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carlie

Tbi Dc 8045 - New Criteria Oct 2008

Question

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

Page 13.

Director (00/21)

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

Page 14.

Director (00/21)

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.

Director (00/21)

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

Page 16.

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

Page 17.

Director (00/21)

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

Page 19.

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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