Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations 54693 

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, 

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 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 entitlement 

recipients; 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. 

VA has examined the economic, 

interagency, budgetary, legal, and policy 

implications of this interim final rule 

and has concluded that it is a significant 

regulatory action under Executive Order 

12866 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. 

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 interim 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. The 

rule could affect only VA beneficiaries 

and will not directly affect small 

entities. Therefore, pursuant to 5 U.S.C. 

605(b), this rule is exempt from the 

initial and final regulatory flexibility 

analyses requirements of sections 603 

and 604. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

for this rule are as follows: 64.109, 

Veterans Compensation for ServiceConnected Disability; and 64.110, 

Veterans Dependency and Indemnity 

Compensation for Service-Connected 

Death. 

List of Subjects in 38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, Radioactive 

materials, Veterans, Vietnam. 

Approved: August 1, 2008. 

James B. Peake, 

Secretary of Veterans Affairs. 

■ For the reasons set forth in the 

preamble, 38 CFR part 3 is amended as 

follows: 

PART 3—ADJUDICATION 

Subpart A—Pension, Compensation, 

and Dependency and Indemnity 

Compensation 

■ 1. The authority citation for part 3, 

subpart A continues to read as follows: 

Authority: 38 U.S.C. 501(a), unless 

otherwise noted. 

■ 2. Add § 3.318 to read as follows: 

§ 3.318 Presumptive Service Connection 

for Amyotrophic Lateral Sclerosis. 

(a) Except as provided in paragraph 

(b) of this section, the development of 

amyotrophic lateral sclerosis manifested 

at any time after discharge or release 

from active military, naval, or air service 

is sufficient to establish service 

connection for that disease. 

(b) Service connection will not be 

established under this section: 

(1) If there is affirmative evidence that 

amyotrophic lateral sclerosis was not 

incurred during or aggravated by active 

military, naval, or air service; 

(2) If there is affirmative evidence that 

amyotrophic lateral sclerosis is due to 

the veteran’s own willful misconduct; or 

(3) If the veteran did not have active, 

continuous service of 90 days or more. 

(Authority: 38 U.S.C. 501(a)(1)) 

[FR Doc. E8–21998 Filed 9–22–08; 8:45 am] 

BILLING CODE 8320–01–P 

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-LanguageHearing 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 


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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 serviceconnected 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 (§ 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 (§ 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 


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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 nonneurological 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 postdischarge 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 § 4.28 to be 

a reasonable and appropriate way to 

evaluate many veterans with TBI 

residuals in the immediate postdischarge 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 posttraumatic 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 postdischarge 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 


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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 postconcussion 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. 


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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 


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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 


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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. 


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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 visualspatial 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 extraschedular 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 


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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 serviceconnected 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 


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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. 


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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 healthservice 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 combatrelated 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 

(§ 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 


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under the revised regulation. At a 

minimum, the commenter continued, 

veterans who currently have serviceconnected 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 rerating 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 


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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. 

■ 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 

■ 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 § 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: 

§ 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 § 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 § 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. 


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ORGANIC DISEASES OF THE CENTRAL NERVOUS SYSTEM—Continued 

Rating 

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 § 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 

otherwise classified 

Level of 

impairment Criteria 

Memory, attention, concentration, executive 

functions.

0 No complaints of impairment of memory, 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. 


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Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations 54707 

EVALUATION OF COGNITIVE IMPAIRMENT AND OTHER RESIDUALS OF TBI NOT OTHERWISE CLASSIFIED—Continued 

Facets of cognitive 

impairment and other 

residuals of TBI not 

otherwise classified 

Level of 

impairment Criteria 

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 

motor and sensory 

system).

0 Motor activity normal. 

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. 


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54708 Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations 

EVALUATION OF COGNITIVE IMPAIRMENT AND OTHER RESIDUALS OF TBI NOT OTHERWISE CLASSIFIED—Continued 

Facets of cognitive 

impairment and other 

residuals of TBI not 

otherwise classified 

Level of 

impairment Criteria 

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

coma. 

* * * * * 

■ 3. In Appendix A to Part 4, § 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 

* * * * * 

Sec. Diagnostic 

code No. 

* * * * * 

4.124a ..... 8045 Criterion and 

evaluation October 23, 2008. 

* * * * * 

* * * * * 

■ 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). 

* * * * * 

* * * * * 

■ 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 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 4 

RIN 2900–AM55 

Schedule for Rating Disabilities; 

Evaluation of Scars 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This document amends the 

Department of Veterans Affairs (VA) 

Schedule for Rating Disabilities by 

revising that portion of the Schedule 

that addresses the Skin, so that it more 

clearly reflects our policies concerning 

the evaluation of scars. 

DATES: Effective Date: This amendment 

is effective October 23, 2008. 

Applicability Date: This amendment 

shall apply to all applications for 

benefits received by VA on or after 

October 23, 2008. A veteran whom VA 

rated before such date under diagnostic 

codes 7800, 7801, 7802, 7803, 7804, or 

7805 of 38 CFR 4.118 may request 

review under these clarified criteria, 

irrespective of whether his or her 

disability has worsened since the last 

review. The effective date of any award, 

or any increase in disability 

compensation, based on this 

amendment will not be earlier than the 

effective date of this rule, but will 

otherwise be assigned under the current 

regulations regarding effective dates, 38 

CFR 3.400, etc. 

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: On 

January 3, 2008, VA published in the 

Federal Register (73 FR 428) a proposal 

to amend those portions of the Schedule 

for Rating Disabilities that address the 

Skin, 38 CFR 4.118, by revising the 

guidelines for the evaluation of scars. 

Interested persons were invited to 

submit written comments on or before 

February 4, 2008. We received 

comments from the National 

Organization of Veterans’ Advocates, 

Inc. (NOVA), and Disabled American 

Veterans (DAV). 

NOVA’s Comment 

NOVA addressed a proposed change 

to a note in diagnostic code 7801 that 

would consider the trunk as one area of 

the body. Currently, the note in 

diagnostic code 7801 directs that scars 

on widely separated areas, as on two or 

more extremities or on anterior and 

posterior surfaces of extremities or 

trunk, will be separately rated. We 

proposed to revise this note to clarify 

that if multiple scars are present, VA 

will assign a separate evaluation for 

each affected extremity based on the 

total area of the qualifying scars on that 

extremity, and assign a separate 

evaluation for the trunk based on the 

total area of the qualifying scars on the 

trunk. Qualifying scars under diagnostic 

code 7801 are deep scars that are not 

located on the head, face, or neck. 

NOVA is concerned that the proposed 

change will not adequately compensate 

veterans for scars of the trunk. NOVA 

stated the rationale for the change of 

ensuring that the area of all deep scars 

of the trunk are taken into account was 

inadequate considering that the anterior 

and posterior surfaces of the trunk may 

be the largest separate and distinct areas 

of the body. 

Second, NOVA stated that a scar can 

cross over into more than one separate 

area of the body. In the proposed rule, 

we stated that such a scar would be 

treated as two separate scars to ensure 

that the ratings reflect the disability to 

each distinct area of the body. 

Third, NOVA stated the proposed 

change would potentially result in a 

lower evaluation for a veteran with one 

scar that covers both the anterior and 

posterior trunk. NOVA offers the 

following example: A veteran has one 

30 inch scar that wraps around his 

anterior and posterior trunk, with 15 

square inches on the anterior side and 

15 square inches on his posterior side. 

Under the current diagnostic code, this 

scar would be rated separately at 20 

percent and 20 percent, for a combined 

evaluation of 40 percent. Under the 

proposed change, the veteran would be 


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