Tbi Va Criteria Proposed Changes An-89

[Berta]

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

[roughsoldier]

hello Berta I was wondering if I fall into this situation for 33 years I been fighting the VA for benefits under TBI and in 2008 I was awared 100% for PTSD but I did not file that claim until 1995 but file head injuries in 1980 but the VA for 33 years denied my claim well January, 2013 awared me 10% and 40% August, 2012 which nis only total 30%, In 2008 the VA denied TBI but Approve PTSD 2008 which seperate the claims so I appeal the TBI claim because it goes back 1980, but In my C-file there are one or two document dated 1981 and 1984 which makes reference to the head injuries and there are no more documents until 1995 which they back dated the awared 1995 for both TBI and PTSD I feel asthough VA has low ball me and here is why there are lot of documents in my C-file makes reference about head injuries 1980 to present. There are documents that are blacked out with black marker or records missing or I have other Veterans paperwork miv in with mine in my C-file which I raised this issue with the VA back in 2006 and the nlater on the news watch over the world how the VA was destroying veterans records this would account for why I have very few documents that supports the date and follow up of my TBI claim, and the other reason it took them 32 years to ask for examination in 2012, which they requested six exams but they stated that I have a scar over my right eye which is from the first head injuries and the second head injuries was when I fell off a tank which they stated in there records that a tank is 10ft height which in fact a tank is 26.2ft in height and yes they stated that I substain two head injuries and hearing loss in my right ear I would think two injuries and the hearing loss they accept but did not feel asthough it was service connected because there was nothing in C-file stated that I had head injuries,but yet documents showing that I have complaining non stop for 33 years but did not consider the hearing loss was and is apart of my TBI claim as well, and for all the years and the two injuries and document they could have awared me 60 to 70% instead of 30% which they said my rating will stay at 100% as I stated that PTSD was awared that in 1995 and now in 2013 TBI awared 30% which keep me at 100% this is wrong and need your help and advise on what to do I did file a NOD, I am a member -roughsoldier thank you

[Berta]

"and for all the years and the two
injuries and document they could have awared me 60 to 70% instead of
30% which they said my rating will stay at 100% as I stated that PTSD
was awared that in 1995 and now in 2013 TBI awared 30% which keep me
at 100% this is wrong and need your help and advise on what to do I
did file a NOD, I am a member -roughsoldier thank you"

TBI ...30% residuals.... what are the
residuals they are comping?

Can you scan and attach here the
Reasons and Bases and Evidence in the decision that awarded 30 % TBI
,the one that you Nodded?

Cover C file number, name and address before you scan it.

I have no idea if the new TBI regs will
have a favorable retro date.

All that I just bumped up in the Claims
Research forum.

Did they give you anything for the
hearing loss?

How come my replies dont go across the screen?????? I buggered something.....

Edited February 1, 2013 by Berta

[Lenkl]

My understanding is you must be rated 100% for a TBI injury also to get the T award you must be house bound to the point of 24 hr. hospital care and or 24 hr. nurse care.

[carlie]

I have had a seizure disorder since 1975 because of a head injury I've been 100% service connected for seizures since 1984, I applied for TBI about 5 years ago and recieved 70% SC for TBI within a year.

My medical reports over the years state my seizure disorder is secondary to my TBI injury so it would seem to

me my TBI should be before 1984 so I requested an earlier effective date for my TBI award...

They are not going to provide an earlier effective date for SC of your TBI.

First reason is you did not file a claim for TBI in 1984 or before.

Second reason is that regs and rating criteria specifically for TBI

did not come into effect until post Oct 2008 changes in 38 CFR DC 8045.

Prior to these changes, there was a 10 percent max for brain trauma, itself,

without documented medical evidence of dementai.

[Sick Boy]

Hello all,

I received a 40% rating for TBI 11 months ago. When I sent the claim in for TBI, I also sent in a claim for MDD which has been deferred for a couple of years (they had the MDD at the final decision stage twice and I swear they just kicked it back to gathering evidence so they could wait for the new TBI rule to be published) . With the new TBI rule will the MDD be rated separately from the TBI? In my opinion the 40% rating on the TBI is accurate if all the secondary mental health stuff it has caused (MDD, etc.) is excluded and rated separately. My crazy level warrants 50-70% (trust me on this one), just for the MH stuff. Reason I ask is because I am coming up on the 12 month appeal window, not sure if I should appeal the TBI because my MDD is still deferred? One last question: If my MDD is rated as secondary to TBI can it be rated at a higher percentage than the TBI? You guys are all hero's in my book and thanks in advance for the help. Sorry if this is jumbled my brains got scrambled.

[Berta]

A TBI is a physical injury to the brain. MDD regards a psychological injury.

The VA has separated TBI from PTSD and compensated for both of these disabilities due to the fact they are distinctly separate.I thin they will do that in your case here (they should....dont know what they will really do)

This case shows what I mean.:

.http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files2/1211691.txt

(This BVA case is disappointing to me....then again I feel it is a case whereby the VA would not consider the vet for TDIU but the vet could have formally claimed TDIU after he left his job, with a strong IMO for that)

I am surprised you didnt claim PTSD due to the TBI.

Obviously a TBI is a stressor.

Does your medical evidence reflect that the MDD is due to the TBI incident? Or iis it claimed as due to something else?

"Reason I ask is because I am coming up on the 12 month appeal window,
not sure if I should appeal the TBI because my MDD is still deferred?
One last question: If my MDD is rated as secondary to TBI can it be
rated at a higher percentage than the TBI? You guys are all hero's in
my book and thanks in advance for the help. Sorry if this is jumbled my
brains got scrambled."

You feel the TBI rating is accurate. I would wait for the MDD decision and see how that goes.

However if you look over the TBI ratings that are current and feel the 40% is too low for the residuals by all means appeal that rating.

Hard to know what the MDD rating could be....I assume you have had a C & P exam for the MDD? Do you have a copy of the exam results and can you scan and attach that here? (cover personal stuff, name c file # address)

Are you presently employed?