[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]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AM75
Schedule for Rating Disabilities; Evaluation of Residuals of
Traumatic Brain Injury (TBI)
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the Department of Veterans Affairs (VA)
Schedule for Rating Disabilities by revising the portion of the
Schedule that addresses neurological conditions and convulsive
disorders. The effect of this action is to provide detailed and updated
criteria for evaluating residuals of traumatic brain injury (TBI).
DATES: Effective Date: This amendment is effective October 23, 2008.
Applicability Date: The amendment shall apply to all applications
for benefits received by VA on or after October 23, 2008. The old
criteria will apply to applications received by VA before that date.
However, a veteran whose residuals of TBI were rated by VA under a
prior version of 38 CFR 4.124a, diagnostic code 8045, will be permitted
to request review under the new criteria, irrespective of whether his
or her disability has worsened since the last review or whether VA
receives any additional evidence. The effective date of any increase in
disability compensation based solely on the new criteria would be no
earlier than the effective date of the new criteria. The effective date
of any award, or any increase in disability compensation, based solely
on these new rating criteria will not be earlier than the effective
date of this rule, but will otherwise be assigned under the current
regulations governing effective dates, 38 CFR 3.400, etc. The rate of
disability compensation will not be reduced based solely on these new
rating criteria.
FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Chief, Regulations
Staff (211D), Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Ave., NW.,
Washington, DC 20420, (727) 319-5847. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On January 3, 2008, VA published in the
Federal Register (73 FR 432) a proposal to amend VA regulations to
revise the material under diagnostic code 8045, Brain disease due to
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