Changes to TBI Ratings

[awgv001]

CHANGE TO TBI RATING

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 service-connected 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 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 service-connected 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 post-traumatic 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.”

[El Train]

5 hours ago, awgv001 said:

This is why I believe I have a situation of "VA failed Duty to Assist"

"In general, to obtain a C&P examination a claimant needs to show a current medical condition, some evidence of potential connection to service, and that available medical evidence is not sufficient to allow a decision on the claim. In other words, the claimant must first provide some reason for VA to believe that a medical examination would be helpful in resolving the claim. A claimant's own statement that his or her symptoms have continued since service or a previous medical examination report can be enough of a reason."

Prescriptions, treatment, evaluations, diagnosis, and lay statements other than my own... but no C&P.

Have you gotten with a VSO?  They can help you file a claim.  You won't get a C&P without filing for a specific condition.  

[awgv001]

2 hours ago, El Train said:

Have you gotten with a VSO?  They can help you file a claim.  You won't get a C&P without filing for a specific condition.  

I have a VSO... - I use them to route my paperwork only. I have asked for assistance with filing my claims, to which I get a "look through them and figure it out".

They never recommended be to obtain my C-File, what method to approach my claims, and their explanation of why I was denied I got a "Well the VA just does what it wants to" reply.

To explain the level of hopelessness I felt at the time...

This gave me a fire in my belly, and I have only grown more motivated to fight. Unfortunately, my conditions make it very difficult, as I lose concentration easily, and have small children at home. If I didn't have notes all around my house things would quickly start coming unglued.

I filed a new claim for TBI in 2015 thinking this may be the only avenue I could go to get anyone to listen, and was subsequently denied without C&P, I re-opened with new evidence - still no C&P, again - denied, I NOD'd to DRO with more evidence, denied again - and now I'm awaiting at the BVA level with all 3 Caluza elements in their entirety twice over. I literally had to have one doctor back up another doctor after writing a diagnosis and following it up with the next doctor's concurrence as well as an additional statement of diagnosis on his pages too, just so they would acknowledge the diagnosis this time around now that its up at the BVA.

Things were messed up from the beginning, but I just didn't know how badly until I tried to ask for help.

[blahsaysme2u]

On 1/30/2020 at 9:11 PM, Richard1954 said:

if you think you need a c/p exam ask for it... you shouldn't have to ask... but if it can help your case ask and see what happens.

how do you do this btw? i never know how?

[blahsaysme2u]

i was just given SC for TBI last year but they merged it with my PTSD because "symptoms where too similar to separate". even though i meet the 3rd degree scale to warrant 70% for TBI. i didnt mind the 50% with PTSD but when they merged the two and gave me 0% TBI, i was pretty upset. my VSO said there wasnt much we could do with it it and at the time i believed him(have i mentioned how much i cant stand the VFW and DAV for their previous "help" with my claims) 

http://www.militarydisabilitymadeeasy.com/tbi.html#system

anywho- with this- maybe i should file for increase? i dont have any "new evidence" other than their change mentioned by @awgv001 post here. think this would help? or should i file NOD for HLR(my letter is dated 8-30-2019)? 

thoughts?

Edited February 2, 2020 by blahsaysme2u
spelling and missing link

[awgv001]

11 hours ago, blahsaysme2u said:

i was just given SC for TBI last year but they merged it with my PTSD because "symptoms where too similar to separate". even though i meet the 3rd degree scale to warrant 70% for TBI. i didnt mind the 50% with PTSD but when they merged the two and gave me 0% TBI, i was pretty upset. my VSO said there wasnt much we could do with it it and at the time i believed him(have i mentioned how much i cant stand the VFW and DAV for their previous "help" with my claims) 

http://www.militarydisabilitymadeeasy.com/tbi.html#system

anywho- with this- maybe i should file for increase? i dont have any "new evidence" other than their change mentioned by @awgv001 post here. think this would help? or should i file NOD for HLR(my letter is dated 8-30-2019)? 

thoughts?

Crap, the site went down briefly and lost my prior response >_<

anyways, @blahsaysme2u If you know you warrant the higher rating, and are within 1 year I would send in your disagreement specifically stating that you should have received a higher rating because...."X"

Filing for an increase will forfeit your EED and if it bumps you into the 100% could also be $10K+

As for HLR - I never recommend a route that doesn't allow the opportunity to present new evidence, it only seems like a possible roadblock to me.

[blahsaysme2u]

i guess i need to have my new awesome Virginia state VSO (honest and true-no sarcasm- i couldn't have better help, especially compared to previous help i have gotten) review the decision and see what he thinks based on this new ruling. unless someone here would want to take a look at it for me? i would really appreciate it(looking at you experts out there- you know who you are).