ptsd Schedule For Rating Disabilities: Traumatic Brain Injury (tbi)

[Wings]

x

x

x

Comments must be received on or before February 4, 2008! ~Wings

[Federal Register: January 3, 2008 (Volume 73, Number 2)]

[Proposed Rules]

[Page 432-438]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr03ja08-14]

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

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: Proposed rule.

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

SUMMARY: This document proposes to amend the Department of Veterans

Affairs (VA) Schedule for Rating Disabilities by revising that portion

of the Schedule that addresses neurological conditions and convulsive

disorders, in order to provide detailed and updated criteria for

evaluating residuals of traumatic brain injury (TBI).

DATES: Comments must be received on or before February 4, 2008.

ADDRESSES: Written comments may be submitted through http://

www.Regulations.gov; by mail or hand-delivery to the Director,

Regulations Management (00REG), Department of Veterans Affairs, 810

Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202)

273-9026. Comments should indicate that they are submitted in response

to RIN 2900-AM75--``Schedule for Rating Disabilities; Evaluation of

Residuals of Traumatic Brain Injury (TBI).'' 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

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.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Regulations Staff

(211D), Compensation and Pension Service, Veterans Benefits

Administration, Department of Veterans Affairs, 810 Vermont Avenue,

NW., Washington, DC 20420, (727) 319-5847. (This is not a toll-free

number.)

SUPPLEMENTARY INFORMATION: This document proposes to amend the

Department of Veterans Affairs (VA) Schedule for Rating Disabilities

(38 CFR part 4) by revising the material under diagnostic code 8045,

Brain disease due to trauma, in 38 CFR 4.124a (neurological conditions

and convulsive disorders). TBI has been called a signature injury of

the conflict in Iraq, and VA is seeing a statistically larger number of

veterans of the Iraq and Afghanistan conflicts with residuals of TBI

than has been seen in previous conflicts. In addition, the effects of

injuries stemming from blasts resulting from roadside explosions of

improvised explosive devices, which have been common sources of injury

in these conflicts, appear to be somewhat different from the effects of

brain trauma seen from other sources of injury. VA proposes to amend

the criteria for rating residuals of TBI to update them in light of

current knowledge of the condition.

We propose changing the title of diagnostic code 8045 from ``Brain

disease due to trauma'' to ``Residuals of traumatic brain injury

(TBI),'' which reflects modern terminology for this condition.

TBI is an injury to the brain from an external force that results

in immediate effects such as loss or alteration of consciousness,

amnesia, and sometimes neurological impairments. 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. TBI is classified as mild,

moderate, or severe at, or close to, the time of the original injury,

and while this classification will often

[[Page 433]]

correspond to the future level of functional impairment, that will not

always be the case. 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. Therefore, it does not

affect the rating assigned under diagnostic code 8045. We propose to

include the information that ``mild,'' ``moderate,'' and ``severe''

refer to a classification of TBI at, or close to, the time of injury

rather than to the current level of functioning in the regulation

itself to make it clear to raters that these designations that may

appear in medical records refer only to the initial evaluation and not

to current functioning.

We propose to provide guidance for the evaluation of the most

common, but not all possible, residuals of TBI. These residuals fall

into three main areas of dysfunction: Cognitive, emotional/behavioral,

and physical. In addition, a cluster of largely subjective symptoms

(symptoms cluster) falling into these categories may develop following

TBI.

This proposed rule provides several sets of guidelines and criteria

for the evaluation of TBI residuals because of the breadth of the

possible effects. These include guidance on evaluating physical

(neurologic) residuals, criteria for evaluating cognitive impairment,

criteria for evaluating the symptoms cluster that sometimes follows TBI

(sometimes referred to as post-concussion syndrome (PCS)), and guidance

on evaluating emotional/behavioral dysfunction.

Evaluating Physical Dysfunction

In the current schedule, under diagnostic code 8045, purely

neurological disabilities following brain trauma, such as hemiplegia,

epileptiform seizures, facial nerve paralysis, etc., are rated under

the diagnostic codes dealing with the specific disabilities, using a

hyphenated code to indicate the rating criteria used. We propose

deleting the discussion of the use of hyphenated codes because that use

is explained in 38 CFR 4.27, ``Use of diagnostic code numbers,'' and

therefore need not be repeated here.

When the brain is injured, almost any function of the body can be

affected, depending on the location, type, and severity of the injury.

We propose to provide 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. We propose to rate each

condition separately evaluated 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 would be evaluated under the most

appropriate diagnostic code.

We are also proposing to direct raters to consider special monthly

compensation for such problems as loss of use of an extremity, certain

sensory impairments, bowel and bladder impairments, erectile

dysfunction, the need for aid and attendance (including when assistance

or supervision is needed on the basis of cognitive impairment), and

being housebound.

Evaluating Emotional/Behavioral Dysfunction and Comorbid Mental

Disorders

Comorbid (coexisting with another medical disorder) mental

disorders are common with TBI. Most common is depression, which may

occur in up to 60 percent of those with TBI, but anxiety and post-

traumatic stress disorder (PTSD) also commonly occur. We propose

requiring comorbid mental disorders to be evaluated under 38 CFR 4.130

(Schedule of ratings--mental disorders). Some emotional/behavioral

symptoms that do not reach the level of a mental disorder, as defined

in DSM-IV (the 4th edition of the Diagnostic and Statistical Manual of

Mental Disorders, which is published by the American Psychiatric

Association), would be evaluated under the criteria provided for the

evaluation of cognitive impairment or for the evaluation of the

symptoms cluster, as discussed below, because the symptoms of cognitive

impairment and the symptoms cluster encompass many emotional/behavioral

symptoms (Department of Veterans Affairs, Veterans Health Initiative,

``Traumatic Brain Injury,'' 83-85 (Rodney Vanderploeg, Ph.D., ed.,

2003)).

Evaluating the Symptoms Cluster Due to TBI

Following TBI, a cluster of symptoms (or syndrome) is commonly

seen. The symptoms fall into emotional/behavioral, cognitive, and

physical areas, and may have both neurological and psychological

components, but there are no objective neurologic findings or

abnormalities on routine imaging. While in the majority of affected

people these symptoms resolve in about 3 months, in a small percentage,

they become permanent. In the medical literature, this symptoms cluster

is sometimes referred to as post-concussion syndrome (although loss of

consciousness at the time of the original injury is not a requirement),

or simply as residuals of mild TBI (Veterans Health Initiative,

``Traumatic Brain Injury,'' 23-27).

The symptoms cluster includes such symptoms as headache (migraine

or tension-type), dizziness or vertigo, fatigue, malaise, sleep

disturbance, cognitive impairment, difficulty concentrating, delayed

reaction time, behavioral changes (such as irritability, restlessness,

apathy, inappropriate social behavior, aggression, impulsivity),

emotional changes (such as mood swings, anxiety, depression), tinnitus

or hypersensitivity to sound, hypersensitivity to light, blurred

vision, double vision, decreased sense of smell and taste, and

difficulty hearing in noisy situations or with competing sounds in the

absence of objective hearing loss.

In the current schedule, under diagnostic code 8045, purely

subjective complaints such as headache, dizziness, insomnia, etc.,

recognized as symptomatic of brain trauma, are rated 10 percent and no

more under diagnostic code 9304. Furthermore, this 10-percent rating is

not combined with any other rating for a disability due to brain

trauma, and ratings in excess of 10 percent for brain disease due to

trauma under diagnostic code 9304 are not assignable in the absence of

a diagnosis of multi-infarct dementia associated with brain trauma.

This guidance about evaluating subjective complaints after brain

trauma is at least 45 years old and seems to reflect views that were

once prevalent, that these symptoms might be due to hysteria or

malingering. In recent years, abnormalities of the brain following mild

TBI have been reported on the basis of the following types of special

studies: Neuropathologic, neurophysiologic, neuroimaging, and

neuropsychologic. Current medical thinking is that these symptoms may

be due to subtle brain pathology following trauma that was undetectable

on previously available studies. These symptoms may be more than 10-

percent disabling. Therefore, we propose replacing the current guidance

concerning the evaluation of subjective complaints after brain trauma

under diagnostic code 8045 with a set of

[[Page 434]]

criteria to evaluate this symptoms cluster, with evaluation levels of

20, 30, and 40 percent.

We propose to require that for evaluation under the new criteria,

at least three of the symptoms listed above be present. If there are

nine or more of the listed symptoms, 40 percent would be assigned; if

there are five to eight of the listed symptoms, 30 percent would be

assigned; and if there are three or four of the listed symptoms, 20

percent would be assigned. These levels of evaluation are consistent

with the range of disability that may result from these symptoms and

would promote consistent evaluations.

If, on the other hand, there is a definite diagnosis that includes

one or more of these symptoms, such as migraine (which is common after

TBI) or Meniere's syndrome (which has symptoms of tinnitus, vertigo,

fluctuating hearing loss, and a sense of fullness in the ear), it would

be separately evaluated. If there are at least 3 remaining symptoms,

they would be evaluated under the criteria for evaluating the symptoms

cluster.

Evaluating Cognitive Impairment

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.

Cognitive impairment of varying degrees is most common and most severe

following moderate or severe TBI. Therefore, primarily those who

experienced a moderate or severe TBI would require evaluation under

these criteria. However, an individual with mild TBI may also have

these conditions.

The effects of cognitive impairment are numerous and far reaching

with profound effects on many areas of functioning: mental, physical,

behavioral, and emotional. Some of the major functional effects of

cognitive impairment can be found at http://grants.nih.gov/grants/

guide/pa-files/PA-97-050.html, http://web.uccs.edu/dsimons/

cognitive%20impairment%20handouts.pdf, and http://www.guideline.gov/

summary/summary.aspx?ss=15&doc--id=3508&nbr=2734. We propose to provide

criteria that take into account 11 of the common major effects of

cognitive impairment. These effects or facets of cognitive impairment

are work or school; memory, attention, concentration; activities of

daily living (ADLs); judgment; supervision for safety; appropriate

response in social situations; orientation; motor activity (with intact

motor and sensory system); visual-spatial function; other

neurobehavioral effects; and speech and language disorders.

There is a wide variation in the occurrence and severity of

cognitive impairments. Some individuals may have impairments in some

facets but not others, some individuals may have impairments in all

facets, and some functions affected by cognitive impairment may be

impaired more severely than others in a given individual (for example,

one may have severe speech and other communication problems but no

problem with activities of daily living, while another may have no

problem with speech, but considerable difficulty with ADLs and other

facets). Using a standard set of evaluation criteria by assigning a

specific level of evaluation for a standard set of signs or symptoms

would disadvantage veterans who do not have the particular signs and

symptoms in the standard set chosen, but who have equally disabling

signs and symptoms of cognitive impairment. On the other hand, it would

be too burdensome to include criteria for all possible signs and

symptoms of cognitive impairment. Therefore, we propose using the table

we have developed for evaluating cognitive impairment that includes the

11 most important types or facets of impairment, titled ``EVALUATION OF

COGNITIVE IMPAIRMENT UNDER DIAGNOSTIC CODE 8045.''

In addition, we propose providing separate criteria, representing

logical increments of functioning for each facet, for assessing the

severity of each of these 11 common facets of impairment following TBI.

Scores of severity for each facet would range from 0 to 4, although not

all facets would have all 5 levels of severity. For example, for ADLs,

a score of 0 would be assigned if the individual is able to perform all

activities of daily living without assistance. However, if some

assistance is needed for ADLs, even part of the time, a level of 1 or 2

would be too low for such a substantial impairment. Therefore, if the

individual requires assistance with activities of daily living some of

the time (but less than half of the time), a score of 3 would be

assigned, and if the individual requires assistance with activities of

daily living most or all of the time, a score of 4 would be assigned.

For the ``judgment'' facet, a score of 0 would be assigned for

``Normal.'' A score of 1 would be assigned for ``Mildly impaired.'' A

score of 2 would be assigned for ``Moderately impaired.'' A score of 4

would be assigned for ``Severely impaired.'' Note that there would be

no score of 3 for judgment.

The rater would assign the appropriate score from 0 to 4 for each

facet, based on the information about the severity of impairment for

each facet that has been provided (on the disability examination

report). The rater would then add only the 3 highest scores and divide

that sum by 3 to determine the overall score for cognitive impairment,

that is, 0, 1, 2, 3, or 4. Numbers between whole numbers would be

rounded to the nearest whole number. For example, scores of 1.0, 1.1,

1.2, 1.3, and 1.4 would all be rounded to 1, while scores of 1.5, 1.6,

1.7, 1.8, and 1.9 would all be rounded to 2. The percentage evaluations

available for cognitive impairment would be 0, 10, 40, 70, and 100

percent. A score of 1 would equate to an evaluation of 10 percent, a

score of 2, to 40 percent, a score of 3, to 70 percent, and a score of

4, to 100 percent. As in all cases, per 38 CFR 4.31 (0 percent

evaluations), an evaluation of 0 percent would be assigned if the score

is below 1, after rounding.

Using the three most impaired facets of functioning balances the

problems of using only one or two facets, which would result in a

limited view of overall functioning, and using all 11 facets, which

would cause the better areas of functioning to dilute the more severely

impaired ones, and would result in an impression of better overall

functioning than is actually present.

The proposed criteria are long and complex. To assist the rater, we

propose providing the 11 facets, the levels of impairment, and the

criteria for each level in the table, ``Evaluation of Cognitive

Impairment Under Diagnostic Code 8045.'' Because of the length of the

table, we are not repeating it in this summary.

Note 1--Cognitive Impairment and Comorbid Mental Disorder

We also propose adding two notes under the cognitive impairment

criteria for further clarification. Note 1 would explain the

evaluation process when both cognitive impairment and one or more

comorbid mental disorders are present, in which case there may be an

overlap of signs and symptoms. In such cases, two evaluations, one

under the

[[Page 435]]

cognitive impairment criteria and another under the General Rating

Formula for Mental Disorders, based on the same findings would not be

assigned. If the signs and symptoms of the mental disorder(s) and of

cognitive impairment cannot be clearly separated, a single evaluation

either under the General Rating Formula for Mental Disorders or under

the evaluation criteria for cognitive impairment, whichever provides

the better assessment of overall impaired functioning due to both

conditions, would be assigned. If the signs and symptoms are clearly

separable, separate evaluations for the mental disorder(s) and for

cognitive impairment would be assigned.

Note 2--Prohibition of Evaluation Under Cognitive Impairment

Criteria and Under the Symptoms Cluster

Note 2 would point out that cognitive impairment may not

be evaluated both under the cognitive impairment criteria and as part

of the symptoms cluster because this would constitute pyramiding. In

addition, cognitive impairment encompasses many more symptoms than are

specifically listed in the rating table for evaluation of cognitive

impairment, including some of the subjective symptoms in the symptoms

cluster. Therefore, if evaluation is made under the cognitive

impairment criteria, no evaluation would be assigned for the symptoms

cluster. When cognitive impairment is present, it would be evaluated

either as part of the symptoms cluster, if cognitive impairment and at

least 2 of the additional cluster symptoms listed are present, or under

the cognitive impairment criteria, whichever method of evaluation is

more advantageous to the veteran.

Note 3--TBI That Is Unclassified as to Severity

We propose adding a third note to direct raters to evaluate under

the set of criteria that is most in accord with the reported residuals,

regardless of whether a classification of the severity of TBI (mild,

moderate, or severe) determined at, or close to, the time of injury is

available. In other words, if subjective symptoms are the primary

residuals, evaluation would be made under the criteria for evaluating

the symptoms cluster. If cognitive impairment alone is diagnosed,

evaluation would be made instead under the criteria for evaluating

cognitive impairment. In any case, physical (neurologic) residuals

would be evaluated as directed under diagnostic code 8045, and comorbid

mental disorders would be evaluated as directed under Sec. 4.130.

Applicability Date

VA proposes to make the provisions of this rule applicable to all

applications for benefits received by VA on or after the effective date

of this rule. A veteran whose residuals of TBI are rated under a prior

version of Sec. 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. VA would review that

veteran's disability rating to determine whether the veteran may be

entitled to a higher disability rating under the provisions established

by this rulemaking. The effective date of any award of an increase in

disability compensation based on the new criteria would be no earlier

than the effective date of the new criteria. The effective date of an

award would be decided under the current regulations regarding

effective dates for increases in disability compensation, 38 CFR 3.400,

etc. and 38 CFR 3.114, if applicable, would be considered. We propose

adding this information under diagnostic code 8045 as Note 4

to insure veterans are fully notified of the availability of the

review.

We propose establishing this process for veterans potentially

affected by this rulemaking in order to ensure that veterans,

especially those wounded during Operation Enduring Freedom or Operation

Iraqi Freedom, are compensated as fully as possible for their wounds.

Benefits Costs

Two groups of veterans may be affected by this regulation change.

The first group is those veterans who will come on the rolls in the

future. VA also anticipates some current TBI beneficiaries will reopen

their claims. Future caseload estimates are based on historical trends

of service connected accessions related to TBI by degree of disability.

VA identified the potential population of reopened claims based on

current beneficiaries on the rolls with a combined evaluation that

included a rating for TBI. Average monthly payments for each disability

rating were applied to calculate the benefits cost. The assumptions

used to generate the affected population are based on historical

caseload trends and are not based on DoD information, nor should they

be construed to imply any future DoD policy decisions.

VA estimates the total caseload affected for years 2008-2017 as

follows: 2,846, 3,546, 3,746, 3,946, 4,146, 4,343, 4,546, 4,746, 4,946,

and 5,146. Benefits costs ($ in millions) associated with the caseload

for the same time period are as follows: $3.6, $10.1, $10.1, $11.1,

$12.1, $13.1, $14.2, $15.3, $16.5, and $17.7 for a 10-year total of

$123.8 million over 10 years.

Paperwork Reduction Act

This document contains no provisions constituting a collection of

information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-

3521).

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed rule would not

have a significant economic impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act, 5

U.S.C. 601-612. This proposed rule would govern disability ratings in

individual cases and would not directly affect small entities.

Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is

exempt from the initial and final regulatory flexibility analysis

requirements of sections 603 and 604.

Executive Order 12866--Regulatory Planning and Review

Executive Order 12866 directs agencies to assess all costs and

benefits of available regulatory alternatives and, when regulation is

necessary, to select regulatory approaches that maximize net benefits

(including potential economic, environmental, public health and safety,

and other advantages; distributive impacts; and equity). The Executive

Order classifies a ``significant regulatory action,'' requiring review

by the Office of Management and Budget (OMB), as any regulatory action

that is likely to result in a rule that may: (1) Have an annual effect

on the economy of $100 million or more or adversely affect in a

material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, public health or safety, or State,

local, or tribal governments or communities; (2) create a serious

inconsistency or otherwise interfere with an action taken or planned by

another agency; (3) materially alter the budgetary impact of

entitlements, grants, user fees, or loan programs or the rights and

obligations of recipients thereof; or (4) raise novel legal or policy

issues arising out of legal mandates, the President's priorities, or

the principles set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy

implications of this proposed rule have been examined, and it has been

determined to be a significant regulatory action under Executive Order

12866

[[Page 436]]

because it is likely to result in a rule that may raise novel legal or

policy issues arising out of legal mandates, the President's

priorities, or principles set forth in the Executive Order.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.

1532, that agencies prepare an assessment of anticipated costs and

benefits before issuing any rule that may result in the expenditure by

State, local, and tribal governments, in the aggregate, or by the

private sector, of $100 million or more (adjusted annually for

inflation) in any 1 year. This proposed rule would have no such effect

on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

The Catalog of Federal Domestic Assistance program numbers and

titles for this proposal are 64.104, Pension for Non-Service-Connected

Disability for Veterans, and 64.109, Veterans Compensation for Service-

Connected Disability.

List of Subjects in 38 CFR Part 4

Disability benefits, Pensions, Veterans.

Approved: November 16, 2007.

Gordon H. Mansfield,

Acting Secretary of Veterans Affairs.

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

is proposed to be 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 entitled, ``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

Under Diagnostic Code 8045'' 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 require evaluation: Cognitive, emotional/

behavioral, and physical effects. In addition, a cluster of

largely subjective symptoms, which may include Cognitive,

emotional/behavioral, and physical symptoms, may develop

that may also require evaluation. ``Mild,'' ``moderate,''

and ``severe'' refer to a classification of TBI 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.............

Evaluate cognitive impairment under the criteria in the

table titled ``Evaluation Of Cognitive Impairment Under

Diagnostic Code 8045.''

Evaluate the symptoms cluster that sometimes follows TBI

under the set of criteria for evaluating the symptoms

cluster due to TBI provided as part of the rating criteria

under diagnostic code 8045.................................

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 symptoms under the criteria

in the table titled ``Evaluation Of Cognitive Impairment

Under Diagnostic Code 8045'' or under the criteria for

evaluation of the symptoms cluster due to TBI..............

Evaluate physical (neurological) dysfunction based on the

following list, under an appropriate diagnostic code, as

applicable.................................................

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

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.

These lists do 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 the evaluations for each

separately rated condition under Sec. 4.25. Consider special monthly

compensation for such problems as loss of use of an extremity, certain

sensory impairments, bowel and bladder impairments, erectile

dysfunction, the need for aid and attendance (including when assistance

or supervision is needed on the basis of cognitive impairment), and

being housebound.

Evaluation of Symptoms Cluster due to TBI

A cluster of symptoms, physical, cognitive, and emotional/

behavioral, often occurs following TBI. There are usually no objective

neurologic findings or abnormalities on routine imaging. While in the

majority of affected people this cluster of symptoms resolves in about

3 months, in a small percentage, the symptoms become permanent. In the

medical literature, this symptoms cluster may be referred to as post-

concussion syndrome, or simply as residuals of mild TBI. For evaluating

such residuals of TBI under the criteria below, at least three of the

following symptoms must be present: Headache (migraine or tension-

type), dizziness or vertigo, fatigue, malaise, sleep disturbance,

cognitive impairment, difficulty concentrating, delayed reaction time,

behavioral changes (such as irritability, restlessness, apathy,

inappropriate social behavior, aggression, impulsivity), emotional

changes (such as mood swings, anxiety, depression), tinnitus or

hypersensitivity to sound, hypersensitivity to light, blurred vision,

double vision, decreased sense of smell and taste, and difficulty

hearing in noisy situations or with competing sounds in the absence of

objective hearing loss.

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

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

If there is a definite diagnosis of a condition that includes

one or more of these symptoms, such as migraine headache or

Meniere's disease, evaluate that condition separately under the

appropriate diagnostic code and evaluate the remaining symptoms

based on the following criteria, as long as there are at least

three symptoms remaining.

With nine or more of the listed symptoms.................... 40

With five to eight of the listed symptoms................... 30

[[Page 437]]

With three or four of the listed symptoms................... 20

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

Evaluation of Cognitive Impairment

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.

These types of losses can have profound effects on many areas of

functioning: mental, physical, behavioral, and emotional. Cognitive

impairment of varying degrees is common after TBI.

The table titled ``EVALUATION OF COGNITIVE IMPAIRMENT UNDER DIAGNOSTIC

CODE 8045'' contains 11 common facets of cognitive impairment with

levels of impairment for each ranging from 0 to 4, with 4 representing

the most severe level. Not all facets have criteria for every level

from 0 to 4. Add the 3 highest numbers from 0 to 4 assigned to facets

of cognitive impairment, divide that sum by 3, and round to the nearest

whole number (for example, 1.0, 1.1, 1.2, 1.3, and 1.4 are rounded to

1, while 1.5, 1.6, 1.7, 1.8, and 1.9 are rounded to 2). Once the whole

number from 0 to 4 has been calculated, assign the percentage

evaluation as follows: 0 = 0%; 1 = 10%; 2 = 40%; 3 = 70%; and 4 = 100%.

Note (1): When both cognitive impairment and one or more

comorbid mental disorders are present, there may be an overlap of

signs and symptoms. In such cases, do not assign two evaluations,

one under the cognitive impairment criteria and another under the

General Rating Formula for Mental Disorders, based on the same

findings. If the signs and symptoms of the mental disorder(s) and of

cognitive impairment cannot be clearly separated, assign a single

evaluation either under the General Rating Formula for Mental

Disorders or under the evaluation criteria for cognitive impairment,

whichever provides the better assessment of overall impaired

functioning due to both conditions. However, if the signs and

symptoms are clearly separable, assign separate evaluations for the

mental disorder(s) and for cognitive impairment.

Note (2): Do not assign separate evaluations for cognitive

impairment and for the symptoms cluster due to TBI; rather, assign

one or the other, whichever results in a higher evaluation. However,

separate evaluations may be assigned for cognitive impairment or for

the symptoms cluster, and for other physical (neurological)

abnormalities or comorbid mental disorders if the same signs and

symptoms are not used to support more than one evaluation.

Note (3): Whether or not a classification of the severity of TBI

(mild, moderate, or severe) determined at, or close to, the time of

injury is available, evaluate under the set of criteria that is most

in accord with the reported residuals. If a cluster of subjective

symptoms is the primary residual, evaluate under the criteria for

symptoms cluster due to TBI. If cognitive impairment is diagnosed,

evaluate under the criteria for cognitive impairment if it is the

only residual, or under either the criteria for cognitive impairment

or under the symptoms cluster if there are at least 2 other residual

subjective symptoms. In any case, evaluate physical (neurologic)

residuals and comorbid mental disorders as directed under diagnostic

code 8045.

Note (4): A veteran whose residuals of TBI are rated under a

version of Sec. 4.124a, diagnostic code 8045, in effect prior to

[insert date 30 days after date of publication of the final rule in

the Federal Register], can 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 rulemaking 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 [insert date 30 days

after date of publication of the final rule in the Federal

Register]. For the purposes of determining the effective date of an

increased rating awarded as a result of such review, VA will apply

the provisions of 38 CFR 3.114, if applicable.

* * * * *

Evaluation of Cognitive Impairment Under Diagnostic Code 8045

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

Facets of cognitive Level of

impairment impairment Criteria

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

Work or school.............. 0 Able to work or attend school

at a level equivalent to that

prior to injury with no

special accommodation, and

without difficulty.

1 Able to work or attend school

at a level equivalent to that

prior to injury with no

special accommodation, and

with only minor difficulty,

mainly at times of increased

duties or demands.

2 Able to work or attend school,

but requires some

accommodation (for example,

may need special environment,

special equipment, or closer

supervision).

3 Able to work or attend school,

but only in a situation with

decreased demands compared to

pre-injury employment or

school or in a sheltered

workplace.

4 Unable to work or attend

school.

Memory, attention, 0 No complaints of memory loss

concentration. and no objective evidence of

memory loss.

1 Mildly impaired. Any

combination of memory loss

(although memory tests on

exam are normal), occasional

difficulty following a

conversation, occasional

difficulty recalling recent

conversations, occasional

difficulty remembering names

of new acquaintances,

occasional difficulty finding

words, misplaces items.

2 Any combination of mild

impairment of memory (which

must be objectively shown),

mildly impaired attention,

mildly impaired

concentration, difficulty

following complex

instructions, easily

distractible, poor retention

of written material,

difficulty multi-tasking,

problems planning, problems

organizing, difficulty

completing tasks.

3 Any combination of moderately

impaired memory, attention,

concentration, or executive

functions.

4 Any combination of severely

impaired memory, attention,

concentration, or executive

functions.

ADLs (activities of daily 0 Able to perform all activities

living). of daily living without

assistance.

3 Requires assistance with

activities of daily living

some of the time (but less

than half of the time).

4 Requires assistance with

activities of daily living

most or all of the time.

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

[[Page 438]]

1 Mildly impaired.

2 Moderately impaired.

4 Severely impaired.

Supervision for safety...... 0 Does not need supervision for

safety, even in risky

situations.

2 Rarely or occasionally needs

supervision for safety, but

only for risky activities.

3 Often requires supervision for

safety (but less than half of

the time).

4 Requires supervision for

safety most or all of the

time.

Appropriate response in 0 Appropriate response in social

social situations. situations always.

1 Appropriate response in social

situations almost always.

2 Inappropriate response in

social situations much of the

time.

3 Inappropriate response in

social situations most or all

of the time.

Orientation................. 0 Always oriented to person,

time, and place.

2 Oriented to person and time;

occasional or rare

disorientation to place.

3 Sometimes disoriented to time

or place.

4 Often or always disoriented,

especially to time or place.

Motor activity (with intact 0 Motor activity normal.

motor and sensory system).

1 Motor activity normal most of

the time. May be slowed at

times.

2 Motor activity mildly

decreased due to apraxia

(inability to perform

previously learned motor

activities, despite normal

motor function), or with

moderate slowing.

3 Motor activity moderately

decreased due to apraxia.

4 Motor activity severely

decreased due to apraxia.

Visual-spatial function..... 0 Normal.

1 Rare indication of slight

impairment, such as getting

lost in unfamiliar

surroundings.

2 Mildly impaired. May get lost

in unfamiliar surroundings,

occasional difficulty

recognizing faces.

3 Moderately impaired. May get

lost even in familiar

surroundings, frequent

difficulty recognizing faces.

4 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, copy

sentences, read maps, or find

way from one room to another.

Other neurobehavioral .......... Symptoms: Physically

effects. aggressive, verbally

aggressive, impulsive,

uninhibited, sleep problems,

apathetic, inflexible,

fatigability, mood swings,

lack of motivation, impaired

awareness of disability.

0 None of these effects.

1 One or two of these effects.

2 Three to five of these

effects.

3 Six or more of these effects.

Speech and language 0 Able to communicate by spoken

disorders. and written language, and to

comprehend spoken and written

language.

1 Impaired articulation for some

words, but speech is

understandable, or

comprehension of either

spoken language, written

language, or both, is only

occasionally impaired.

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.

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.

4 Complete inability to

communicate either by spoken

language, written language,

or both, or to comprehend

spoken language, written

language, or both.

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

* * * * *

[FR Doc. E7-25522 Filed 1-2-08; 8:45 am]

BILLING CODE 8320-01-P

[Berta]

WOW thanks Adora-

I just discussed TBI at length with the Chaplain at the Bath VAMC-

didnt know this was at the Fed Reg yet!

I encourage any one who wants to comment on this reg to do so at the Fed Register site- they have changed their format- and it is a little easier to make a public comment there now.

[allan]

Thanks Wings!!!

[Rockhound]

When will I get to send in my claim under these New rules? Fractured nasal bone with concussion and lights out/unconcious for a short time. Not I have a personality disorder, adjustment disorder with depression and anxiety and I on occasion get migraines for which I have medicine procribed for them. light sinsitivity, fullmess feeling in ears at times, sleep problems, some confusion at times, trouble remembering things and peoples names, concentration is bad, should I go on?

It is all in my medical charts from the VA and the injury occured while in the service, oh yes job and school history afterward reflects something was wrong. emotional outburst of crying. Can all this be from a mild concussion/TBI? and will soon be ratable?

When?

Rockhound :)

[Wings]

x

x

x

TO COMMENT ON PROPOSED VA REGULATIONS ...

Regulations.gov

LIVE URL "advanced document search"

http://www.regulations.gov/fdmspublic/component/main?main=AdvancedDocument

Hints

Agency: (choose) Department of veterans Affairs

CFR: (choose) Title 38

Document Type: (choose preference) ie Rules, Proposed Rulles, etc.

Document Subtype: (choose or leave default all)

Date Posted: (choose range of years, narrow your search)

Comment Period End: (choose, extend end time approx. 1 year)

Keyword: (or not)

Click on SUBMIT

Then See: Document ID

Then See: Add Comment on far right margin

FIRE FOR EFFECT !!

ANYONE CAN COMMENT!!

Your Organizational Name is "United States, Disabled Veteran"

Edited January 16, 2008 by Wings

[timetowinarace]

This would change my rating completely.

I had posted a question regarding these current regs earlier in the day but no one bothered to address it. No problem, this answers my question.

I have one rating currently at 100% for cognative disorder, MDD, anxiaty, and residuals.

Under the proposed changes it appears my ratings would go something like this.

Cognative dissorder 100%

Depression, anxiaty 100%

Migraines 50%

Symtom cluster 40%

The old ratings are ridiculous. Many veterans are getting the shaft.

I've started many threads asking about these old regs, all without any replies. I always wondered why my migraines, fatigue, dizziness, insomnia, sound sensitivity, light sensitivity, can't smell, constant shaking, weak, ect, ect, ect, could not be rated. These are the things that affect me the most. Those are the things I feel every minute of every day. If you don't have these things you don't have a clue what it's like. These are things that make me wish I'd die.

Bout time the regs are changed.

Time

[timetowinarace]

When will I get to send in my claim under these New rules? Fractured nasal bone with concussion and lights out/unconcious for a short time. Not I have a personality disorder, adjustment disorder with depression and anxiety and I on occasion get migraines for which I have medicine procribed for them. light sinsitivity, fullmess feeling in ears at times, sleep problems, some confusion at times, trouble remembering things and peoples names, concentration is bad, should I go on?

It is all in my medical charts from the VA and the injury occured while in the service, oh yes job and school history afterward reflects something was wrong. emotional outburst of crying. Can all this be from a mild concussion/TBI? and will soon be ratable?

When?

Rockhound :)

It is ratable now at 10%. you need neuro-psychological testing to prove cognative dissorder to get more than 10%. And yes, all of those symptoms could be TBI.

Time