under Sec. 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled ``Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.''

Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: 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.

The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI.

For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under Sec. 4.25 the evaluations for each separately rated condition.

The evaluation assigned based on the ``Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified'' table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.

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.

--------------------------------------------------------------------------

[[Page 54706]]

Evaluation of Cognitive Impairment and Subjective Symptoms

--------------------------------------------------------------------------

The table titled

``Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified'' contains 10 important facets of TBI related to cognitive impairment and subjective symptoms.

It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled ``total.'' However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than ``total,'' since any level of impaired consciousness would be

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totally disabling. Assign a 100-percent evaluation if ``total'' is the level of evaluation for one or more facets. If no facet is evaluated as ``total,'' assign the overall percentage evaluation 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, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet.

Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled ``Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified'' with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition.

Note (2): 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): ``Instrumental activities of daily living'' refers 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. These activities 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.

Note (4): 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. This classification does not affect the rating assigned under diagnostic code 8045

Note (5): A veteran whose residuals of TBI are rated under a version of Sec. 4.124a, diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his or her disability has worsened since the last review.

VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under diagnostic code 8045. 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; however, in no case will the award 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.

* * * * * * *

--------------------------------------------------------------------------

Evaluation of Cognitive Impairment and Other Residuals of TBI Not

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Otherwise Classified

------------------------------------------------------------------------

Facets of cognitive impairment

and other residuals of TBI not Level of Criteria

otherwise classified impairment

------------------------------------------------------------------------

Memory, attention, 0 No complaints of

concentration, executive impairment of memory,

functions. attention,

concentration, or

executive functions.

1 A complaint of mild

loss of memory (such

as having difficulty

following a

conversation,

recalling recent

conversations,

remembering names of

new acquaintances, or

finding words, or

often misplacing

items), attention,

concentration, or

executive functions,

but without objective

evidence on testing.

2 Objective evidence on

testing of mild

impairment of memory,

attention,

concentration, or

executive functions

resulting in mild

functional impairment.

3 Objective evidence on

testing of moderate

impairment of memory,

attention,

concentration, or

executive functions

resulting in moderate

functional impairment.

Total Objective evidence on

testing of severe

impairment of memory,

attention,

concentration, or

executive functions

resulting in severe

functional impairment.

Judgment....................... 0 Normal.

1 Mildly impaired

judgment. For complex

or unfamiliar

decisions,

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occasionally unable to

identify, understand,

and weigh the

alternatives,

understand the

consequences of

choices, and make a

reasonable decision.

2 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

reasonable decision,

although has little

difficulty with simple

decisions.

3 Moderately severely

impaired judgment. For

even routine and

familiar decisions,

occasionally unable to

identify, understand,

and weigh the

alternatives,

understand the

consequences of

choices, and make a

reasonable decision.

Total Severely impaired

judgment. For even

routine and familiar

decisions, usually

unable to identify,

understand, and weigh

the alternatives,

understand the

consequences of

choices, and make a

reasonable decision.

For example, unable to

determine appropriate

clothing for current

weather conditions or

judge when to avoid

dangerous situations

or activities.

[[Page 54707]]

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Social interaction............. 0 Social interaction is

routinely appropriate.

1 Social interaction is

occasionally

inappropriate.

2 Social interaction is

frequently

inappropriate.

3 Social interaction is

inappropriate most or

all of the time.

Orientation.................... 0 Always oriented to

person, time, place,

and situation.

1 Occasionally

disoriented to one of

the four aspects

(person, time, place,

situation) of

orientation.

2 Occasionally

disoriented to two of

the four aspects

(person, time, place,

situation) of

orientation or often

disoriented to one

aspect of orientation.

3 Often disoriented to

two or more of the

four aspects (person,

time, place,

situation) of

orientation.

Total Consistently

disoriented to two or

more of the four

aspects (person, time,

place, situation) of

orientation.

Motor activity (with intact 0 Motor activity normal.

motor and sensory system).

1 Motor activity normal

most of the time, but

mildly slowed at times

due to apraxia

(inability to perform

previously learned

motor activities,

despite normal motor

function).

2 Motor activity mildly

decreased or with

moderate slowing due

to apraxia.

3 Motor activity

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moderately decreased

due to apraxia.

Total Motor activity severely

decreased due to

apraxia.

Visual spatial orientation..... 0 Normal.

1 Mildly impaired.

Occasionally gets lost

in unfamiliar

surroundings, has

difficulty reading

maps or following

directions. Is able to

use assistive devices

such as GPS (global

positioning system).

2 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).

3 Moderately severely

impaired. Gets lost

even in familiar

surroundings, unable

to use assistive

devices such as GPS

(global positioning

system).

Total 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.

Subjective symptoms............ 0 Subjective symptoms

that do not interfere

with work;

instrumental

activities of daily

living; or work,

family, or other close

relationships.

Examples are: mild or

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occasional headaches,

mild anxiety.

1 Three or more

subjective symptoms

that mildly interfere

with work;

instrumental

activities of daily

living; or work,

family, or other close

relationships.

Examples of findings

that might be seen at

this level of

impairment are:

intermittent

dizziness, daily mild

to moderate headaches,

tinnitus, frequent

insomnia,

hypersensitivity to

sound,

hypersensitivity to

light.

2 Three or more

subjective symptoms

that moderately

interfere with work;

instrumental

activities of daily

living; or work,

family, or other close

relationships.

Examples of findings

that might be seen at

this level of

impairment are: marked

fatigability, blurred

or double vision,

headaches requiring

rest periods during

most days.

Neurobehavioral effects........ 0 One or more

neurobehavioral

effects that do not

interfere with

workplace interaction

or social interaction.

Examples of

neurobehavioral

effects are:

Irritability,

impulsivity,

unpredictability, lack

of motivation, verbal

aggression, physical

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aggression,

belligerence, apathy,

lack of empathy,

moodiness, lack of

cooperation,

inflexibility, and

impaired awareness of

disability. Any of

these effects may

range from slight to

severe, although

verbal and physical

aggression are likely

to have a more serious

impact on workplace

interaction and social

interaction than some

of the other effects.

1 One or more

neurobehavioral

effects that

occasionally interfere

with workplace

interaction, social

interaction, or both

but do not preclude

them.

2 One or more

neurobehavioral

effects that

frequently interfere

with workplace

interaction, social

interaction, or both

but do not preclude

them.

3 One or more

neurobehavioral

effects that interfere

with or preclude

workplace interaction,

social interaction, or

both on most days or

that occasionally

require supervision

for safety of self or

others.

Communication.................. 0 Able to communicate by

spoken and written

language (expressive

communication), and to

comprehend spoken and

written language.

1 Comprehension or

expression, or both,

of either spoken

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language or written

language is only

occasionally impaired.

Can communicate

complex ideas.

2 Inability to

communicate either by

spoken language,

written language, or

both, more than

occasionally but less

than half of the time,

or to comprehend

spoken language,

written language, or

both, more than

occasionally but less

than half of the time.

Can generally

communicate complex

ideas.

3 Inability to

communicate either by

spoken language,

written language, or

both, at least half of

the time but not all

of the time, or to

comprehend spoken

language, written

language, or both, at

least half of the time

but not all of the

time. May rely on

gestures or other

alternative modes of

communication. Able to

communicate basic

needs.

Total 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.

[[Page 54708]]

Consciousness.................. Total Persistently altered

state of

consciousness, such as

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vegetative state,

minimally responsive

state, coma.

------------------------------------------------------------------------

* * * * *

3. In Appendix A to Part 4, Sec. 4.124a, add diagnostic code 8045 in

numerical order to the table to read as follows:

Appendix A to Part 4--Table of Amendments and Effective Dates Since

1946

* * * * *

------------------------------------------------------------------------

Diagnostic

Sec. code No.

------------------------------------------------------------------------

* * * * *

4.124a...................... 8045 Criterion and evaluation

October 23, 2008.

* * * * *

------------------------------------------------------------------------

* * * * *

4. In Appendix B to Part 4, diagnostic code 8045 is revised to read as

follows:

Appendix B to Part 4--Numerical Index of Disabilities

* * * * *

------------------------------------------------------------------------

Diagnostic code No.

------------------------------------------------------------------------

* * * * *

8045...................................... Residuals of traumatic brain

injury (TBI).

* * * * *

------------------------------------------------------------------------

* * * * *

5. In Appendix C to Part 4 under the heading for ``Brain'' remove

``Disease due to trauma'' and its diagnostic code ``8045''; and add in

alphabetical order a new heading ``Traumatic brain injury residuals''

and its diagnostic code ``8045''.

Page 43.

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[FR Doc. E8-22083 Filed 9-22-08; 8:45 am]

BILLING CODE 8320-01-P

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