VA Rule Changes for ALS, TBI and Scars

brianwl

PEB Forum Regular Member
PEB Forum Veteran
Got this from VBN and thought I'd pass it along here.


I want to preface my remarks by stating that I have not been on the board as regularly as I had been in the past and am unaware what (if any) discussion has already been provided on these topics but based on Cruiser's response to my e-mail I'm guessing most of you are unaware of this information. I wanted to share some recent changes with everyone to make sure that the information get out to all who may be newly eligible or entitled to increased compensation for these disabilities. There were so many little tidbits of info that I've even had to edit this a couple of times to give the regulatory backing and not just an "adder said-so" moment. Hope this helps you or someone you know!!!!

1. Amyotrophic lateral sclerosis (Lou Gehrig's disease) is now recognized as presumptive to military service for ALL veterans. If you know a veteran that has this disability, please direct them to the nearest CVSO, VSO, or VA facility to file a claim ASAP.

§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))


2. The regulatory criteria for evaluating scars has been updated and diagnostic code (DC) 7803 has been eliminated. I will post the entire change below, but the biggest impact this change may have is to those of you (or veterans you know) who have multiple painful scars under DC 7804. Depending on how their scars were evaluated, they may be entitled to a boost in their disability rating. Share this information with them and let them decide if it is worth pursuing.

§4.118 Schedule of ratings-skin.

A veteran who VA rated under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 before October 23, 2008 can request review under diagnostic codes 7800, 7801, 7802, 7804, and 7805, irrespective of whether the veteran's disability has increased 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 codes 7800, 7801, 7802, 7804, and 7805. A request for review pursuant to this rulemaking will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008.

Rating

7800 Burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck:

With visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features

(nose, chin, forehead, eyes (including eyelids), ears (auricles),cheeks, lips), or; with six or more characteristics of disfigurement......................... 80

With visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin,

forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or;with four or five characteristics of disfigurement................................................... 50

With visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin,

forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement.................................................. 30

With one characteristic of disfigurement..................................................................... 10

Note (1) The 8 characteristics of disfigurement, for purposes of evaluation under §4.118, are:

Scar 5 or more inches (13 or more cm.) in length.

Scar at least one-quarter inch (0.6 cm.) wide at widest part.

Surface contour of scar elevated or depressed on palpation.

Scar adherent to underlying tissue.

Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.).

Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.).

Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.).

Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

Note (2) Rate tissue loss of the auricle under DC 6207 (loss of auricle) and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate.

Note (3) Take into consideration unretouched color photographs when evaluating under these criteria.

Note (4):Separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply § 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code.

Note (5):The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation.

With visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features

(nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement......................... 80

7801 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear:

Area or areas of 144 square inches (929 sq. cm.) or greater..................................... 40

Area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.)............................................................... 30

Area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.)............................................. 20

Area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.)........................................................ 10

Note (1): A deep scar is one associated with underlying soft tissue damage.

Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck.

7802 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear:

Area or areas of 144 square inches (929 sq. cm.) or greater........................................ 10

Note (1): A superficial scar is one not associated with underlying soft tissue damage.

Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck.

7804 Scar(s), unstable or painful:

Five or more scars that are unstable or painful............................................................ 30

Three or four scars that are unstable or painful............................................................ 20

One or two scars that are unstable or painful.............................................................. 10

Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.

Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.

Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.

7805 Scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804:

Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.


3. The revised criteria for evaluating TBI was also released on October 23, 2008 and veteran's who are service-connected for post-concussive syndrome or TBI may request that their disability be reviewed in conjunction with the change in criteria to see if a change in disability evaluation is warranted. Many who were evaluated as 10 percent disabled due to subjective symptoms under the old criteria for DC 8045 may be entitled to increased compensation. If you believe a higher evaluation may be warranted for your condition, you should request a review examination for this disability.


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.

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.

8046 Cerebral arteriosclerosis:

Purely neurological disabilities, such as hemiplegia, cranial nerve paralysis, etc., due to cerebral arteriosclerosis will be rated under the diagnostic codes dealing with such specific disabilities, with citation of a hyphenated diagnostic code (e.g., 8046-8207).

Purely subjective complaints such as headache, dizziness, tinnitus, insomnia and irritability, recognized as symptomatic of a properly diagnosed cerebral arteriosclerosis, will be rated 10 percent and no more under diagnostic code 9305. This 10 percent rating will not be combined with any other rating for a disability due to cerebral or generalized arteriosclerosis. Ratings in excess of 10 percent for cerebral arteriosclerosis under diagnostic code 9305 are not assignable in the absence of a diagnosis of multi-infarct dementia with cerebral arteriosclerosis.

Note: The ratings under code 8046 apply only when the diagnosis of cerebral arteriosclerosis is substantiated by the entire clinical picture and not solely on findings of retinal arteriosclerosis.

Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified

Facets of cognitive impairment and other residuals of TBI not Level of otherwise classified impairment
Criteria

Memory, attention,
0 No complaints of impairment of memory, concentration, executive attention, concentration, or executive functions. functions.

1 A complaint of mild loss of memory (such as having difficult 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.

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.

Consciousness

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

DragonFly757

PEB Forum Regular Member
PEB Forum Veteran
Thanks so much for passing this along. I did not realize this was changed and it applies to my husband on many levels. I have printed it out and will be reviewing it thoroughly.

I am curious who to call at the VA to get this re-evaluated? Anyone know?
 
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