Judge Says Rate Tbi Under 8045

[mark sr]

im 10% sc for tbi with headaches. took it to bva with my own ime, complete with neuro test. my ime says moderate symptoms memory probs.,headaches. they didnt grant the increase, but the remand says rate the tbi under 8045. does it look like a chance at rating increase under the newer tbi regs? i believe the regs were changed in 08-09? for all you guys headed to bva, i m convinced that an ime is worth every cent !

[carlie]

Here's a research link for you.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files4/1139650.txt

TBI - Prior to October 23, 2008

The Veteran's TBI, previously evaluated as post-concussion headaches, is rated 10 percent disabling from August 8, 2007, to October 23, 2008, under the criteria of 38 C.F.R. § 4.124a, Diagnostic Codes 8045-8100.

The criteria for rating TBIs were revised during the pendency of this appeal. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124, Note (5). For claims received by VA prior to that effective date, a veteran is to be rated under the old criteria for any periods prior to October 23, 2008, but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (Oct. 24, 2008).

In this case, the only time period at issue in the decision portion of this determination is prior to October 23, 2008. As such, the Board will apply only the rating criteria in effect prior to the revision.

Diagnostic Code 8045 states that, for brain disease due to trauma, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207).

Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.