[Federal Register Volume 73, Number 2 (Thursday, January 3, 2008)]
[Proposed Rules]
[Pages 432-438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25522]
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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.
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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
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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
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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