[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54693-54708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22083]


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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: Final rule.

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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 
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

    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 
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 
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 
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 
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 
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 
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 
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 
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 
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 
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 
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 regulation if we provided criteria 
for the frequency and severity of each possible individual 
neurobehavioral effect, and adding a method to combine such assessments 
into an overall evaluation would add to the complexity. Therefore, we 
have provided evaluation criteria for neurobehavioral effects based on 
the extent of interference with workplace interaction and social 
interaction, as discussed above. We also listed numerous examples of 
neurobehavioral effects at the 0 level, and indicated that any of the 
effects may range from slight to severe but that verbal and physical 
aggression are likely to have a more serious impact on workplace 
interaction and social interaction than some of the other effects.
    One commenter disagreed with the statements in the preamble to the 
proposed rule that cognitive impairment is defined as decreased memory, 
attention, and executive functions of the brain and that primarily 
those who experienced a moderate or severe TBI would require evaluation 
under these criteria. The commenter felt that the need for cognitive 
assessment should be customized to each individual veteran's clinical 
signs and symptoms irrespective of the severity of the TBI in the 
immediate post-injury period and that all veterans with TBI should 
undergo cognitive evaluation for the claimed symptoms.
    We agree in part with the commenter. The final rule does not 
provide different criteria depending on the original classification of 
TBI and does not limit evaluation under these criteria to veterans who 
experienced a moderate or severe TBI. Therefore, every veteran examined 
for residuals of TBI will be screened for cognitive impairment, 
regardless of the level of severity in the immediate post-injury 
period. Additional testing will then be conducted as indicated. 
However, we disagree that cognitive impairment is not defined as 
decreased memory, attention, and executive functions of the brain. The 
Veterans Health Initiative booklet titled ``Traumatic Brain Injury,'' 
referred to above, states on page 73 that the following symptoms have 
been seen as the most prominent cognitive sequelae following moderate 
to severe TBI: Attention and concentration problems, new learning and 
memory deficits, and executive control dysfunction.

[[Page 54700]]

Visual-Spatial Facet

    One commenter suggested we add reading difficulty to the visual-
spatial function facet (retitled visual spatial orientation). We 
believe that the communication (proposed as speech and language) facet 
adequately covers the issue of reading, via its criteria concerning the 
ability to communicate and to comprehend written language. Another 
commenter noted that the differential diagnosis of the visual-spatial 
function is not included. The differential diagnosis of a condition, 
which is often used clinically in arriving at a diagnosis, is not 
included because the purpose of the rating schedule is to provide 
criteria for determining the level of severity of a condition that has 
already been diagnosed by a clinician. Including a differential 
diagnosis in the rating schedule is neither necessary nor appropriate. 
We make no change based on this comment.
    Another commenter stated that additional symptoms, such as loss of 
color vision and photosensitivity, should be included in the visual-
spatial facet. As the preamble of the proposed regulation stated, our 
intent was to provide guidance for the evaluation of the most common, 
but not all possible, residuals of TBI. Visual-spatial orientation (the 
facet that was titled visual-spatial function in the proposed rule) 
refers to the relationship of objects in space to the body. Neither 
photosensitivity nor loss of color vision falls into this category. 
Since photosensitivity is a subjective symptom that is common after 
TBI, we have, however, included it as an example in the subjective 
symptoms facet at level 1. Vision screening is part of the TBI 
examination, and any signs or symptoms of visual problems found on 
screening require an examination by a vision specialist. If there are 
complaints of loss of color vision, special testing can be done to 
confirm the type and severity. It is therefore not a subjective 
symptom, as many aspects of vision impairment are not, but would be 
assessed under the direction in this rule to evaluate physical 
(including neurological) dysfunction under an appropriate diagnostic 
code. Visual impairment is one of the dysfunctions listed under this 
direction.
    The same commenter said that the visual-spatial function facet 
should be reviewed by both neuro-opthalmology and low vision optometry 
experts, so that they can revise the facet as necessary to avoid 
inaccurate ratings for veterans who have significant impairments to 
their visual system. In practice, a vision specialist will examine any 
veteran with TBI who has vision complaints or in whom vision 
abnormalities are found or suspected on a screening examination. In 
addition, the vision specialists have the option of requesting 
additional special examinations when needed. However, the degree of 
specificity and complexity that neuro-opthalmology and low vision 
optometry experts might add to the facet would not necessarily assist 
in the disability evaluation process, because a fairly gross assessment 
of functional impairment allows raters to make an appropriate 
evaluation in the great majority of cases. Moreover, specific veterans 
may receive special examinations, where appropriate, as noted above. 
Finally, in exceptional cases where the schedular evaluations are found 
to be inadequate, an extra-schedular evaluation commensurate with the 
average earning capacity impairment may be assigned, based on such 
factors as marked interference with employment or frequent periods of 
hospitalization (see 38 CFR 3.321(b)). We make no change based on this 
comment.
    Two commenters questioned how the judgment facet will be assessed, 
and they recommended more specific criteria. Judgment will be assessed 
by clinicians, as is routinely done during the course of examinations 
for mental disorders. We have added more specific information to the 
criteria in the judgment facet, indicating that judgment involves 
weighing the alternatives, understanding the consequences of choices, 
and making a reasonable decision.
    One commenter suggested that the facet for supervision for safety 
should include not only the safety of the individual but also the 
safety of others. We have removed the supervision for safety facet 
because the need for supervision to protect the veteran from hazards in 
the environment would warrant SMC, as explained above. Verbal and 
physical aggressiveness would be evaluated under the subjective 
symptoms facet, and they are given as examples there.
    One commenter said that the appropriate response in the social 
situations facet should include appropriate response in interpersonal 
relationships. The criteria in this facet, which we renamed social 
interaction, would encompass interpersonal relationships, as social 
situations include individual interaction and relationships as well as 
group interaction and relationships. We have revised the social 
situations facet, but we make no additional change based on this 
comment.

Cognitive Impairment Formula

    Several commenters objected to the levels of evaluation for the 
facets and to the formula used to calculate the disability evaluation. 
One commenter said that using just 4 categories of impairment is too 
limited and that this limitation plus the lack of specificity could 
result in nearly all disability ratings for TBI being too low. Since, 
for most facets, percentage evaluations based on the table range from 0 
to 100 percent, with levels of 10, 40, and 70 percent between them, the 
range of possible evaluations is broad and should be adequate for 
evaluating the severity of residuals. As stated above, an extra-
schedular evaluation is available for exceptional cases in which the 
available evaluation criteria are not sufficient. Regarding the comment 
about lack of specificity, we have revised many of the criteria to make 
them more specific. Making them too specific, however, would 
disadvantage veterans because there is an extremely wide range of 
variability of the residuals of TBI, and leaving some flexibility in 
the criteria will allow evaluation based on a broad range of specific 
findings that may vary from veteran to veteran.
    Another commenter said that the number of impaired facets should be 
weighted by the level of each facet, and the results combined by means 
of a specially designed combination table to calculate the additive 
disabling effects of TBI. We do not agree that this is necessary, and 
it would add greatly to the complexity of the regulation, without an 
obvious benefit. We make no change based on this comment.
    Two commenters stated that not every facet includes every level 
between 0 and 4 (now 0 and total) but failed to notice that we pointed 
this out in the proposed regulation. The rationale is that not every 
facet warrants the entire gamut of evaluations, and we provided levels 
that we believe are most appropriate for each facet. One of these 
commenters recommended that a psychometrician examine the method of 
evaluation and that VA develop a plan to evaluate reliability and 
validity. This final rule reflects the input of medical professionals, 
some of whom contributed indirectly through research and public 
discussions about TBI and others who contributed directly by drafting 
or commenting on the rating criteria. Therefore, there is a scientific 
basis for the rule. Because the need for a new approach to TBI is both 
immediate and critical, we cannot delay further by submitting the 
criteria to a

[[Page 54701]]

psychometrician. However, VA will be paying close attention to the 
applications of this schedule in individual cases, and we will make any 
necessary revisions.
    One commenter stated that the cognitive impairment table is unfair 
because a veteran requiring assistance with ADLs (formerly a facet) 
some of the time but less than half of the time could receive only a 10 
percent evaluation. This comment is no longer pertinent since we have 
removed that facet. A similar comment we received to the effect that a 
veteran with only 3 facets of cognitive impairment could be 
unemployable but might only receive a 40-percent evaluation is also not 
pertinent now, since we have provided for a 100-percent evaluation for 
the most serious effects of these facets of TBI.

Neuropsychological Testing

    Several commenters noted that we did not propose to require 
neuropsychological testing as part of every examination for TBI and did 
not provide guidance for the appropriate use of such testing. They felt 
such examinations are necessary.
    We discussed this issue above in response to comments about 
specificity of the criteria and explained why we are leaving it to the 
discretion of the clinicians who examine veterans with TBI to determine 
when neuropsychological testing is needed. We make no change based on 
this comment.

Comorbid Mental Disorders

    One commenter was concerned that mental health examiners who 
examine veterans with TBI may not be able to fully evaluate the 
veterans' physical problems related to TBI and wondered if we would 
have joint evaluations. We have developed and will issue updated 
Compensation and Pension Examination worksheets and computerized 
examination templates that will take into account the requirements of 
this regulation. These examination guidelines will include guidance, 
developed in association with the Veterans Health Administration's TBI 
experts, about who may conduct these examinations in order to ensure 
that all aspects of the veteran's disability are fully assessed.
    One commenter stated that the rule should require VA to consider 
whether service connection is warranted for mental disorders secondary 
to service-connected TBI, while another commenter stated that VA rating 
officials should be careful not to attribute TBI signs and symptoms to 
a nonservice-connected mental disorder. There are several regulations 
that raters must apply in determining secondary service connection, and 
raters are very familiar with them and apply them daily. The applicable 
regulations need not be restated in this regulation as they apply in 
all cases.
    Another commenter requested that we reinforce the fact that 
diagnosing or evaluating co-morbid mental disorders is difficult in 
someone with cognitive impairments. This information would be more 
appropriately conveyed to examiners and raters through training rather 
than through rating schedule regulations. VA has already carried out a 
number of TBI training initiatives and is planning even more extensive 
training in the near future, so that raters and clinicians will be well 
informed on the issues relating to the assessment of all aspects of 
TBI, including that of comorbid disorders. We make no change based on 
this comment.
    We received 2 comments about proposed note number 1 under the 
cognitive impairment table, which required that a single evaluation be 
assigned 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) if the signs and symptoms of the mental disorder(s) 
and of cognitive impairment cannot be clearly separated. It also stated 
that if the signs and symptoms are clearly separable, VA would assign 
separate evaluations for the mental disorder(s) and for cognitive 
impairment.
    One commenter said there should be more explanation for this 
determination because the criteria in the cognitive impairment table 
overlap with the criteria for evaluating mental disorders under 38 CFR 
4.130, and because coexisting mental disorders may increase the TBI 
disability. According to the commenter, the note should state that if 
the signs and symptoms of a mental disorder and of cognitive impairment 
cannot be clearly separated, assign a single evaluation for whichever 
provides the better assessment and elevate that evaluation to the next 
higher evaluation. The second commenter said that this provision 
unfairly places the burden on the veteran and is inconsistent with the 
benefit of the doubt doctrine.
    Regarding the first comment, the findings do overlap, and that is 
the reason the provision is needed. Pursuant to 38 CFR 4.14, Avoidance 
of pyramiding, VA is prohibited from evaluating the same impairments 
under different diagnoses, because to do so would effectively 
compensate the veteran twice for the same disability. Raters apply this 
regulation in numerous situations of overlapping symptoms, for example, 
when both mental and physical disorders are present, when more than one 
mental disorder or physical disorder (one service-connected and one 
not) is present, when there are two conditions affecting the same body 
system, with one service-connected and one not, etc. TBI is not unique 
in requiring the application of this regulation. Although the commenter 
stated that an evaluation encompassing both the effects of TBI and of a 
mental disorder should be elevated to the next higher level of 
evaluation than would be assigned based on whichever provides the 
better assessment (because the commenter felt that coexisting mental 
disorders may increase the TBI disability), we believe that the 
combined disabling effects of TBI and a mental disorder will be 
adequately taken into account by an evaluation that is based on ``the 
better assessment of overall impaired functioning due to both 
conditions,'' since such an assessment would include the extent of 
disabling effects due to both conditions. Regarding the second comment, 
the percentage evaluation is determined by the rater based on an 
assessment by the examiner, so there is no unique burden on the veteran 
in this situation. We make no change based on these comments.

Motor Impairment Evaluation

    Two commenters expressed concern that there are no guidelines for 
selecting the appropriate code for evaluating such impairments of motor 
function as spastic hypertonia. We are planning to revise the 
neurologic section of the rating schedule to update it. One addition we 
plan is a rating formula for movement disorders, which would include 
such conditions as dystonia. We believe the neurologic rating schedule 
revisions will provide an adequate basis of evaluation for motor 
impairments of abnormal tone and spasticity. Until that regulation goes 
into effect, raters will use their judgment to evaluate such conditions 
analogously under the most appropriate diagnostic code in an individual 
case. We make no change based on this comment.

Cumulative Effects

    Two commenters stated that we should emphasize that the effects of 
multiple TBIs are cumulative, and one of them said that the number of 
episodes should be tracked. Although a veteran who has had multiple 
episodes of even mild TBI is more vulnerable to

[[Page 54702]]

persistent residuals, this is not relevant to the evaluation of TBI 
residuals, which is based on the extent of current disability, whether 
due to a single service-connected TBI or to multiple service-connected 
TBIs. If there were several in-service injuries, the examiner would 
consider their possible cumulative effect, consistent with sound 
medical principles. Thus, whether there was one or repeated instances 
of head trauma in service, raters evaluate residuals based on current 
functional impairment when provided with a diagnosis of TBI and 
findings the examiner attributes to TBI. Therefore, so long as a 
current disability can be medically linked to service, it will not 
matter whether the veteran suffered one head trauma or several lesser 
head traumas during service. It might be useful for other entities to 
track the number of TBI episodes for their particular purposes, such as 
taking precautions to prevent additional TBIs in a veteran who has 
already experienced one or more. However, it is generally not necessary 
for disability evaluation purposes. Therefore, we make no changes based 
on these comments.

Tools and Concepts for Assessing Disability

    Various commenters recommended that we include specific assessment 
tools as part of our evaluation criteria. These included calls for the 
use of the American Speech-Language-Hearing Association's Functional 
Communication Measures to assess speech and language; the American 
Association on Intellectual and Developmental Disabilities' Supports 
Intensity Scale, to rate frequency, intensity, and type of support 
needed to engage in home living, community, lifelong learning, 
employment, health and safety, social activities, protection and 
advocacy, medical supports, and behavioral supports; and assessment 
tools on the Center for Outcome Measurement in Brain Injury Web site.
    While all of these tools may be useful for clinical purposes, 
including them as part of the rating process would make the regulation 
prohibitively complex. Some commenters stated that even the proposed 
regulation, without those tools, was too complex and would be too time 
consuming to implement. One commenter said that the proposed regulation 
is unworkable due to its complexity, that it is difficult and 
burdensome, and that because of raters' productivity standards, 
employees might be pressured to take shortcuts on the case. Another 
said that the proposal will more than triple the work to rate a claim, 
and that there will be a long learning curve for raters. Some items 
assessed by the recommended tools, such as rating the type of support 
needed to engage in lifelong learning and rating medical and behavioral 
supports, go well beyond VA's statutory requirement to rate based on 
average impairment of earning capacity.
    Also, the use of specific evaluative tests is the province of the 
medical specialist conducting the examination. So long as the 
examination report contains sufficient detail to rate the veteran's 
disability under the criteria in the regulation, it matters little 
which evaluative methods are used for the purposes of the rating 
schedule. For all these reasons, we make no change based on these 
comments.

Administration of Assessment

    We received a number of comments about administering the 
regulation. Two of the commenters recommended that the rule be pilot 
tested in a large outcome study and be validated, standardized, etc. 
One felt that we should take into account time of day, familiarity with 
assessor, etc., and evaluate based on multiple sources. We discussed 
above the facts that multiple sources of information are considered in 
evaluating TBI and that the TBI regulations were developed based on 
multiple sources of information and in consultation with multiple TBI 
experts. Conducting the recommended studies would significantly delay 
the implementation of the regulation, which we believe should be 
expedited to the extent possible. However, VA regularly reviews the 
adequacy of the rating decisions issued by our regional offices, and if 
we encounter problems in the implementation of this regulation that can 
be fixed through subsequent revision of our regulations, then we will 
certainly take appropriate action in the future. We make no change 
based on these comments.
    One commenter pointed out the need for training for examiners and 
the development of new examination templates with explicit instructions 
for each level of impairment. These are all planned but are not part of 
the regulation, and we make no change based on this comment.
    Another commenter said that those proposing these ratings and 
regulations should be comprised of veterans suffering from TBI. This 
would be impractical since writing regulations is a highly technical 
undertaking that requires knowledge about the medical aspects of TBI, 
which are very complex, as well as knowledge about the legal aspects of 
regulations in general and rating schedule regulations in particular. 
This rulemaking was developed and written by medical and legal experts 
within VA who are knowledgeable about TBI in consultation with outside 
experts. In addition, Veterans, their caretakers, and the general 
public have had an opportunity to comment on the proposed regulation, 
and we are taking all comments into account. Therefore we make no 
change based on this comment.

Systematic Review of Regulation

    Four commenters recommended that the TBI regulations be regularly 
reviewed and updated as medical information is updated. We agree that 
this is necessary and plan to do so.

Collaboration Among Various Groups of Experts

    Several commenters recommended either more collaboration among 
civilian and military experts in TBI assessment and rehabilitation to 
ensure that veterans with TBI receive the highest quality of care or 
the establishment of an advisory committee to include experts in 
diagnosis and treatment, as well as vocational experts, who can provide 
a scientifically valid basis for the new regulation. Prior to 
developing the regulation, a series of conferences on TBI were held 
over a period of many months. The conferences included TBI experts from 
VA, the Department of Defense, and the non-governmental medical 
community. All aspects of TBI, including definition and diagnosis, 
disability assessment, treatment, family concerns, long-term care, 
testing methods, education and training, and research were thoroughly 
addressed. Those meetings provided extensive information on TBI that we 
carefully considered as we developed the regulations.
    Another commenter recommended that VA form an employee workgroup to 
study and evaluate no fewer than 1,000 cases under the proposed 
regulation to determine whether the regulation is workable. This 
recommendation would be impractical to adopt because it would require 
us to delay implementing the regulation and would take substantial 
personnel time away from other duties, so we do not plan to adopt this 
recommendation. Once the regulation goes into effect, we will make 
adjustments to it if we find they are needed. However, we expect that 
with some training, which we are planning, raters will not find this 
regulation exceptionally difficult to apply.

[[Page 54703]]

Source of Information for Rating Determination

    One commenter asked how a rater would obtain evidence to apply the 
cognitive impairment table and said that the veteran's recovery team 
should be queried, and another commenter asked who would be the source 
of information used to make the rating determination. As mentioned 
above, raters take into account all available medical evidence and 
other pertinent information. The report by the clinician who conducts 
the Compensation and Pension disability examination is a primary source 
of information. That clinician may incorporate into the examination 
report information received from individuals other than the veteran, 
including family members, caretakers, etc. Raters therefore receive an 
extensive amount of information to be used in making their 
determinations.
    One of these commenters also recommended that we undertake health-
service research to document the validity of the proposed rating 
constructs, inter-adjudicator reliability of the rating determinations 
and the actual versus predicted levels of disability. We have already 
addressed similar comments above and make no change in response to this 
comment.

Quality of Life (QOL)

    One commenter said that disability ratings should reflect greater 
sensitivity to the potentially immense significance of any TBI-related 
impairment in terms of major loss in quality of life, regardless of how 
``mild'' a symptom may appear to be on paper, and that VA should 
provide compensation for loss of QOL for all with TBI, including mild 
TBI. A second commenter also said that mild TBI should be compensated 
for QOL.
    The current statutory requirement is that disability ratings be 
based on average impairment of earning capacity. However, VA has 
contracted for a study concerning issues related to quality of life in 
determining disability. We make no change based on these comments, 
pending the completion of that study and VA's review of the study and 
any recommendations made.

General Comments

    One commenter expressed the hope that the use of this regulation 
will not be limited to soldiers with combat-related injuries. This 
regulation will apply to any veteran with residuals of a service-
related TBI of any origin.
    Another commenter said that grouping cognitive impairment, the 
subjective symptoms cluster, and emotional/behavioral disorders under 
one diagnostic code would be unfair to claimants, who might otherwise 
receive 3 separate ratings. Our intent is that mental disorders 
associated with TBI will not be evaluated under diagnostic code 8045 
but under the mental disorders section of the rating schedule (Sec.  
4.130). The subjective symptoms have been incorporated in the final 
rule into the table now titled ``Evaluation Of Cognitive Impairment And 
Other Residuals Of TBI Not Otherwise Classified.'' A single evaluation 
will be assigned based on this table, but each of the facets in it will 
be considered.
    We proposed to determine the evaluation level based on this table 
by adding the 3 highest evaluation levels and dividing that sum by 3 to 
determine the overall evaluation. However, we have revised this method 
to prevent the dilution of the severity level of the highest rated 
disability that would occur if less disabling problems were taken into 
account in the evaluation, as we proposed. Therefore, we have revised 
the method to base the evaluation on the highest level assigned for any 
facet. This level will determine the overall evaluation under the table 
of 0, 10, 40, 70, or 100 percent. This method of determining the 
evaluation is an efficient way to take into account the major and most 
severe disabling effects of TBI.
    Another commenter stated that the proposal should encourage 
participation in vocational rehabilitation. The rating schedule, which 
is a guide to the evaluation of disabilities, is not the appropriate 
document in which to discuss the potential or need for vocational 
rehabilitation, and we make no change based on this comment.
    One commenter urged VA to recognize the multidimensional and 
complex aspects of brain injury and points out that a variety of health 
problems, such as hypopituitarism, that do not exist immediately after 
TBI, become evident later. The commenter further said that the short 
and long-term impacts of TBI are still unknown. These are important 
points, and VA will make adjustments to the TBI regulation as necessary 
based on developing medical information about long-term and delayed 
residuals of TBI. The regulation does indicate that endocrine 
dysfunction is one of the possible physical residuals of TBI, and the 
rating schedule contains criteria for the evaluation of endocrine 
disabilities, including pituitary dysfunction, in the endocrine section 
of the rating schedule (38 CFR 4.119).
    The same commenter urged VA to err on the side of providing more, 
rather than less, compensation to veterans for reported TBI-related 
impairments. Regulations (38 CFR 4.3, ``Resolution of reasonable 
doubt'' and 38 CFR 3.102, ``Reasonable doubt'') require VA to 
administer the law under a broad interpretation, consistent, however, 
with the facts shown in every case, and when there is a reasonable 
doubt regarding service origin, the degree of disability, or any other 
point, such doubt will be resolved in favor of the claimant. This is a 
guiding principle in all VA rating determinations. We also believe that 
the revisions to the proposed schedule, reflected in this final rule, 
will tend to result in awards of more, rather than less, compensation 
in individual cases.

Sua Sponte Reviews and Effective Date

    We received several comments regarding the applicability date of 
the revised regulation and rating reviews under the new criteria. One 
commenter stated that VA should provide sua sponte reviews under the 
new criteria for all cases with service-connected TBI residuals. The 
commenter felt that the proposal would have required veterans to take 
affirmative action to request review, and many veterans will not know 
to do this or are too impaired to take such action. Additionally, the 
commenter stated that VA's undertaking review on its own initiative 
would result in an earlier effective date of any increase in 
compensation compared to review undertaken at a veteran's request.
    The commenter also said that VA's proposal would create two classes 
of TBI ratings, some under the current criteria and some under the new 
criteria, which is inequitable. The commenter continued, if VA applies 
the new rating criteria to all TBI cases, they would all be rated 
uniformly under the same criteria.
    A commenter stated that there should be a clause in the proposed 
regulation to direct raters not to reduce ratings under the new 
criteria. The commenter felt that no veterans who currently have 
service-connected TBI residuals should be adversely impacted by the 
rating criteria change.
    A commenter stated that the proposed applicability of the revised 
rating criteria to all applications for benefits received by VA on or 
after the effective date of this rule is too restrictive and appears to 
violate 38 U.S.C. 5110 for claims pending on the date of enactment. 
Furthermore, given the nature of TBI, it is too burdensome to require 
veterans with TBI to request review. The commenter thought that claims 
filed on or after October 7, 2001, should be reviewed for 
readjudication

[[Page 54704]]

under the revised regulation. At a minimum, the commenter continued, 
veterans who currently have service-connected TBI should be notified of 
the change and offered a simple form to use if they wish to request 
review.
    Another commenter stated that it is unfair to apply the old rating 
criteria to pending claims. It was suggested that the new criteria 
apply to claims and appeals pending on the date of publication of the 
new rule.
    VA is applying this rating schedule change prospectively. It would 
be unfair to veterans to apply new criteria to examinations and medical 
evidence produced under prior guidance. As stated, we are revising our 
training and examination templates based on our new criteria. The 
applicability date and review guidance we are providing will allow 
veterans to be re-rated with new examinations that conform to the new 
criteria to ensure an adequate rating is provided. An effective date of 
a higher rating under the criteria would not be available prior to the 
effective date of the new criteria, as the new criteria did not exist 
prior to that date. It is unlikely that a veteran would receive a lower 
rating under the new criteria; however, consistent with 38 U.S.C. 1155, 
any review under the new criteria will not result in a reduction in a 
veteran's disability rating unless the veteran's disability is shown to 
have improved. We will provide outreach to ensure that all affected 
veterans are informed of the new criteria and the availability of re-
rating under the new criteria. However, that is separate from what is 
included in the regulation. We are therefore making no changes based on 
these comments.

Additional Changes

    In addition to adding the note defining ``instrumental activities 
of daily living,'' we made other changes in the notes under diagnostic 
code 8045. We revised proposed note (1), which directed how to evaluate 
when both cognitive impairment and one or more comorbid mental 
disorders are present, by expanding the instructions to include the 
situation when there is overlap of manifestations of the conditions 
evaluated under the table titled ``Evaluation Of Cognitive Impairment 
and Other Residuals Of TBI Not Otherwise Classified'' with not only a 
comorbid mental disorder but also with a neurologic or other physical 
disorder that can be separately evaluated under another diagnostic 
code. It states that if the manifestations of two or more conditions 
cannot be clearly separated, a single evaluation should be assigned 
under whichever set of diagnostic criteria allows the better assessment 
of overall impaired functioning due to both conditions, but if the 
manifestations are clearly separable, a separate evaluation should be 
assigned for each condition. This revision provides more comprehensive 
guidance to raters than the proposed note.
    We have removed proposed note (2), which directed how to evaluate 
when both cognitive impairment and the symptoms cluster were present. 
This direction is no longer necessary since we have included cognitive 
impairment and subjective symptoms in the same rating table. We 
replaced proposed note (2) with new note (2), which states, for the 
sake of clarity, that symptoms listed 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.
    We also removed proposed note (3), which referred to the evaluation 
of subjective symptoms and cognitive impairment and is no longer 
pertinent. It directed that evaluation be made under the set of 
criteria that is most in accord with the residuals, whatever the 
original classification of the level of severity of the TBI. We 
replaced this with new note (3), concerning instrumental activities of 
daily living, as described above.
    We made no change to the content of proposed note (4) concerning 
review of ratings for TBI made under the criteria effective before the 
effective date of this final regulation. However, we moved this content 
to new note (5).
    We added new note (4), which states that the terms ``mild,'' 
``moderate,'' and ``severe,'' 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. This is a restatement of material in the proposed rule that 
was under diagnostic code 8045.
    We edited language under diagnostic code 8045 and reorganized some 
of it for the sake of clarity and to comport with the revised 
evaluation criteria. For example, we removed all references to the 
proposed set of evaluation criteria for subjective symptoms clusters, 
which are no longer needed. To avoid confusion, we also added a 
statement that the evaluation assigned based on the ``Evaluation Of 
Cognitive Impairment And Other Residuals Of TBI Not Otherwise 
Classified'' table will be considered the evaluation for a single 
condition for purposes of combining with other disability evaluations.
    VA appreciates the comments submitted in response to the proposed 
rule. Based on the rationale stated in the proposed rule and in this 
document, the proposed rule is adopted with the changes noted.
    We are additionally adding updates to 38 CFR part 4, Appendices A, 
B, and C, to reflect changes to the TBI rating criteria made by this 
rulemaking. The appendices are tools for users of the Schedule for 
Rating Disabilities and do not contain substantive content regarding 
evaluation of disabilities. As such, we believe it is appropriate to 
include these updates in this final rule.

Benefits Costs

    None of the changes to the proposed rule will alter the estimated 
costs provided in the previous Notice of Proposed Rulemaking.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will 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 final rule would not affect any small entities. Only VA 
beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this final rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

Executive Order 12866

    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

[[Page 54705]]

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 final rule have been examined and it has been 
determined to be a significant regulatory action under the Executive 
Order 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 the 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 year. This final 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 final rule 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: August 22, 2008.
James B. Peake,
Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, 38 CFR part 4, subpart B, is 
amended as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

0
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

0
2. In Sec.  4.124a, in the table titled ``Organic Diseases of the 
Central Nervous System,'' the entry for 8045 is revised in its entirety 
and a new table titled ``Evaluation of Cognitive Impairment And Other 
Residuals of TBI Not Otherwise Classified'' is added after the 
``Organic Diseases of the Central Nervous System'' table, to read as 
follows:


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

* * * * *

                                 Organic Diseases of the Central Nervous System
----------------------------------------------------------------------------------------------------------------
                                                                                                        Rating
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
8045 Residuals of traumatic brain injury (TBI):
    There are three main areas of dysfunction that may result from TBI and have profound effects on
     functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral,
     and physical. Each of these areas of dysfunction may require evaluation.
    Cognitive impairment is defined as decreased memory, concentration, attention, and executive
     functions of the brain. Executive functions are goal setting, speed of information processing,
     planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision
     making, spontaneity, and flexibility in changing actions when they are not productive. Not all
     of these brain functions may be affected in a given individual with cognitive impairment, and
     some functions may be affected more severely than others. In a given individual, symptoms may
     fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled
     ``Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.''
    Subjective symptoms may be the only residual of TBI or may be associated with cognitive
     impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of
     TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet
     in the table titled ``Evaluation of Cognitive Impairment and Other Residuals of TBI Not
     Otherwise Classified.'' However, separately evaluate any residual with a distinct diagnosis
     that may be evaluated under another diagnostic code, such as migraine headache or Meniere's
     disease, even if that diagnosis is based on subjective symptoms, rather than under the
     ``Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified''
     table.
    Evaluate emotional/behavioral dysfunction under Sec.   4.130 (Schedule of ratings--mental
     disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a
     mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled
     ``Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.''
    Evaluate physical (including neurological) dysfunction based on the following list, under an
     appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities
     and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste;
     seizures; gait, coordination, and balance problems; speech and other communication
     difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder;
     neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine
     dysfunctions.
    The preceding list of types of physical dysfunction does not encompass all possible residuals
     of TBI. For residuals not listed here that are reported on an examination, evaluate under the
     most appropriate diagnostic code. Evaluate each condition separately, as long as the same
     signs and symptoms are not used to support more than one evaluation, and combine under Sec.
     4.25 the evaluations for each separately rated condition. The evaluation assigned based on the
     ``Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified''
     table will be considered the evaluation for a single condition for purposes of combining with
     other disability evaluations.
    Consider the need for special monthly compensation for such problems as loss of use of an
     extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance
     (including for protection from hazards or dangers incident to the daily environment due to
     cognitive impairment), being housebound, etc.
----------------------------------------------------------------------------------------------------------------

[[Page 54706]]

 
                     Evaluation of Cognitive Impairment and Subjective Symptoms
----------------------------------------------------------------------------------------------------------------
The table titled ``Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise
 Classified'' contains 10 important facets of TBI related to cognitive impairment and subjective
 symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging
 from 0 to 3, and a 5th level, the highest level of impairment, labeled ``total.'' However, not
 every facet has every level of severity. The Consciousness facet, for example, does not provide
 for an impairment level other than ``total,'' since any level of impaired consciousness would be
 totally disabling. Assign a 100-percent evaluation if ``total'' is the level of evaluation for one
 or more facets. If no facet is evaluated as ``total,'' assign the overall percentage evaluation
 based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent;
 and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of
 evaluation for any facet.
    Note (1): There may be an overlap of manifestations of conditions evaluated under the table
     titled ``Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise
     Classified'' with manifestations of a comorbid mental or neurologic or other physical disorder
     that can be separately evaluated under another diagnostic code. In such cases, do not assign
     more than one evaluation based on the same manifestations. If the manifestations of two or
     more conditions cannot be clearly separated, assign a single evaluation under whichever set of
     diagnostic criteria allows the better assessment of overall impaired functioning due to both
     conditions. However, if the manifestations are clearly separable, assign a separate evaluation
     for each condition.
    Note (2): Symptoms listed as examples at certain evaluation levels in the table are only
     examples and are not symptoms that must be present in order to assign a particular evaluation.
    Note (3): ``Instrumental activities of daily living'' refers to activities other than self-care
     that are needed for independent living, such as meal preparation, doing housework and other
     chores, shopping, traveling, doing laundry, being responsible for one's own medications, and
     using a telephone. These activities are distinguished from ``Activities of daily living,''
     which refers to basic self-care and includes bathing or showering, dressing, eating, getting
     in or out of bed or a chair, and using the toilet.
    Note (4): The terms ``mild,'' ``moderate,'' and ``severe'' TBI, which may appear in medical
     records, refer to a classification of TBI made at, or close to, the time of injury rather than
     to the current level of functioning. This classification does not affect the rating assigned
     under diagnostic code 8045
    Note (5): A veteran whose residuals of TBI are rated under a version of Sec.   4.124a,
     diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic
     code 8045, irrespective of whether his or her disability has worsened since the last review.
     VA will review that veteran's disability rating to determine whether the veteran may be
     entitled to a higher disability rating under diagnostic code 8045. A request for review
     pursuant to this note will be treated as a claim for an increased rating for purposes of
     determining the effective date of an increased rating awarded as a result of such review;
     however, in no case will the award be effective before October 23, 2008. For the purposes of
     determining the effective date of an increased rating awarded as a result of such review, VA
     will apply 38 CFR 3.114, if applicable.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


    Evaluation of Cognitive Impairment and Other Residuals of TBI Not
                          Otherwise Classified
------------------------------------------------------------------------
Facets of cognitive  impairment
and other  residuals of TBI not     Level of             Criteria
      otherwise classified         impairment
------------------------------------------------------------------------
Memory, attention,                            0  No complaints of
 concentration, executive                         impairment of memory,
 functions.                                       attention,
                                                  concentration, or
                                                  executive functions.
                                              1  A complaint of mild
                                                  loss of memory (such
                                                  as having difficulty
                                                  following a
                                                  conversation,
                                                  recalling recent
                                                  conversations,
                                                  remembering names of
                                                  new acquaintances, or
                                                  finding words, or
                                                  often misplacing
                                                  items), attention,
                                                  concentration, or
                                                  executive functions,
                                                  but without objective
                                                  evidence on testing.
                                              2  Objective evidence on
                                                  testing of mild
                                                  impairment of memory,
                                                  attention,
                                                  concentration, or
                                                  executive functions
                                                  resulting in mild
                                                  functional impairment.
                                              3  Objective evidence on
                                                  testing of moderate
                                                  impairment of memory,
                                                  attention,
                                                  concentration, or
                                                  executive functions
                                                  resulting in moderate
                                                  functional impairment.
                                          Total  Objective evidence on
                                                  testing of severe
                                                  impairment of memory,
                                                  attention,
                                                  concentration, or
                                                  executive functions
                                                  resulting in severe
                                                  functional impairment.
Judgment.......................               0  Normal.
                                              1  Mildly impaired
                                                  judgment. For complex
                                                  or unfamiliar
                                                  decisions,
                                                  occasionally unable to
                                                  identify, understand,
                                                  and weigh the
                                                  alternatives,
                                                  understand the
                                                  consequences of
                                                  choices, and make a
                                                  reasonable decision.
                                              2  Moderately impaired
                                                  judgment. For complex
                                                  or unfamiliar
                                                  decisions, usually
                                                  unable to identify,
                                                  understand, and weigh
                                                  the alternatives,
                                                  understand the
                                                  consequences of
                                                  choices, and make a
                                                  reasonable decision,
                                                  although has little
                                                  difficulty with simple
                                                  decisions.
                                              3  Moderately severely
                                                  impaired judgment. For
                                                  even routine and
                                                  familiar decisions,
                                                  occasionally unable to
                                                  identify, understand,
                                                  and weigh the
                                                  alternatives,
                                                  understand the
                                                  consequences of
                                                  choices, and make a
                                                  reasonable decision.
                                          Total  Severely impaired
                                                  judgment. For even
                                                  routine and familiar
                                                  decisions, usually
                                                  unable to identify,
                                                  understand, and weigh
                                                  the alternatives,
                                                  understand the
                                                  consequences of
                                                  choices, and make a
                                                  reasonable decision.
                                                  For example, unable to
                                                  determine appropriate
                                                  clothing for current
                                                  weather conditions or
                                                  judge when to avoid
                                                  dangerous situations
                                                  or activities.

[[Page 54707]]

 
Social interaction.............               0  Social interaction is
                                                  routinely appropriate.
                                              1  Social interaction is
                                                  occasionally
                                                  inappropriate.
                                              2  Social interaction is
                                                  frequently
                                                  inappropriate.
                                              3  Social interaction is
                                                  inappropriate most or
                                                  all of the time.
Orientation....................               0  Always oriented to
                                                  person, time, place,
                                                  and situation.
                                              1  Occasionally
                                                  disoriented to one of
                                                  the four aspects
                                                  (person, time, place,
                                                  situation) of
                                                  orientation.
                                              2  Occasionally
                                                  disoriented to two of
                                                  the four aspects
                                                  (person, time, place,
                                                  situation) of
                                                  orientation or often
                                                  disoriented to one
                                                  aspect of orientation.
                                              3  Often disoriented to
                                                  two or more of the
                                                  four aspects (person,
                                                  time, place,
                                                  situation) of
                                                  orientation.
                                          Total  Consistently
                                                  disoriented to two or
                                                  more of the four
                                                  aspects (person, time,
                                                  place, situation) of
                                                  orientation.
Motor activity (with intact                   0  Motor activity normal.
 motor and sensory system).
                                              1  Motor activity normal
                                                  most of the time, but
                                                  mildly slowed at times
                                                  due to apraxia
                                                  (inability to perform
                                                  previously learned
                                                  motor activities,
                                                  despite normal motor
                                                  function).
                                              2  Motor activity mildly
                                                  decreased or with
                                                  moderate slowing due
                                                  to apraxia.
                                              3  Motor activity
                                                  moderately decreased
                                                  due to apraxia.
                                          Total  Motor activity severely
                                                  decreased due to
                                                  apraxia.
Visual spatial orientation.....               0  Normal.
                                              1  Mildly impaired.
                                                  Occasionally gets lost
                                                  in unfamiliar
                                                  surroundings, has
                                                  difficulty reading
                                                  maps or following
                                                  directions. Is able to
                                                  use assistive devices
                                                  such as GPS (global
                                                  positioning system).
                                              2  Moderately impaired.
                                                  Usually gets lost in
                                                  unfamiliar
                                                  surroundings, has
                                                  difficulty reading
                                                  maps, following
                                                  directions, and
                                                  judging distance. Has
                                                  difficulty using
                                                  assistive devices such
                                                  as GPS (global
                                                  positioning system).
                                              3  Moderately severely
                                                  impaired. Gets lost
                                                  even in familiar
                                                  surroundings, unable
                                                  to use assistive
                                                  devices such as GPS
                                                  (global positioning
                                                  system).
                                          Total  Severely impaired. May
                                                  be unable to touch or
                                                  name own body parts
                                                  when asked by the
                                                  examiner, identify the
                                                  relative position in
                                                  space of two different
                                                  objects, or find the
                                                  way from one room to
                                                  another in a familiar
                                                  environment.
Subjective symptoms............               0  Subjective symptoms
                                                  that do not interfere
                                                  with work;
                                                  instrumental
                                                  activities of daily
                                                  living; or work,
                                                  family, or other close
                                                  relationships.
                                                  Examples are: mild or
                                                  occasional headaches,
                                                  mild anxiety.
                                              1  Three or more
                                                  subjective symptoms
                                                  that mildly interfere
                                                  with work;
                                                  instrumental
                                                  activities of daily
                                                  living; or work,
                                                  family, or other close
                                                  relationships.
                                                  Examples of findings
                                                  that might be seen at
                                                  this level of
                                                  impairment are:
                                                  intermittent
                                                  dizziness, daily mild
                                                  to moderate headaches,
                                                  tinnitus, frequent
                                                  insomnia,
                                                  hypersensitivity to
                                                  sound,
                                                  hypersensitivity to
                                                  light.
                                              2  Three or more
                                                  subjective symptoms
                                                  that moderately
                                                  interfere with work;
                                                  instrumental
                                                  activities of daily
                                                  living; or work,
                                                  family, or other close
                                                  relationships.
                                                  Examples of findings
                                                  that might be seen at
                                                  this level of
                                                  impairment are: marked
                                                  fatigability, blurred
                                                  or double vision,
                                                  headaches requiring
                                                  rest periods during
                                                  most days.
Neurobehavioral effects........               0  One or more
                                                  neurobehavioral
                                                  effects that do not
                                                  interfere with
                                                  workplace interaction
                                                  or social interaction.
                                                  Examples of
                                                  neurobehavioral
                                                  effects are:
                                                  Irritability,
                                                  impulsivity,
                                                  unpredictability, lack
                                                  of motivation, verbal
                                                  aggression, physical
                                                  aggression,
                                                  belligerence, apathy,
                                                  lack of empathy,
                                                  moodiness, lack of
                                                  cooperation,
                                                  inflexibility, and
                                                  impaired awareness of
                                                  disability. Any of
                                                  these effects may
                                                  range from slight to
                                                  severe, although
                                                  verbal and physical
                                                  aggression are likely
                                                  to have a more serious
                                                  impact on workplace
                                                  interaction and social
                                                  interaction than some
                                                  of the other effects.
                                              1  One or more
                                                  neurobehavioral
                                                  effects that
                                                  occasionally interfere
                                                  with workplace
                                                  interaction, social
                                                  interaction, or both
                                                  but do not preclude
                                                  them.
                                              2  One or more
                                                  neurobehavioral
                                                  effects that
                                                  frequently interfere
                                                  with workplace
                                                  interaction, social
                                                  interaction, or both
                                                  but do not preclude
                                                  them.
                                              3  One or more
                                                  neurobehavioral
                                                  effects that interfere
                                                  with or preclude
                                                  workplace interaction,
                                                  social interaction, or
                                                  both on most days or
                                                  that occasionally
                                                  require supervision
                                                  for safety of self or
                                                  others.
Communication..................               0  Able to communicate by
                                                  spoken and written
                                                  language (expressive
                                                  communication), and to
                                                  comprehend spoken and
                                                  written language.
                                              1  Comprehension or
                                                  expression, or both,
                                                  of either spoken
                                                  language or written
                                                  language is only
                                                  occasionally impaired.
                                                  Can communicate
                                                  complex ideas.
                                              2  Inability to
                                                  communicate either by
                                                  spoken language,
                                                  written language, or
                                                  both, more than
                                                  occasionally but less
                                                  than half of the time,
                                                  or to comprehend
                                                  spoken language,
                                                  written language, or
                                                  both, more than
                                                  occasionally but less
                                                  than half of the time.
                                                  Can generally
                                                  communicate complex
                                                  ideas.
                                              3  Inability to
                                                  communicate either by
                                                  spoken language,
                                                  written language, or
                                                  both, at least half of
                                                  the time but not all
                                                  of the time, or to
                                                  comprehend spoken
                                                  language, written
                                                  language, or both, at
                                                  least half of the time
                                                  but not all of the
                                                  time. May rely on
                                                  gestures or other
                                                  alternative modes of
                                                  communication. Able to
                                                  communicate basic
                                                  needs.
                                          Total  Complete inability to
                                                  communicate either by
                                                  spoken language,
                                                  written language, or
                                                  both, or to comprehend
                                                  spoken language,
                                                  written language, or
                                                  both. Unable to
                                                  communicate basic
                                                  needs.

[[Page 54708]]

 
Consciousness..................           Total  Persistently altered
                                                  state of
                                                  consciousness, such as
                                                  vegetative state,
                                                  minimally responsive
                                                  state, coma.
------------------------------------------------------------------------

* * * * *

0
3. In Appendix A to Part 4, Sec.  4.124a, add diagnostic code 8045 in 
numerical order to the table to read as follows:

Appendix A to Part 4--Table of Amendments and Effective Dates Since 
1946

* * * * *

------------------------------------------------------------------------
                               Diagnostic
            Sec.                code No.
------------------------------------------------------------------------
 
                                * * * * *
4.124a......................         8045  Criterion and evaluation
                                            October 23, 2008.
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

0
4. In Appendix B to Part 4, diagnostic code 8045 is revised to read as 
follows:

Appendix B to Part 4--Numerical Index of Disabilities

* * * * *

------------------------------------------------------------------------
            Diagnostic code No.
------------------------------------------------------------------------
 
                                * * * * *
8045......................................  Residuals of traumatic brain
                                             injury (TBI).
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

0
5. In Appendix C to Part 4 under the heading for ``Brain'' remove 
``Disease due to trauma'' and its diagnostic code ``8045''; and add in 
alphabetical order a new heading ``Traumatic brain injury residuals'' 
and its diagnostic code ``8045''.

[FR Doc. E8-22083 Filed 9-22-08; 8:45 am]
BILLING CODE 8320-01-P