Tbi Va Criteria Proposed Changes An-89

[Berta 3,013]

38 CFR Part 3

RIN 2900-AN89


Secondary Service Connection for Diagnosable Illnesses Associated 
With Traumatic Brain Injury

http://www.regulations.gov./#!documentDetail;D=VA-2012-VBA-0029-0001

This is a proposed rule to amend 38 CFR, regarding TBI secondary conditions in part thus:

(d) Traumatic brain injury. (1) In a veteran who has a service-
connected traumatic brain injury, the following shall be held to be the 
proximate result of the service-connected traumatic brain injury (TBI), 
in the absence of clear evidence to the contrary:
    (i) Parkinsonism following moderate or severe TBI;
    (ii) Unprovoked seizures following moderate or severe TBI;
    (iii) Dementias (presenile dementia of the Alzheimer type and post-
traumatic dementia) if manifest within 15 years following moderate or 
severe TBI;
    (iv) Depression if manifest within 3 years of moderate or severe 
TBI, or within 12 months of mild TBI; or
    (v) Diseases of hormone deficiency that result from hypothalamo-
pituitary changes if manifest within 12 months of moderate or severe 
TBI.
    (2) Neither the severity levels nor the time limits in paragraph 
(d)(1) of this section preclude a finding of service connection for 
conditions shown by evidence to be proximately due to service-connected 
TBI. If a claim does not meet the requirements of paragraph (d)(1) with 
respect to the time of manifestation or the severity of the TBI, or 
both, VA will develop and decide the claim under generally applicable 
principles of service connection without regard to paragraph (d)(1).
    (3)(i) For purposes of this section VA will use the following table 
for determining the severity of a TBI:

etc: includes the medical stuff.......

comments are being collected until Feb 8,2013

[Berta 3,013]

To add..........I am always trying to think way out of the box.........

my brain got a little rusty when I left the board for a while in October........

I feel this proposed amendment could ultimately help retirees with CRSC disabilities to get over the 50% SC- CRSC criteria hump, if the VA has lowballed them for TBI residuals in the past as this reg could warrant a potentially higher TBI related rating.............

The VA has certainly learned more about TBI in the past few years and is trying to catch up with what they learned,in my opinion,to properly SC all TBI veterans.

Edited December 31, 2012 by Berta

[john999 700]

Ms Clinton passed out and bumped her head with minor concussion. Now we find that she has a blood clot on her brain. These TBI's are no joke. Do soldiers get that kind of follow-up after being blown-up by an IED. I doubt it. Ten years later they drop dead while eathing a pork chop and nobody knows why. My Father-in-Law had a really bad TBI in WWII. He is dead now. He spent months in a locked ward and got "better". Then his behavior went south and the Marines kicked him out for assulting someone. He was completely crazy and very dangerous at times and normal at other times. He was "shell shocked".

John

[militarynurse 3]

DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 3
RIN 2900–AN89
Secondary Service Connection for
Diagnosable Illnesses Associated With
Traumatic Brain Injury
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
SUMMARY: The Department of Veterans
Affairs (VA) is amending its
adjudication regulations concerning
service-connection. This amendment is
necessary to act upon a report of the
National Academy of Sciences, Institute
of Medicine (IOM), Gulf War and
Health, Volume 7: Long-Term
Consequences of Traumatic Brain
Injury, regarding the association
between traumatic brain injury (TBI)
and five diagnosable illnesses. The
intended effect of this amendment is to
establish that if a veteran who has a
service-connected TBI also has one of
these diagnosable illnesses, then that
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Federal Register /Vol. 77, No. 237 /Monday, December 10, 2012 / Proposed Rules 73367
illness will be considered service
connected as secondary to the TBI.
DATES: Effective Date: Comments must
be received by VA on or before February
8, 2013.
ADDRESSES: Written comments may be
submitted through
www.Regulations.gov; by mail or handdelivery
to Director, Regulations
Management (02REG), Department of
Veterans Affairs, 810 Vermont Ave.
NW., Room 1068, Washington, DC
20420; or by fax to (202) 273–9026.
(This is not a toll free number.)
Comments should indicate that they are
submitted in response to ‘‘RIN 2900–
AN89—Secondary Service Connection
for Diagnosable Illnesses Associated
with Traumatic Brain Injury.’’ Copies of
comments received will be available for
public inspection in the Office of
Regulation Policy and Management,
Room 1063B, between the hours of 8:00
a.m. and 4:30 p.m., Monday through
Friday (except holidays). Please call
(202) 461–4902 for an appointment.
(This is not a toll free number.) In
addition, during the comment period,
comments may be viewed online
through the Federal Docket Management
System (FDMS) at www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Thomas J. Kniffen, Chief, Regulations
Staff (211D), Compensation and Pension
Service, Veterans Benefits
Administration, Department of Veterans
Affairs, 810 Vermont Avenue NW.,
Washington, DC 20420, (202) 461–9739.
(This is not a toll free number.)
SUPPLEMENTARY INFORMATION: This
document proposes to amend VA
adjudication regulations (38 CFR Part 3)
by revising 38 CFR 3.310 to add five
diagnosable illnesses as secondary
conditions which shall be held to be the
proximate result of service-connected
TBI.
Scientific Bases for This Rulemaking
In the National Academy of Science
IOM Report, Gulf War and Health
Volume 7: Long-Term Consequences of
Traumatic Brain Injury, the IOM
concluded there was ‘‘sufficient
evidence of a causal relationship’’ (the
IOM’s highest evidentiary standard)
between moderate or severe levels of
TBI and diagnosed unprovoked
seizures. The IOM found ‘‘sufficient
evidence of an association’’ between
moderate or severe levels of TBI and
parkinsonism; dementias (which VA
understands to include presenile
dementia of the Alzheimer type and
post-traumatic dementia); depression
(which also was associated with mild
TBI); and diseases of hormone
deficiency that may result from
hypothalamo-pituitary changes.
The medical literature that IOM
reviewed included two primary studies
and one secondary study on TBI and
parkinsonism. One primary study
involved 196 Parkinson’s patients living
in Olmstead County, Minnesota, and the
second involved 93 pairs of male twins
who were veterans from World War II.
The secondary study involved 140
civilian Parkinson’s patients in Boston,
Massachusetts, who had suffered a TBI
severe enough to cause loss of
consciousness, blurred or double vision,
dizziness, seizures, or memory loss.
These three studies support a link
between moderate or severe TBI and
parkinsonism.
Medical literature supports a link
between TBI and the two types of
dementias listed above (presenile
dementia of the Alzheimer type and
post-traumatic dementia). Reported
cases show that individuals with TBI
often are diagnosed with dementia at
ages younger than their early 50s and
within 15 years of their injuries. As
classic Alzheimer’s disease strikes
sufferers much later in life, the
dementias suffered by TBI victims are
unlikely to be classic Alzheimer’s
dementias. Classic Alzheimer’s disease
is the most common of many types of
dementia that occur in older adults. It
is difficult to conclude that Alzheimer’s
occurring at ages in the 60s or 70s is
related to a distant TBI.
The IOM reviewed 4 primary studies
of civilians and of troops serving in
World War II and the current conflict in
Iraq and five secondary studies of mood
disorders including major depression.
The primary studies generally
supported an association between mild,
moderate, or severe TBI and major
depression within the first twelve
months after the injury. Current
research does not provide significant
evidence to support association more
than 12 months following mild TBI.
Moderate or severe TBI appears to cause
an elevated risk for depression (up to
50% in some research) for at least the
first 3 years.
The IOM reviewed five studies on TBI
and hypopituitarism, and five studies
on TBI and growth hormone
insufficiency. The studies generally
showed increased risk of those
conditions developing within months
after a moderate or severe TBI and,
although the effects in many cases were
acute and eventually resolved, some
long-term effects were observed. The
medical literature reviewed by IOM
supports a link between TBI and
diseases of hormone deficiency
resulting from hypothalamo-pituitary
changes, when the disease manifests
within 12 months of a moderate or
severe TBI. The presence of other
peripherally-mediated endocrinologic
disorders (including, but not limited to
diabetes mellitus) has no association
with TBI.
After careful review of the findings of
the NAS Report, Gulf War and Health
Volume 7, the Secretary of Veterans
Affairs has determined that the
scientific evidence present in the NAS
Report, Gulf War and Health Volume 7
and other information available to the
Secretary indicates that a revision to VA
regulations to add the five diagnosable
illnesses as secondary conditions is
warranted. The five diagnosable
illnesses to be added are the following:
(1) Parkinsonism following moderate or
severe TBI; (2) unprovoked seizures
following moderate or severe TBI; (3)
dementias (to include presenile
dementia of the Alzheimer type and
post-traumatic dementia) within 15
years of moderate or severe TBI; (4)
depression, if manifest within 3 years of
moderate or severe TBI or within 12
months of mild TBI; and (5) diseases of
hormone deficiency that result from
hypothalamo-pituitary changes manifest
within 12 months of moderate or severe
TBI.
Section 501(a) of title 38, U.S. Code,
establishes the Secretary of Veterans
Affairs’ general rulemaking authority to
prescribe all rules and regulations
which are necessary or appropriate to
carry out the laws administered by VA.
Based on VA’s analysis of the scientific
evidence discussed in the IOM report as
well as the IOM’s finding of sufficient
evidence of relationships between
specific levels of TBI and certain
diagnosable illnesses, and all other
information available to the Secretary,
we propose to amend 38 CFR 3.310 in
order to incorporate five diagnosable
illnesses as secondary conditions that
are the proximate result of serviceconnected
TBI.
The IOM also found associations
between TBI and certain behavioral and
social problems. These include
diminished social relationships,
aggressive behaviors, long-term
unemployment, and premature death.
Under 38 U.S.C. 1110, VA may only
grant service connection ‘‘[f]or disability
resulting from personal injury suffered
or disease contracted in line of duty
* * *’’. Similarly, § 1310(a) states,
‘‘When any veteran dies * * * from a
service-connected or compensable
disability, the Secretary shall pay
dependency and indemnity
compensation to such veteran’s
surviving spouse, children, and
parents.’’ VA does not believe it is
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73368 Federal Register / Vol. 77, No. 237 / Monday, December 10, 2012 / Proposed Rules
necessary to establish new
presumptions of service connection for
these effects because they are not
distinct physical or mental
‘‘disabilities’’ for VA compensation
purposes. However, the behavioral,
social, and occupational effects of TBI
and related service-connected
conditions may be considered in
evaluating the severity of those
conditions for compensation purposes
as provided in provisions of VA’s rating
schedule.
In relevant part, § 3.310(a) states: ‘‘[A]
disability which is proximately due to
or the result of a service-connected
disease or injury shall be service
connected. When service connection is
thus established for a secondary
condition, the secondary condition shall
be considered a part of the original
condition.’’ We propose to revise § 3.310
by adding a new subsection (d)(1) that
lists five diagnosable illnesses as
secondary conditions that shall be held
to be proximate results of serviceconnected
TBI.
VA recognizes that not all those who
suffer a TBI during military service seek
immediate medical assistance and
receive a medical assessment of the
severity of the TBI. Therefore, proposed
paragraph (d)(2) will clarify that neither
severity levels nor time limits for
manifesting secondary conditions as
proximate causes of service-connected
TBI shall preclude a veteran from
establishing direct service connection
under the generally applicable
principles of service connection in 38
CFR 3.303 and 3.304.
Determination of the Severity of a TBI
VA and the Department of Defense
have established a joint set of factors
and criteria for classifying a TBI as mild,
moderate, or severe. The factors and
criteria were created by a team of
physicians from VA and the Department
of Defense who are experts on
diagnosing and treating TBI. The factors
are structural imaging (such as
functional magnetic resonance imaging,
diffusion tensor imaging, positron
emission tomography (PET) scanning),
duration of alteration of consciousness/
mental state, duration of loss of
consciousness, duration of posttraumatic
amnesia, and score on the
Glasgow Coma Scale. See Memorandum
by Asst. Secretary of Defense for Health
Affairs, ‘‘Traumatic Brain Injury:
Definition and Reporting,’’ October 1,
2007. See also Compensation & Pension
Service Training Letter 09–01, January
21, 2009.
We propose to include these severity
criteria as a table in § 3.310(d)(3)(i). We
also propose to explain in paragraph
(d)(3)(ii) that the determination of the
severity level is based on the TBI
symptoms at the time of injury or
shortly thereafter, rather than the
current level of functioning. This
provision is consistent with established
medical principles for assessing the
severity of TBI. See Memorandum by
Asst. Secretary of Defense for Health
Affairs, ‘‘Traumatic Brain Injury:
Definition and Reporting,’’ October 1,
2007. See also Compensation & Pension
Service Training Letter 09–01, January
21, 2009.
Some veterans may not meet all of the
criteria within a particular severity level
or may not have been examined for all
the factors. We believe the simplest,
most efficient, and fairest way to rank
such veterans is to apply two rules: (1)
VA will not require that a TBI meet all
the criteria listed under a certain
severity level to classify the TBI under
that severity level; and (2) If a TBI meets
the criteria relating to loss of
consciousness, post-traumatic amnesia,
or Glasgow Coma Scale in more than
one severity level, then VA will rank the
TBI at the highest of those levels. We
propose to include these rules in
paragraph (d)(3)(ii).
In some cases, it may not be clinically
possible to determine the severity of a
TBI (e.g., because of a lack of medical
records contemporaneous with the
injury or medical complications (e.g.,
medically induced coma)). In such
cases, § 3.310(d) would not apply and
the veteran’s claim would be processed
under § 3.310(a) which states that
‘‘disability which is proximately due to
or the result of a service-connected
disease or injury shall be service
connected.’’
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 of Veterans Affairs
hereby certifies that this 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
rule would not affect any small entities.
Only VA beneficiaries could be directly
affected. Therefore, pursuant to 5 U.S.C.
605(b), this rule is exempt from the
initial and final regulatory flexibility
analysis requirements of sections 603
and 604.
Executive Orders 13563 and 12866
Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, when regulatory action
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). Executive Order
13563 (Improving Regulation and
Regulatory Review) emphasizes the
importance of quantifying both costs
and benefits, reducing costs,
harmonizing rules, and promoting
flexibility. Executive Order 12866
(Regulatory Planning and Review)
defines a ‘‘significant regulatory action,’’
which requires review by the Office of
Management and Budget (OMB), as
‘‘any regulatory action that is likely to
result in a rule that may: (1) Have an
annual effect on the economy of $100
million or more or adversely affect in a
material way the economy, a sector of
the economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities; (2) Create
a serious inconsistency or otherwise
interfere with an action taken or
planned by another agency; (3)
Materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) Raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
Order.’’
The economic, interagency,
budgetary, legal, and policy
implications of this proposed rule have
been examined and it has been
determined to be a significant regulatory
action under the Executive Order 12866.
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 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 proposed rule are 64.109,
Veterans Compensation for Service-
Connected Disability, and 64.110,
Veterans Dependency and Indemnity
Compensation for Service-Connected
Death.
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Federal Register /Vol. 77, No. 237 /Monday, December 10, 2012 / Proposed Rules 73369
Signing Authority
The Secretary of Veterans Affairs, or
designee, approved this document and
authorized the undersigned to sign and
submit the document to the Office of the
Federal Register for publication
electronically as an official document of
the Department of John R. Gingrich,
Chief of Staff, Department of Veterans
Affairs, approved this document on
December 4, 2012, for publication.
List of Subjects in 38 CFR Part 3
Administrative practice and
procedure, Claims, Disability benefits,
Health care, Veterans, Vietnam.
Dated: December 5, 2012.
Robert C. McFetridge,
Director, Regulation Policy and Management,
Office of the General Counsel, Department
of Veterans Affairs.
For the reasons set out in the
preamble, VA proposes to amend 38
CFR part 3 as follows:
PART 3—ADJUDICATION
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. Revise § 3.310 by adding paragraph
(d), to read as follows:
§ 3.310 Disabilities that are proximately
due to, or aggravated by, service-connected
disease or injury.
* * * * *
(d) Traumatic brain injury. (1) In a
veteran who has a service-connected
traumatic brain injury, the following
shall be held to be the proximate result
of the service-connected traumatic brain
injury (TBI), in the absence of clear
evidence to the contrary:
(i) Parkinsonism following moderate
or severe TBI;
(ii) Unprovoked seizures following
moderate or severe TBI;
(iii) Dementias (presenile dementia of
the Alzheimer type and post-traumatic
dementia) if manifest within 15 years
following moderate or severe TBI;
(iv) Depression if manifest within 3
years of moderate or severe TBI, or
within 12 months of mild TBI; or
(v) Diseases of hormone deficiency
that result from hypothalamo-pituitary
changes if manifest within 12 months of
moderate or severe TBI.
(2) Neither the severity levels nor the
time limits in paragraph (d)(1) of this
section preclude a finding of service
connection for conditions shown by
evidence to be proximately due to
service-connected TBI. If a claim does
not meet the requirements of paragraph
(d)(1) with respect to the time of
manifestation or the severity of the TBI,
or both, VA will develop and decide the
claim under generally applicable
principles of service connection without
regard to paragraph (d)(1).
(3)(i) For purposes of this section VA
will use the following table for
determining the severity of a TBI:
Mild Moderate Severe
Normal structural imaging ...................................................... Normal or abnormal structural imaging Normal or abnormal structural imaging.
LOC = 0–30 min ..................................................................... LOC >30 min and <24 hours ................. LOC >24 hrs.
AOC = a moment up to 24 hrs .............................................. AOC >24 hours. Severity based on other criteria.
PTA = 0–1 day ....................................................................... PTA >1 and <7 days .............................. PTA > 7 days.
GCS = 13–15 ......................................................................... GCS = 9–12 ........................................... GCS = 3–8.
Note: The factors considered are:
Structural imaging of the brain.
LOC—Loss of consciousness.
AOC—Alteration of consciousness/mental state.
PTA—Post-traumatic amnesia.
GCS—Glasgow Coma Scale. (For purposes of injury stratification, the Glasgow Coma Scale is measured at or after 24 hours.)
(ii) The determination of the severity
level under this paragraph is based on
the TBI symptoms at the time of injury
or shortly thereafter, rather than the
current level of functioning. VA will not
require that the TBI meet all the criteria
listed under a certain severity level in
order to classify the TBI at that severity
level. If a TBI meets the criteria relating
to LOC, PTA, or GCS in more than one
severity level, then VA will rank the TBI
at the highest of those levels.
(Authority: 38 U.S.C. 501, 1110 and 1131)
[FR Doc. 2012–29709 Filed 12–7–12; 8:45 am]
BILLING CODE 8320–01–P

[carlie 50]

My 3 TBI's are considered as mild = LOC 30 mins or less.

Within a couple of weeks I began having horrible seizures.

This was in 1978 - no such thing as TBI, but now my comp states

several SC'd condition due to TBI.

[militarynurse 3]

Question is: After this long overdue proposal passes, will the VA take the initiative to self-review all their previous denials of these diagnosable illness claims, ( which will now be considered service connected as secondary to a TBI )?

Or, will the VA require the brain injured veterans to (re)file new claims?

http://www.cdc.gov/traumaticbraininjury/outcomes.html

Did the TBI proposal pass yet?

Edited July 1, 2013 by militarynurse