Final Rule Tbi March 2014

[Berta]

From GatorNavy's link:

This Rule document was issued by the Department of Veterans Affairs (VA)

For related information, Open Docket Folder

Action

Final rule.

"Summary

The Department of Veterans Affairs (VA) amends its adjudication regulations concerning service connection. This final rule acts 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. This amendment establishes that if a veteran who has a service-connected TBI also has one of these diagnosable illnesses, then that illness will be considered service connected as secondary to the TBI.

Dates

Effective Date: This rule is effective January 16, 2014.

For Further Information Contact

Michael Ford, Regulatory Specialist, Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-6813. (This is not a toll-free number.)

Supplementary Information

On December 10, 2012, VA published in theFederal Register(77 FR 73366) a proposed rule to amend VA adjudication regulations (38 CFR Part 3) by revising 38 CFR 3.310 to add five diagnosable illnesses as secondary conditions which would be held to be the proximate result of service-connected TBI. The proposed rule identified those five illnesses as: (1) Parkinsonism, including Parkinson's disease, manifested following moderate or severe TBI; (2) Unprovoked seizures manifested following moderate or severe TBI; (3) Dementias (presenile dementia of the Alzheimer type and post-traumatic dementia) if manifest within 15 years following 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 if manifest within 12 months of moderate or severe TBI. We provided a 60-day public-comment period, which ended on February 8, 2013, and received 201 public comments.

1. Executive Summary A. Purpose

This final rule amends VA's regulation concerning determinations of “secondary service connection” by identifying circumstances under which certain illnesses will, absent clear evidence to the contrary, be found to be the secondary result of a service-connected TBI. The effect of the rule will be to eliminate the need for case-specific development and decision on that issue, thereby promoting efficiency and consistency in claim adjudications and making it easier for qualifying claimants to establish service connection for these conditions.

VA provides disability compensation and other benefits for disability resulting from disease or injury that is “service connected,” meaning that it arose in service, was aggravated by service, or otherwise is causally related to service. See 38 CFR 3.303. “Secondary service connection” refers to the situation in which a service-connected disease or injury causes or aggravates a distinct condition. In that situation, 38 CFR 3.310(a) provides that “disability which is proximately due to or the result of a service-connected disease or injury shall be service connected” and “the secondary condition shall be considered a part of the original condition.”

Regulations in VA's Schedule for Rating Disabilities currently recognize that TBIs potentially may produce a variety of cognitive, emotional/behavioral, or physical effects, including conditions that may be diagnosed as distinct mental or physical disorders. 38 CFR 4.124a, Diagnostic Code 8045. However, when a Veteran has suffered a TBI in service and also has been diagnosed with a distinct mental or physical condition, such as depression or endocrine dysfunction, it may not be apparent whether the latter condition was caused by the TBI or resulted from some other cause. In such cases, VA ordinarily would seek to obtain a medical opinion on that question and would make a determination taking into account the medical opinion and all other relevant evidence of record.

In a report titled “Gulf War and Health, Volume 7: Long-Term Consequences of Traumatic Brain Injury,” the IOM analyzed the available scientific and medical literature regarding the long-term consequences of TBI. In that report, IOM identified certain diagnosable conditions as to which there is relatively strong evidence that such conditions are associated with TBI because, for example, reliable studies show that those conditions occur more frequently in persons who have suffered a TBI than in other populations. After considering the IOM report and obtaining advice from medical experts and others within VA, the Secretary determined that there is a sufficient basis to establish a rule providing that certain diagnosable illnesses will be found to be the secondary result of TBI in certain circumstances, absent clear evidence to the contrary. Establishing such a rule will eliminate the need in individual cases to obtain a medical opinion or develop other evidence to determine whether the condition is associated with a TBI.

This rule is necessary to implement the Secretary's determination. Under 38 U.S.C. 501(a)(1), the Secretary is authorized to issue regulations regarding “the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits.” By eliminating the need to obtain medical opinions or other evidence in certain circumstances, this rule will enable VA to decide these claims more expeditiously and efficiently. Relatedly, this rule will make it easier for claimants to establish secondary service connection for the conditions covered by this rule. Further, this rule will ensure that claims involving the covered conditions are decided in accordance with available scientific knowledge and it will ensure consistency in the adjudication of claims.

It is important to note that this rule is intended only to identify circumstances in which, absent clear evidence to the contrary, VA must find the identified conditions to be the secondary result of service-connected TBI. It is not intended to limit or preclude a finding of secondary service connection for any other conditions or for any of the five specified conditions that are manifest outside the time periods set forth in this rule. Any claim that is not within the scope of this rule will be developed and decided under generally applicable procedures based on the evidence relating to that claim.

B. Summary of Major Provisions

This final rule revises 38 CFR 3.310 to provide that, absent clear evidence to the contrary, five diagnosable illnesses “shall be held to be” secondary results of TBI in certain circumstances. The identified circumstances pertain to the severity of the TBI and the period of time between the TBI and the manifestation of the secondary condition. Specifically, paragraph (d)(1) of the rule provides for secondary service connection of the following illnesses: (1) Parkinsonism, including Parkinson's disease, manifested following moderate or severe TBI; (2) Unprovoked seizures manifested following moderate or severe TBI; (3) Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following 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 if manifest within 12 months of moderate or severe TBI. If those conditions are met, the secondary condition will be service connected and considered to be part of the service-connected TBI for purposes of providing VA disability benefits.

The time periods set forth in this rule are based upon available scientific and medical evidence, as summarized by the IOM, and reflect the finding that, when the secondary condition manifests within such time period, it is reasonable to conclude, without the need for further evidentiary development, that the condition resulted from the TBI. Because no time period is specified for Parkinsonism or unprovoked seizures following moderate or severe TBI, secondary service connection will be established if those conditions are manifest at any time after the TBI.

Paragraph (d)(3) of the final rule sets forth the criteria VA will use to determine whether a TBI in service was mild, moderate, or severe. Those criteria are the standard criteria that VA and the Department of Defense (DoD) both currently employ in evaluating the severity of a TBI. The criteria consist of five distinguishing factors, each pertaining to the effects of the injury at the time of the injury or shortly thereafter. The rule provides that a claimant need not meet all the criteria of a particular level of severity in order for VA to classify the TBI at that severity level. Rather, VA will rank the TBI at the highest level in which any criterion is met, except where the qualifying criterion is the same at both levels, in which case, VA would look to the other criterion to determine the highest level assignable.

Paragraph (d)(2) of the rule would state that neither the severity levels nor the time limits set forth in the rule will preclude a finding of service connection for conditions shown by evidence to be proximately due to service-connected TBI. It further explains that, if a claim does not meet requirements of this rule for a mandatory finding of secondary service connection, VA will develop and decide the claim under generally applicable principles of service connection without regard to paragraph (d)(10) of this rule."

[mariorivera830]

Thanks for the read Berta. But I don't know about anyone else, but I can barely make out what this all means. Can anyone interpret this into layman's terms?

This is where I get lost when it comes to my claims and junk. Thanks in advance.

[Berta]

I think this is the key part:

"This final rule revises 38 CFR 3.310 to provide that, absent clear evidence to the contrary, five diagnosable illnesses “shall be held to be” secondary results of TBI in certain circumstances. The identified circumstances pertain to the severity of the TBI and the period of time between the TBI and the manifestation of the secondary condition."

Basically it means that the VA is willing to concede any of the five mentioned additional disabilites, as secondary, if they appear with 'severe' TBIs (which in my opinion would be severe if the TBI did in fact cause other ratable disabilty problems) and the VA however would into consider the time frame from the TBI and the medical evidence (to include the SMRs) to potentially to award the secondary disability.

It mentions depression as one of those 5. However many vets have PTSD (that could include depression) due to the TBI because most TBIs are from a stressful event.
The VA must rate SC PTSD in TBI vets in addition to the TBI rating.

I agree the rule is quite confusing.


This however is a very positive part of the rule:

"Paragraph (d)(3) of the final rule sets forth the criteria VA will use to determine whether a TBI in service was mild, moderate, or severe. Those criteria are the standard criteria that VA and the Department of Defense (DoD) both currently employ in evaluating the severity of a TBI. The criteria consist of five distinguishing factors, each pertaining to the effects of the injury at the time of the injury or shortly thereafter. The rule provides that a claimant need not meet all the criteria of a particular level of severity in order for VA to classify the TBI at that severity level. Rather, VA will rank the TBI at the highest level in which any criterion is met, except where the qualifying criterion is the same at both levels, in which case, VA would look to the other criterion to determine the highest level assignable."

But severity in this part depends on factors that occurred at time of the injury causing TBI or shortly thereafter....such as documented concussion I would think, and anything else in the veteran's SMRs that could led to identifying those "factors."

I would think any veteran who gets an initial TBI award and some retro should hold onto some of the retro for when they might need an IMO ,if they claim these secondariys and a C & P examiner does not agree with the secondary claimed disabilities, as caused by the TBI.

[Berta]

Need to add ...these are the five 'factors':

Any period of loss of or a decreased level of consciousness;

Any loss or memory of events immediately before or after the injury;

Any alteration in mental state at the time of the injury (confusion, disorientation, slowed thinking, etc.);

Neurological deficits (weakness, loss of balance, change in vision, praxis, paresis/plegia, sensory loss, aphasia, etc.) that may or may not be transient; or

Intracranial lesion.

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&ved=0CGQQFjAH&url=http%3A%2F%2Fwww.vfwilserviceoffice.com%2Fupload%2FTBI%2520Secondary%2520Rule%2520ChangeFact%2520Sheet%252012-7-12%2520FINAL.doc&ei=rBREU_jZHsWbygGqqoGoAw&usg=AFQjCNEOTrpdxB6KHmas-lPOiI5v7F3C3g&bvm=bv.64367178,d.aWc

Hopefully buddy statements might help with proving one or more of these factors ,if not documented in SMRs, except for intercranial lesions...I think a MRI would be needed for that.

[john999]

I wonder how many military suffered TBI due to IED war tactics. The estimation is that 5 million served in Iraq and Afghanistan, and out of that 20% have PTSD. That is a million vets. You consider that all surviving Nam vet have a presumption of AO exposure, and that is another 800,000-1,000,000. I think congress is going to try and divert this tidal wave coming at them. My senator in Florida told me that there has already been attempts to change the AO law to make vets prove they were exposed to AO. These miserable draft dodgers will stop at nothing to protect their 1% donors from any new tax to take care of millions of suffering vets. Although I don't think much of VSO's ability to do claims I am willing to join if it means they can protect us from greedy and ungrateful congress. If you can't or won't pay then you can't play. That is how it works in American politics right or left.

John