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February 1, 2008

Director, Regulations Management (00REG)

Department of Veterans Affairs

810 Vermont Avenue, NW, Room 1068

Washington, DC 20420

**RE: RIN 2900-AM75---"Schedule for Rating Disabilities; Evaluation of
Residuals of Traumatic Brain Injury (TBI)."**

Dear Director,

These comments in response to the Proposed Rule, are submitted on behalf
of the Wounded Warrior Project, a non-profit, non-partisan organization
dedicated to assisting the men and women of the United States Armed
Forces who have been injured during the current conflicts around the
world. As a result of our direct, daily contact with these wounded
warriors, we have a unique perspective on their needs and the obstacles
they face as they attempt to reintegrate into their communities. 

For the benefit of our comments, WWP has chosen to use the case of SGT
Edward Wade, USA (Ret) and Mrs. Sarah Wade as an example. SGT Wade is a
Veteran of Operation Enduring Freedom and Operation Iraqi Freedom, as
well as a severe explosive blast traumatic brain injury (ebTBI)
survivor. Mrs. Wade is an advocate for Veterans with traumatic brain
injury (TBI), a Policy Intern with The Wounded Warrior Project, in
addition to being SGT Wade's caregiver and case manager, since he was
wounded in an Improvised Explosive Device attack on February 14, 2004.

The Department of Veterans Affairs published a proposed amendment to the
Schedule for Rating Disabilities "that addresses neurological conditions
and convulsive disorders, in order to provide detailed and updated
criteria for evaluating residuals of traumatic brain injury (TBI)" on
January 3, 2008. WWP believe the proposed changes are a significant
improvement on the Schedule for Rating Disabilities (38 CFR, Part 4),
under diagnostic code 8045, Brain disease due to trauma (38 CFR 4.124a),
currently used for evaluating neurological conditions and convulsive
disorders, such as TBI. We do have a few concerns we respectfully wish
to share:

**"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."**

We feel the Schedule should also specifically address Veterans with
resultant impairment from anoxia. In the case of injuries caused by
explosive blasts for example, massive blood loss is common and can cause
damage from lack of oxygen to the brain, as can cardiac arrest. The end
result is brain injury and it occurred from trauma, therefore we believe
individuals with anoxic brain injury (ABI) should be included in the
Proposed Rule.

**"When the brain is injured, almost any function of the body can be
affected... Residuals that are reported but not mentioned on this list
would be evaluated under the most appropriate diagnostic code."**

We are concerned about inconsistencies due to lack of guidelines to
determine what is the "most appropriate" code for residuals not
specifically mentioned in the limited number of diagnostic codes
currently used. For example, spastic hypertonia (SH) is a common
residual of TBI, when there is damage to the brain stem, cerebellum
and/or midbrain, for which there is no specific code. These reflex
centers in the brain are very complex, making it difficult to establish
which nerve pathways are injured, so treatment is extremely complicated.
Pharmaceuticals commonly used to treat SH, increase cognitive impairment
in individuals with TBI. SGT Wade, who has brain stem damage, has
increased difficulty using a prosthetic device to compensate for a
transhumeral amputation, not only because of cognitive impairment, but
also SH. Spasticity has caused muscle contractures, or permanent
shortening, in his shoulder, limiting range of motion in that joint.
Because he is unable to voluntarily relax his residual limb, voluntary
movement and muscle strength are inconsistent. This limits the type of
prosthesis he is able to use, to one model. The proficiency also varies
with the prosthesis he can use, depending on degree of SH, and treatment
with medication is even more debilitating. SGT Wade is not rated for
this residual, temporary loss of use of his remaining limb, nor SH in
his right lower extremity. He is only rated for the amputation, and
lower extremity schrapnel injuries, even though he is more limited in
his ability to compensate for the amputation, and ability to
participation in physical activities, than an individual without TBI.
Some individuals, who are not amputees, are sometimes rated for
paralysis in the effected extremity, because of temporary loss of
voluntary movement. Others are rated for hemi-paralysis, because they
have SH in two right limbs. We feel such inconsistencies need to be
addressed.

**"We are also proposing to direct raters to consider special monthly
compensation for such problems as... the need for aid and attendance
(including when assistance or supervision is needed on the basis of
cognitive impairment)..."**

We cannot praise the Proposed Rule enough in this respect. Individuals
like SGT Wade, who require someone to be available for assistance at all
times, are not compensated adequately. These Veterans would require
residential care otherwise, but are not granted the higher level of aid
in attendance because they do not require daily health-care services
provided in the home by a person licensed to perform these services, or
someone under regular supervision of a licensed health-care
professional. We feel the criteria should be clearly outlined, so
appropriate compensation may be granted in the cases of individuals who
need assistance managing medical care, personal affairs, and require
support outside of the home, to rehabilitate and reintegrate into their
communities. Mrs. Wade, and other caregivers, lose the same amount of
wages, regardless of whether or not the care, case management, personal
assistance, and transportation they provide requires professional
supervision.

Had SGT Wade not sustained a TBI, he would receive a VA rating of 100%
for his other injuries, be capable of earning an income, and Mrs. Wade
would still have full-time employment. Because of his TBI, we do not
have three incomes, but instead are essentially reduced to one. We feel
the compensation scale needs to better reflect the financial impact TBI
has on the entire household.

**"Evaluating the Symptoms Cluster Due to TBI" and "Other
neurobehavioral effects"**

We are concerned the Proposed Rule does not address substantial
disability of residuals that fall short of criteria for a cluster of
symptoms or syndrome. For example, an individual who is "just"
physically aggressive and has sleep problems or is "just" irritable and
lacks motivation, would be considered sub-syndrome for mild traumatic
brain injury (mTBI) or a mental disorder, but could still be a danger to
others or have significant loss of earning capacity. We feel individual
symptoms should be given greater consideration.

In addition, we feel that a rating as low as 10% for mTBI is
inappropriate and does not adequately compensate an individual for their
loss, account for fluctuations in severity, or impact on treatment of
other comorbidities. Someone may be both employable and independent, but
could suffer personality changes or impaired premorbid intelligence. For
other injuries, such as amputation or spinal cord, an individual is
still compensated for loss of quality of life, regardless of residuals,
and we feel mTBI should be compensated similarly. One suggestion would
be to incorporate some sort of base rating, similar to the rating
afforded to those compensated for Muscular Sclerosis, and rate residuals
in addition to this. ebTBI is commonly associated with other
comorbidities such as amputations, fractures, severe burns, soft tissue
schrapnel injuries, and spinal cord injuries. TBI further complicates
treatment strategies for these and other injuries, effecting treatment
outcome. The Proposed Rule needs to reflect broader impact.

**"Evaluating Cognitive Impairment... symptoms may fluctuate in severity
from day to day."**

We feel raters should be given more specific guidelines to account for
fluctuations. Residuals of TBI can be compounded by an unlimited number
of factors, including emotional stress, illness, mental or physical
fatigue, pharmaceuticals, sleep deprivation, and weather conditions. SGT
Wade requires significantly more assistance for weeks post-anesthesia
because of increased memory issues, if he has a fever, takes
antibiotics, anti-inflammatories, decongestants, muscle relaxants, or
pain medication for residuals related to other Service-Connected issues,
he becomes disoriented. We feel his rating should reflect impairments
when they are most severe. This needs to be a factored when raters are
considering special monthly compensation, such as the level of aid and
attendance awarded.

**"The table titled 'EVALUATION OF COGNITIVE IMPAIREMENT UNDER
DIAGNOSTIC CODE 8045'"**

We are concerned with how the rater will obtain the evidence to
determine level of impairment in these 11 common facets. In the case of
an individual like SGT Wade, all 11 should be evaluated by each member
of his recovery team (caregiver/personal attendant, case managers, job
coach, licensed counselor/life skills coach, neuro-opthamologist,
neuropsychiatrist, neuropsychologist, occupational therapist,
physiatrist, physical therapist, and speech pathologist) to get the most
thorough assessment of his capabilities in a variety of settings, not
just a clinic or hospital. An individual who may be functional in an
institutional or structured environment, may not be functional in an
unfamiliar setting. There also need to be guidelines concerning
self-report, to protect individuals who are not competent, have issues
with confabulation, difficulty with spoken language, impaired awareness
of, or are in denial about their disability, and memory loss. Sometimes,
these individuals are questioned by examiners, as happened to SGT Wade
shortly after his injury, and do not always provide the correct
information.

***"Work or school"***

We are concerned with the inconsistencies of Vocational Rehabilitation
(VR&E) being provided to individuals with TBI, specifically those who
are rated unemployable (IU). This needs to be addressed, so the Proposed
Rule does not prohibit access to VR&E, rather encourages individuals to
participate in rehabilitation, and over time achieve gainful employment.

***"Judgment"***

We are concerned the Proposed Rule does not provide specifics
characterizing impaired judgement.

***"Supervision for safety"***

We believe this should encompass not only the safety of the individual,
but others they may come in contact with. Someone who is aggressive,
combative, impulsive and/or uninhibited may require more supervision for
others safety.

**"*Appropriate response in social situations"***

We feel this should also include appropriate response in inter-personal
relationships and impaired ability to perceive and understand the
emotions of others, specifically loved ones. This is an enormous quality
of life issue.

**Conclusion**

The Wounded Warrior Project like to thank you again for allowing us the
opportunity to share our opinion with you. We hope that the Proposed
Rule will lead to more appropriate, consistent and fair ratings for
Veterans with brain injuries. To achieve this, oversight should be
provided to assure this Schedule is updated regularly, as the clinical
syndrome of ebTBI is currently being characterized and the long-term
effects are still unknown. We would be pleased to answer any questions
you may have.

Sincerely,

Meredith Beck

National Policy Director

Wounded Warrior Project

(703)-869-6559

<mbeck@woundedwarriorproject.org>

1605 10^th^ Street South

Arlington, VA 22204