Schedule for Rating Disabilities; Evaluation of Residuals of Traumatic Brain Injury (TBI), 432-438 [E7-25522]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

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


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AM75


Schedule for Rating Disabilities; Evaluation of Residuals of 
Traumatic Brain Injury (TBI)

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the Department of Veterans 
Affairs (VA) Schedule for Rating Disabilities by revising that portion 
of the Schedule that addresses neurological conditions and convulsive 
disorders, in order to provide detailed and updated criteria for 
evaluating residuals of traumatic brain injury (TBI).

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

ADDRESSES: Written comments may be submitted through https://
www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (00REG), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to RIN 2900-AM75--``Schedule for Rating Disabilities; Evaluation of 
Residuals of Traumatic Brain Injury (TBI).'' Copies of comments 
received will be available for public inspection in the Office of 
Regulation Policy and Management, Room 1063B, between the hours of 8 
a.m. and 4:30 p.m., Monday through Friday (except holidays). Please 
call (202) 461-4902 (this is not a toll-free number) for an 
appointment. In addition, during the comment period, comments may be 
viewed online through the Federal Docket Management System (FDMS) at 
https://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Regulations Staff 
(211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (727) 319-5847. (This is not a toll-free 
number.)

SUPPLEMENTARY INFORMATION: This document proposes to amend the 
Department of Veterans Affairs (VA) Schedule for Rating Disabilities 
(38 CFR part 4) by revising the material under diagnostic code 8045, 
Brain disease due to trauma, in 38 CFR 4.124a (neurological conditions 
and convulsive disorders). TBI has been called a signature injury of 
the conflict in Iraq, and VA is seeing a statistically larger number of 
veterans of the Iraq and Afghanistan conflicts with residuals of TBI 
than has been seen in previous conflicts. In addition, the effects of 
injuries stemming from blasts resulting from roadside explosions of 
improvised explosive devices, which have been common sources of injury 
in these conflicts, appear to be somewhat different from the effects of 
brain trauma seen from other sources of injury. VA proposes to amend 
the criteria for rating residuals of TBI to update them in light of 
current knowledge of the condition.
    We propose changing the title of diagnostic code 8045 from ``Brain 
disease due to trauma'' to ``Residuals of traumatic brain injury 
(TBI),'' which reflects modern terminology for this condition.
    TBI is an injury to the brain from an external force that results 
in immediate effects such as loss or alteration of consciousness, 
amnesia, and sometimes neurological impairments. These abnormalities 
may all be transient, but more prolonged or even permanent problems 
with a wide range of impairment in such areas as physical, mental, and 
emotional/behavioral functioning may occur. TBI is classified as mild, 
moderate, or severe at, or close to, the time of the original injury, 
and while this classification will often

[[Page 433]]

correspond to the future level of functional impairment, that will not 
always be the case. This original designation as to severity of the 
original injury does not change, whatever the speed or extent of 
recovery, or the long-term disabling effects. Therefore, it does not 
affect the rating assigned under diagnostic code 8045. We propose to 
include the information that ``mild,'' ``moderate,'' and ``severe'' 
refer to a classification of TBI at, or close to, the time of injury 
rather than to the current level of functioning in the regulation 
itself to make it clear to raters that these designations that may 
appear in medical records refer only to the initial evaluation and not 
to current functioning.
    We propose to provide guidance for the evaluation of the most 
common, but not all possible, residuals of TBI. These residuals fall 
into three main areas of dysfunction: Cognitive, emotional/behavioral, 
and physical. In addition, a cluster of largely subjective symptoms 
(symptoms cluster) falling into these categories may develop following 
TBI.
    This proposed rule provides several sets of guidelines and criteria 
for the evaluation of TBI residuals because of the breadth of the 
possible effects. These include guidance on evaluating physical 
(neurologic) residuals, criteria for evaluating cognitive impairment, 
criteria for evaluating the symptoms cluster that sometimes follows TBI 
(sometimes referred to as post-concussion syndrome (PCS)), and guidance 
on evaluating emotional/behavioral dysfunction.

Evaluating Physical Dysfunction

    In the current schedule, under diagnostic code 8045, purely 
neurological disabilities following brain trauma, such as hemiplegia, 
epileptiform seizures, facial nerve paralysis, etc., are rated under 
the diagnostic codes dealing with the specific disabilities, using a 
hyphenated code to indicate the rating criteria used. We propose 
deleting the discussion of the use of hyphenated codes because that use 
is explained in 38 CFR 4.27, ``Use of diagnostic code numbers,'' and 
therefore need not be repeated here.
    When the brain is injured, almost any function of the body can be 
affected, depending on the location, type, and severity of the injury. 
We propose to provide a list of the most common, but not all possible, 
physical (neurological) problems that may be seen after TBI. These 
problems are motor and sensory dysfunction, including pain, of the 
extremities and face; visual impairment; hearing loss and tinnitus; 
loss of sense of smell and taste; seizures; gait, coordination, and 
balance problems; speech and other communication difficulties, 
including aphasia and related disorders, and dysarthria; neurogenic 
bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve 
dysfunctions; and endocrine dysfunctions. We propose to rate each 
condition separately evaluated under an appropriate diagnostic code, as 
long as the same signs and symptoms are not used to support more than 
one evaluation, and to combine those evaluations under the provisions 
of 38 CFR 4.25 (Combined ratings table). Residuals that are reported 
but not mentioned on this list would be evaluated under the most 
appropriate diagnostic code.
    We are also proposing to direct raters to consider special monthly 
compensation for such problems as loss of use of an extremity, certain 
sensory impairments, bowel and bladder impairments, erectile 
dysfunction, the need for aid and attendance (including when assistance 
or supervision is needed on the basis of cognitive impairment), and 
being housebound.

Evaluating Emotional/Behavioral Dysfunction and Comorbid Mental 
Disorders

    Comorbid (coexisting with another medical disorder) mental 
disorders are common with TBI. Most common is depression, which may 
occur in up to 60 percent of those with TBI, but anxiety and post-
traumatic stress disorder (PTSD) also commonly occur. We propose 
requiring comorbid mental disorders to be evaluated under 38 CFR 4.130 
(Schedule of ratings--mental disorders). Some emotional/behavioral 
symptoms that do not reach the level of a mental disorder, as defined 
in DSM-IV (the 4th edition of the Diagnostic and Statistical Manual of 
Mental Disorders, which is published by the American Psychiatric 
Association), would be evaluated under the criteria provided for the 
evaluation of cognitive impairment or for the evaluation of the 
symptoms cluster, as discussed below, because the symptoms of cognitive 
impairment and the symptoms cluster encompass many emotional/behavioral 
symptoms (Department of Veterans Affairs, Veterans Health Initiative, 
``Traumatic Brain Injury,'' 83-85 (Rodney Vanderploeg, Ph.D., ed., 
2003)).

Evaluating the Symptoms Cluster Due to TBI

    Following TBI, a cluster of symptoms (or syndrome) is commonly 
seen. The symptoms fall into emotional/behavioral, cognitive, and 
physical areas, and may have both neurological and psychological 
components, but there are no objective neurologic findings or 
abnormalities on routine imaging. While in the majority of affected 
people these symptoms resolve in about 3 months, in a small percentage, 
they become permanent. In the medical literature, this symptoms cluster 
is sometimes referred to as post-concussion syndrome (although loss of 
consciousness at the time of the original injury is not a requirement), 
or simply as residuals of mild TBI (Veterans Health Initiative, 
``Traumatic Brain Injury,'' 23-27).
    The symptoms cluster includes such symptoms as headache (migraine 
or tension-type), dizziness or vertigo, fatigue, malaise, sleep 
disturbance, cognitive impairment, difficulty concentrating, delayed 
reaction time, behavioral changes (such as irritability, restlessness, 
apathy, inappropriate social behavior, aggression, impulsivity), 
emotional changes (such as mood swings, anxiety, depression), tinnitus 
or hypersensitivity to sound, hypersensitivity to light, blurred 
vision, double vision, decreased sense of smell and taste, and 
difficulty hearing in noisy situations or with competing sounds in the 
absence of objective hearing loss.
    In the current schedule, under diagnostic code 8045, purely 
subjective complaints such as headache, dizziness, insomnia, etc., 
recognized as symptomatic of brain trauma, are rated 10 percent and no 
more under diagnostic code 9304. Furthermore, this 10-percent rating is 
not combined with any other rating for a disability due to brain 
trauma, and ratings in excess of 10 percent for brain disease due to 
trauma under diagnostic code 9304 are not assignable in the absence of 
a diagnosis of multi-infarct dementia associated with brain trauma.
    This guidance about evaluating subjective complaints after brain 
trauma is at least 45 years old and seems to reflect views that were 
once prevalent, that these symptoms might be due to hysteria or 
malingering. In recent years, abnormalities of the brain following mild 
TBI have been reported on the basis of the following types of special 
studies: Neuropathologic, neurophysiologic, neuroimaging, and 
neuropsychologic. Current medical thinking is that these symptoms may 
be due to subtle brain pathology following trauma that was undetectable 
on previously available studies. These symptoms may be more than 10-
percent disabling. Therefore, we propose replacing the current guidance 
concerning the evaluation of subjective complaints after brain trauma 
under diagnostic code 8045 with a set of

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criteria to evaluate this symptoms cluster, with evaluation levels of 
20, 30, and 40 percent.
    We propose to require that for evaluation under the new criteria, 
at least three of the symptoms listed above be present. If there are 
nine or more of the listed symptoms, 40 percent would be assigned; if 
there are five to eight of the listed symptoms, 30 percent would be 
assigned; and if there are three or four of the listed symptoms, 20 
percent would be assigned. These levels of evaluation are consistent 
with the range of disability that may result from these symptoms and 
would promote consistent evaluations.
    If, on the other hand, there is a definite diagnosis that includes 
one or more of these symptoms, such as migraine (which is common after 
TBI) or Meniere's syndrome (which has symptoms of tinnitus, vertigo, 
fluctuating hearing loss, and a sense of fullness in the ear), it would 
be separately evaluated. If there are at least 3 remaining symptoms, 
they would be evaluated under the criteria for evaluating the symptoms 
cluster.

Evaluating Cognitive Impairment

    Cognitive impairment is defined as decreased memory, concentration, 
attention, and executive functions of the brain. Executive functions 
are speed of information processing, goal setting, planning, 
organizing, prioritizing, self-monitoring, problem solving, judgment, 
decision making, spontaneity, and flexibility in changing actions when 
they are not productive. Not all of these brain functions may be 
affected in a given individual with cognitive impairment, and some 
functions may be affected more severely than others. In a given 
individual, symptoms may fluctuate in severity from day to day. 
Cognitive impairment of varying degrees is most common and most severe 
following moderate or severe TBI. Therefore, primarily those who 
experienced a moderate or severe TBI would require evaluation under 
these criteria. However, an individual with mild TBI may also have 
these conditions.
    The effects of cognitive impairment are numerous and far reaching 
with profound effects on many areas of functioning: mental, physical, 
behavioral, and emotional. Some of the major functional effects of 
cognitive impairment can be found at https://grants.nih.gov/grants/
guide/pa-files/PA-97-050.html, https://web.uccs.edu/dsimons/
cognitive%20impairment%20handouts.pdf, and https://www.guideline.gov/
summary/summary.aspx?ss=15&doc_id=3508&nbr=2734. We propose to provide 
criteria that take into account 11 of the common major effects of 
cognitive impairment. These effects or facets of cognitive impairment 
are work or school; memory, attention, concentration; activities of 
daily living (ADLs); judgment; supervision for safety; appropriate 
response in social situations; orientation; motor activity (with intact 
motor and sensory system); visual-spatial function; other 
neurobehavioral effects; and speech and language disorders.
    There is a wide variation in the occurrence and severity of 
cognitive impairments. Some individuals may have impairments in some 
facets but not others, some individuals may have impairments in all 
facets, and some functions affected by cognitive impairment may be 
impaired more severely than others in a given individual (for example, 
one may have severe speech and other communication problems but no 
problem with activities of daily living, while another may have no 
problem with speech, but considerable difficulty with ADLs and other 
facets). Using a standard set of evaluation criteria by assigning a 
specific level of evaluation for a standard set of signs or symptoms 
would disadvantage veterans who do not have the particular signs and 
symptoms in the standard set chosen, but who have equally disabling 
signs and symptoms of cognitive impairment. On the other hand, it would 
be too burdensome to include criteria for all possible signs and 
symptoms of cognitive impairment. Therefore, we propose using the table 
we have developed for evaluating cognitive impairment that includes the 
11 most important types or facets of impairment, titled ``EVALUATION OF 
COGNITIVE IMPAIRMENT UNDER DIAGNOSTIC CODE 8045.''
    In addition, we propose providing separate criteria, representing 
logical increments of functioning for each facet, for assessing the 
severity of each of these 11 common facets of impairment following TBI. 
Scores of severity for each facet would range from 0 to 4, although not 
all facets would have all 5 levels of severity. For example, for ADLs, 
a score of 0 would be assigned if the individual is able to perform all 
activities of daily living without assistance. However, if some 
assistance is needed for ADLs, even part of the time, a level of 1 or 2 
would be too low for such a substantial impairment. Therefore, if the 
individual requires assistance with activities of daily living some of 
the time (but less than half of the time), a score of 3 would be 
assigned, and if the individual requires assistance with activities of 
daily living most or all of the time, a score of 4 would be assigned. 
For the ``judgment'' facet, a score of 0 would be assigned for 
``Normal.'' A score of 1 would be assigned for ``Mildly impaired.'' A 
score of 2 would be assigned for ``Moderately impaired.'' A score of 4 
would be assigned for ``Severely impaired.'' Note that there would be 
no score of 3 for judgment.
    The rater would assign the appropriate score from 0 to 4 for each 
facet, based on the information about the severity of impairment for 
each facet that has been provided (on the disability examination 
report). The rater would then add only the 3 highest scores and divide 
that sum by 3 to determine the overall score for cognitive impairment, 
that is, 0, 1, 2, 3, or 4. Numbers between whole numbers would be 
rounded to the nearest whole number. For example, scores of 1.0, 1.1, 
1.2, 1.3, and 1.4 would all be rounded to 1, while scores of 1.5, 1.6, 
1.7, 1.8, and 1.9 would all be rounded to 2. The percentage evaluations 
available for cognitive impairment would be 0, 10, 40, 70, and 100 
percent. A score of 1 would equate to an evaluation of 10 percent, a 
score of 2, to 40 percent, a score of 3, to 70 percent, and a score of 
4, to 100 percent. As in all cases, per 38 CFR 4.31 (0 percent 
evaluations), an evaluation of 0 percent would be assigned if the score 
is below 1, after rounding.
    Using the three most impaired facets of functioning balances the 
problems of using only one or two facets, which would result in a 
limited view of overall functioning, and using all 11 facets, which 
would cause the better areas of functioning to dilute the more severely 
impaired ones, and would result in an impression of better overall 
functioning than is actually present.
    The proposed criteria are long and complex. To assist the rater, we 
propose providing the 11 facets, the levels of impairment, and the 
criteria for each level in the table, ``Evaluation of Cognitive 
Impairment Under Diagnostic Code 8045.'' Because of the length of the 
table, we are not repeating it in this summary.

Note 1--Cognitive Impairment and Comorbid Mental Disorder

    We also propose adding two notes under the cognitive impairment 
criteria for further clarification. Note 1 would explain the 
evaluation process when both cognitive impairment and one or more 
comorbid mental disorders are present, in which case there may be an 
overlap of signs and symptoms. In such cases, two evaluations, one 
under the

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cognitive impairment criteria and another under the General Rating 
Formula for Mental Disorders, based on the same findings would not be 
assigned. If the signs and symptoms of the mental disorder(s) and of 
cognitive impairment cannot be clearly separated, a single evaluation 
either under the General Rating Formula for Mental Disorders or under 
the evaluation criteria for cognitive impairment, whichever provides 
the better assessment of overall impaired functioning due to both 
conditions, would be assigned. If the signs and symptoms are clearly 
separable, separate evaluations for the mental disorder(s) and for 
cognitive impairment would be assigned.

Note 2--Prohibition of Evaluation Under Cognitive Impairment 
Criteria and Under the Symptoms Cluster

    Note 2 would point out that cognitive impairment may not 
be evaluated both under the cognitive impairment criteria and as part 
of the symptoms cluster because this would constitute pyramiding. In 
addition, cognitive impairment encompasses many more symptoms than are 
specifically listed in the rating table for evaluation of cognitive 
impairment, including some of the subjective symptoms in the symptoms 
cluster. Therefore, if evaluation is made under the cognitive 
impairment criteria, no evaluation would be assigned for the symptoms 
cluster. When cognitive impairment is present, it would be evaluated 
either as part of the symptoms cluster, if cognitive impairment and at 
least 2 of the additional cluster symptoms listed are present, or under 
the cognitive impairment criteria, whichever method of evaluation is 
more advantageous to the veteran.

Note 3--TBI That Is Unclassified as to Severity

    We propose adding a third note to direct raters to evaluate under 
the set of criteria that is most in accord with the reported residuals, 
regardless of whether a classification of the severity of TBI (mild, 
moderate, or severe) determined at, or close to, the time of injury is 
available. In other words, if subjective symptoms are the primary 
residuals, evaluation would be made under the criteria for evaluating 
the symptoms cluster. If cognitive impairment alone is diagnosed, 
evaluation would be made instead under the criteria for evaluating 
cognitive impairment. In any case, physical (neurologic) residuals 
would be evaluated as directed under diagnostic code 8045, and comorbid 
mental disorders would be evaluated as directed under Sec.  4.130.

Applicability Date

    VA proposes to make the provisions of this rule applicable to all 
applications for benefits received by VA on or after the effective date 
of this rule. A veteran whose residuals of TBI are rated under a prior 
version of Sec.  4.124a, diagnostic code 8045, will be permitted to 
request review under the new criteria, irrespective of whether his or 
her disability has worsened since the last review. VA would review that 
veteran's disability rating to determine whether the veteran may be 
entitled to a higher disability rating under the provisions established 
by this rulemaking. The effective date of any award of an increase in 
disability compensation based on the new criteria would be no earlier 
than the effective date of the new criteria. The effective date of an 
award would be decided under the current regulations regarding 
effective dates for increases in disability compensation, 38 CFR 3.400, 
etc. and 38 CFR 3.114, if applicable, would be considered. We propose 
adding this information under diagnostic code 8045 as Note 4 
to insure veterans are fully notified of the availability of the 
review.
    We propose establishing this process for veterans potentially 
affected by this rulemaking in order to ensure that veterans, 
especially those wounded during Operation Enduring Freedom or Operation 
Iraqi Freedom, are compensated as fully as possible for their wounds.

Benefits Costs

    Two groups of veterans may be affected by this regulation change. 
The first group is those veterans who will come on the rolls in the 
future. VA also anticipates some current TBI beneficiaries will reopen 
their claims. Future caseload estimates are based on historical trends 
of service connected accessions related to TBI by degree of disability. 
VA identified the potential population of reopened claims based on 
current beneficiaries on the rolls with a combined evaluation that 
included a rating for TBI. Average monthly payments for each disability 
rating were applied to calculate the benefits cost. The assumptions 
used to generate the affected population are based on historical 
caseload trends and are not based on DoD information, nor should they 
be construed to imply any future DoD policy decisions.
    VA estimates the total caseload affected for years 2008-2017 as 
follows: 2,846, 3,546, 3,746, 3,946, 4,146, 4,343, 4,546, 4,746, 4,946, 
and 5,146. Benefits costs ($ in millions) associated with the caseload 
for the same time period are as follows: $3.6, $10.1, $10.1, $11.1, 
$12.1, $13.1, $14.2, $15.3, $16.5, and $17.7 for a 10-year total of 
$123.8 million over 10 years.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. This proposed rule would govern disability ratings in 
individual cases and would not directly affect small entities. 
Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is 
exempt from the initial and final regulatory flexibility analysis 
requirements of sections 603 and 604.

Executive Order 12866--Regulatory Planning and Review

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB), as any regulatory action 
that is likely to result in a rule that may: (1) Have an annual effect 
on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined, and it has been 
determined to be a significant regulatory action under Executive Order 
12866

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because it is likely to result in a rule that may raise novel legal or 
policy issues arising out of legal mandates, the President's 
priorities, or principles set forth in the Executive Order.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any 1 year. This proposed rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this proposal are 64.104, Pension for Non-Service-Connected 
Disability for Veterans, and 64.109, Veterans Compensation for Service-
Connected Disability.

List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

    Approved: November 16, 2007.
Gordon H. Mansfield,
Acting Secretary of Veterans Affairs.
    For the reasons set out in the preamble, 38 CFR part 4, subpart B, 
is proposed to be amended as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

    1. The authority citation for part 4 continues to read as follows:

    Authority: 38 U.S.C. 1155, unless otherwise noted.

Subpart B--Disability Ratings

    2. In Sec.  4.124a, in the table entitled, ``Organic Diseases Of 
The Central Nervous System'', the entry for 8045 is revised in its 
entirety and a new table titled ``Evaluation Of Cognitive Impairment 
Under Diagnostic Code 8045'' is added after the ``Organic Diseases Of 
The Central Nervous System'' table, to read as follows:


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

* * * * *

             Organic Diseases Of The Central Nervous System
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
8045 Residuals of traumatic brain injury (TBI):
    There are three main areas of dysfunction that may result
     from TBI and require evaluation: Cognitive, emotional/
     behavioral, and physical effects. In addition, a cluster of
     largely subjective symptoms, which may include Cognitive,
     emotional/behavioral, and physical symptoms, may develop
     that may also require evaluation. ``Mild,'' ``moderate,''
     and ``severe'' refer to a classification of TBI at, or
     close to, the time of injury rather than to the current
     level of functioning. This classification does not affect
     the rating assigned under diagnostic code 8045.............
    Evaluate cognitive impairment under the criteria in the
     table titled ``Evaluation Of Cognitive Impairment Under
     Diagnostic Code 8045.''
    Evaluate the symptoms cluster that sometimes follows TBI
     under the set of criteria for evaluating the symptoms
     cluster due to TBI provided as part of the rating criteria
     under diagnostic code 8045.................................
    Evaluate emotional/behavioral dysfunction under Sec.   4.130
     (Schedule of ratings--mental disorders) when there is a
     diagnosis of a mental disorder. When there is no diagnosis
     of a mental disorder, evaluate symptoms under the criteria
     in the table titled ``Evaluation Of Cognitive Impairment
     Under Diagnostic Code 8045'' or under the criteria for
     evaluation of the symptoms cluster due to TBI..............
    Evaluate physical (neurological) dysfunction based on the
     following list, under an appropriate diagnostic code, as
     applicable.................................................
------------------------------------------------------------------------

    Motor and sensory dysfunction, including pain, of the extremities 
and face; visual impairment; hearing loss and tinnitus; loss of sense 
of smell and taste; seizures; gait, coordination, and balance problems; 
speech and other communication difficulties, including aphasia and 
related disorders, and dysarthria; neurogenic bladder; neurogenic 
bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and 
endocrine dysfunctions.

    These lists do not encompass all possible residuals of TBI. For 
residuals not listed here that are reported on an examination, evaluate 
under the most appropriate diagnostic code. Evaluate each condition 
separately, as long as the same signs and symptoms are not used to 
support more than one evaluation, and combine the evaluations for each 
separately rated condition under Sec.  4.25. Consider special monthly 
compensation for such problems as loss of use of an extremity, certain 
sensory impairments, bowel and bladder impairments, erectile 
dysfunction, the need for aid and attendance (including when assistance 
or supervision is needed on the basis of cognitive impairment), and 
being housebound.
Evaluation of Symptoms Cluster due to TBI
    A cluster of symptoms, physical, cognitive, and emotional/
behavioral, often occurs following TBI. There are usually no objective 
neurologic findings or abnormalities on routine imaging. While in the 
majority of affected people this cluster of symptoms resolves in about 
3 months, in a small percentage, the symptoms become permanent. In the 
medical literature, this symptoms cluster may be referred to as post-
concussion syndrome, or simply as residuals of mild TBI. For evaluating 
such residuals of TBI under the criteria below, at least three of the 
following symptoms must be present: Headache (migraine or tension-
type), dizziness or vertigo, fatigue, malaise, sleep disturbance, 
cognitive impairment, difficulty concentrating, delayed reaction time, 
behavioral changes (such as irritability, restlessness, apathy, 
inappropriate social behavior, aggression, impulsivity), emotional 
changes (such as mood swings, anxiety, depression), tinnitus or 
hypersensitivity to sound, hypersensitivity to light, blurred vision, 
double vision, decreased sense of smell and taste, and difficulty 
hearing in noisy situations or with competing sounds in the absence of 
objective hearing loss.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
If there is a definite diagnosis of a condition that includes
 one or more of these symptoms, such as migraine headache or
 Meniere's disease, evaluate that condition separately under the
 appropriate diagnostic code and evaluate the remaining symptoms
 based on the following criteria, as long as there are at least
 three symptoms remaining.
    With nine or more of the listed symptoms....................      40
    With five to eight of the listed symptoms...................      30

[[Page 437]]

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

Evaluation of Cognitive Impairment
    Cognitive impairment is defined as decreased memory, concentration, 
attention, and executive functions of the brain. Executive functions 
are speed of information processing, goal setting, planning, 
organizing, prioritizing, self-monitoring, problem solving, judgment, 
decision making, spontaneity, and flexibility in changing actions when 
they are not productive. Not all of these brain functions may be 
affected in a given individual with cognitive impairment, and some 
functions may be affected more severely than others. In a given 
individual, symptoms may fluctuate in severity from day to day.

These types of losses can have profound effects on many areas of 
functioning: mental, physical, behavioral, and emotional. Cognitive 
impairment of varying degrees is common after TBI.
The table titled ``EVALUATION OF COGNITIVE IMPAIRMENT UNDER DIAGNOSTIC 
CODE 8045'' contains 11 common facets of cognitive impairment with 
levels of impairment for each ranging from 0 to 4, with 4 representing 
the most severe level. Not all facets have criteria for every level 
from 0 to 4. Add the 3 highest numbers from 0 to 4 assigned to facets 
of cognitive impairment, divide that sum by 3, and round to the nearest 
whole number (for example, 1.0, 1.1, 1.2, 1.3, and 1.4 are rounded to 
1, while 1.5, 1.6, 1.7, 1.8, and 1.9 are rounded to 2). Once the whole 
number from 0 to 4 has been calculated, assign the percentage 
evaluation as follows: 0 = 0%; 1 = 10%; 2 = 40%; 3 = 70%; and 4 = 100%.

    Note (1): When both cognitive impairment and one or more 
comorbid mental disorders are present, there may be an overlap of 
signs and symptoms. In such cases, do not assign two evaluations, 
one under the cognitive impairment criteria and another under the 
General Rating Formula for Mental Disorders, based on the same 
findings. If the signs and symptoms of the mental disorder(s) and of 
cognitive impairment cannot be clearly separated, assign a single 
evaluation either under the General Rating Formula for Mental 
Disorders or under the evaluation criteria for cognitive impairment, 
whichever provides the better assessment of overall impaired 
functioning due to both conditions. However, if the signs and 
symptoms are clearly separable, assign separate evaluations for the 
mental disorder(s) and for cognitive impairment.


    Note (2): Do not assign separate evaluations for cognitive 
impairment and for the symptoms cluster due to TBI; rather, assign 
one or the other, whichever results in a higher evaluation. However, 
separate evaluations may be assigned for cognitive impairment or for 
the symptoms cluster, and for other physical (neurological) 
abnormalities or comorbid mental disorders if the same signs and 
symptoms are not used to support more than one evaluation.


    Note (3): Whether or not a classification of the severity of TBI 
(mild, moderate, or severe) determined at, or close to, the time of 
injury is available, evaluate under the set of criteria that is most 
in accord with the reported residuals. If a cluster of subjective 
symptoms is the primary residual, evaluate under the criteria for 
symptoms cluster due to TBI. If cognitive impairment is diagnosed, 
evaluate under the criteria for cognitive impairment if it is the 
only residual, or under either the criteria for cognitive impairment 
or under the symptoms cluster if there are at least 2 other residual 
subjective symptoms. In any case, evaluate physical (neurologic) 
residuals and comorbid mental disorders as directed under diagnostic 
code 8045.


    Note (4): A veteran whose residuals of TBI are rated under a 
version of Sec.  4.124a, diagnostic code 8045, in effect prior to 
[insert date 30 days after date of publication of the final rule in 
the Federal Register], can request review under diagnostic code 
8045, irrespective of whether his or her disability has worsened 
since the last review. VA will review that veteran's disability 
rating to determine whether the veteran may be entitled to a higher 
disability rating under diagnostic code 8045. A request for review 
pursuant to this rulemaking will be treated as a claim for an 
increased rating for purposes of determining the effective date of 
an increased rating awarded as a result of such review; however, in 
no case will the award be effective before [insert date 30 days 
after date of publication of the final rule in the Federal 
Register]. For the purposes of determining the effective date of an 
increased rating awarded as a result of such review, VA will apply 
the provisions of 38 CFR 3.114, if applicable.

* * * * *

      Evaluation of Cognitive Impairment Under Diagnostic Code 8045
------------------------------------------------------------------------
     Facets of cognitive       Level of
         impairment           impairment             Criteria
------------------------------------------------------------------------
Work or school..............           0  Able to work or attend school
                                           at a level equivalent to that
                                           prior to injury with no
                                           special accommodation, and
                                           without difficulty.
                                       1  Able to work or attend school
                                           at a level equivalent to that
                                           prior to injury with no
                                           special accommodation, and
                                           with only minor difficulty,
                                           mainly at times of increased
                                           duties or demands.
                                       2  Able to work or attend school,
                                           but requires some
                                           accommodation (for example,
                                           may need special environment,
                                           special equipment, or closer
                                           supervision).
                                       3  Able to work or attend school,
                                           but only in a situation with
                                           decreased demands compared to
                                           pre-injury employment or
                                           school or in a sheltered
                                           workplace.
                                       4  Unable to work or attend
                                           school.
Memory, attention,                     0  No complaints of memory loss
 concentration.                            and no objective evidence of
                                           memory loss.
                                       1  Mildly impaired. Any
                                           combination of memory loss
                                           (although memory tests on
                                           exam are normal), occasional
                                           difficulty following a
                                           conversation, occasional
                                           difficulty recalling recent
                                           conversations, occasional
                                           difficulty remembering names
                                           of new acquaintances,
                                           occasional difficulty finding
                                           words, misplaces items.
                                       2  Any combination of mild
                                           impairment of memory (which
                                           must be objectively shown),
                                           mildly impaired attention,
                                           mildly impaired
                                           concentration, difficulty
                                           following complex
                                           instructions, easily
                                           distractible, poor retention
                                           of written material,
                                           difficulty multi-tasking,
                                           problems planning, problems
                                           organizing, difficulty
                                           completing tasks.
                                       3  Any combination of moderately
                                           impaired memory, attention,
                                           concentration, or executive
                                           functions.
                                       4  Any combination of severely
                                           impaired memory, attention,
                                           concentration, or executive
                                           functions.
ADLs (activities of daily              0  Able to perform all activities
 living).                                  of daily living without
                                           assistance.
                                       3  Requires assistance with
                                           activities of daily living
                                           some of the time (but less
                                           than half of the time).
                                       4  Requires assistance with
                                           activities of daily living
                                           most or all of the time.
Judgment....................           0  Normal.

[[Page 438]]

 
                                       1  Mildly impaired.
                                       2  Moderately impaired.
                                       4  Severely impaired.
Supervision for safety......           0  Does not need supervision for
                                           safety, even in risky
                                           situations.
                                       2  Rarely or occasionally needs
                                           supervision for safety, but
                                           only for risky activities.
                                       3  Often requires supervision for
                                           safety (but less than half of
                                           the time).
                                       4  Requires supervision for
                                           safety most or all of the
                                           time.
Appropriate response in                0  Appropriate response in social
 social situations.                        situations always.
                                       1  Appropriate response in social
                                           situations almost always.
                                       2  Inappropriate response in
                                           social situations much of the
                                           time.
                                       3  Inappropriate response in
                                           social situations most or all
                                           of the time.
Orientation.................           0  Always oriented to person,
                                           time, and place.
                                       2  Oriented to person and time;
                                           occasional or rare
                                           disorientation to place.
                                       3  Sometimes disoriented to time
                                           or place.
                                       4  Often or always disoriented,
                                           especially to time or place.
Motor activity (with intact            0  Motor activity normal.
 motor and sensory system).
                                       1  Motor activity normal most of
                                           the time. May be slowed at
                                           times.
                                       2  Motor activity mildly
                                           decreased due to apraxia
                                           (inability to perform
                                           previously learned motor
                                           activities, despite normal
                                           motor function), or with
                                           moderate slowing.
                                       3  Motor activity moderately
                                           decreased due to apraxia.
                                       4  Motor activity severely
                                           decreased due to apraxia.
Visual-spatial function.....           0  Normal.
                                       1  Rare indication of slight
                                           impairment, such as getting
                                           lost in unfamiliar
                                           surroundings.
                                       2  Mildly impaired. May get lost
                                           in unfamiliar surroundings,
                                           occasional difficulty
                                           recognizing faces.
                                       3  Moderately impaired. May get
                                           lost even in familiar
                                           surroundings, frequent
                                           difficulty recognizing faces.
                                       4  Severely impaired. May be
                                           unable to touch or name own
                                           body parts when asked by the
                                           examiner, identify the
                                           relative position in space of
                                           two different objects, copy
                                           sentences, read maps, or find
                                           way from one room to another.
Other neurobehavioral         ..........  Symptoms: Physically
 effects.                                  aggressive, verbally
                                           aggressive, impulsive,
                                           uninhibited, sleep problems,
                                           apathetic, inflexible,
                                           fatigability, mood swings,
                                           lack of motivation, impaired
                                           awareness of disability.
                                       0  None of these effects.
                                       1  One or two of these effects.
                                       2  Three to five of these
                                           effects.
                                       3  Six or more of these effects.
Speech and language                    0  Able to communicate by spoken
 disorders.                                and written language, and to
                                           comprehend spoken and written
                                           language.
                                       1  Impaired articulation for some
                                           words, but speech is
                                           understandable, or
                                           comprehension of either
                                           spoken language, written
                                           language, or both, is only
                                           occasionally impaired.
                                       2  Inability to communicate
                                           either by spoken language,
                                           written language, or both,
                                           more than occasionally but
                                           less than half of the time,
                                           or to comprehend spoken
                                           language, written language,
                                           or both, more than
                                           occasionally but less than
                                           half of the time.
                                       3  Inability to communicate
                                           either by spoken language,
                                           written language, or both, at
                                           least half of the time but
                                           not all of the time, or to
                                           comprehend spoken language,
                                           written language, or both, at
                                           least half of the time but
                                           not all of the time.
                                       4  Complete inability to
                                           communicate either by spoken
                                           language, written language,
                                           or both, or to comprehend
                                           spoken language, written
                                           language, or both.
------------------------------------------------------------------------

* * * * *
 [FR Doc. E7-25522 Filed 1-2-08; 8:45 am]
BILLING CODE 8320-01-P