March is Traumatic Brain Injury (TBI) Awareness Month! Tune in to find out how your TBI diagnosis may affect your benefits, how VA rates TBIs, other benefits TBI survivors might be eligible for, how to get secondary service connection for a TBI-related condition, and frequent mistakes VA makes when adjudicating TBI claims.
Jon: Good afternoon. My name is Jonathan Greene. I’m a lawyer with Chisholm Chisholm & Kilpatrick. With me today is Michelle DeTore, accredited claims representative and Christian McTarnaghan, attorney also with Chisholm Chisholm & Kilpatrick. Today we’re going to be talking about traumatic brain injuries which we’ll be referring to as TBIs. We’re gonna pause for a minute to let our viewers join us and this is a good time to mention that we did a Facebook poll and our viewers decided that this was the topic they wanted so it’s a good one for that reason and also March is TBI month, TBI awareness month so it’s very appropriate for us to be discussing this today.
Okay, good afternoon again. Welcome back. Again my name is Jonathan Greene, I’m a lawyer with the law firm Chisholm Chisholm & Kilpatrick and with me today is Michelle DeTore, accredited claims representative and Christian McTarnaghan, also a lawyer with Chisholm Chisholm & Kilpatrick. Again we’re going to be talking about traumatic brain injuries, TBIs. Christian, what is a traumatic brain injury? Is it the same thing as a concussion?
Christian: So not always. A traumatic brain injury is any sort of injury that you get that sort of disrupts the functioning of your brain. It’s caused by a lot of different things. It can be an explosion. It can be hitting your head on something, someone hitting you with something. A concussion is a type of TBI but it’s not the only type. So something can be– a concussion is always traumatic brain injury but traumatic brain injury doesn’t always manifest itself simply as a concussion.
Jon: And this is something that you hear a lot about today, specifically with regard to football players in the NFL. It’s getting a lot of attention. What would be a common cause of a TBI in the veterans disability sense?
Christian: Well I think most commonly especially in the modern era is improvised explosive devices, IED blasts, any sort of combat trauma to the head, you know, and unfortunately, you know, personal assaults, physical assaults and also in some instances an occurrence that happens during MST or military sexual trauma.
Jon: Okay and how are these diagnosed?
Michelle: So typically TBIs are diagnosed either as mild, moderate or severe and doctors will typically run an MRI, PET scan, or CT scan to see if they can see it in the scans that there is a traumatic brain injury. However, it is common that nothing shows up so at that point in time, VA will move to the signs and symptoms of your TBI. First of all, the most common symptom is you know, that you lost consciousness, then you have headaches, you have problems with your memory, dizziness, nausea, confusion. You also have more severe symptoms such as depression, anxiety, seizures, muscle loss, hearing loss, tinnitus, seizures, and trouble communicating written or verbally.
Jon: And what is the– what does the VA mean? What does Department of Veteran Affairs mean when they talk about residuals? Are disabled veterans filing claims for the traumatic brain injury or are they filing a claim for the residuals?
Michelle: Technically, a veteran could be filing for both because sometimes the residuals are actually the full impairment of the TBI and the T– and the residuals itself could be more severe than the actual TBI is because your residuals like a headache could be the main problem from your TBI so you’re not really necessarily filing for your TBI, you’re filing for the symptom that is result of the TBI.
Jon: And Christian, how does VA rate a TBI that after it has become service connected?
Christian: Sure, so the rating criteria looks pretty complicated to be honest. It’s a really long chart.
Jon: How unusual.
Christian: There’s a lot going on, yeah, right. It’s one of the more sort of complicated looking rating criterias but I’m going to try to break it down today in a way that’s like a little bit digestible that will hopefully take– take that out of it. Because it is when you think, when you look at it and you read it and you look at it– it’s like it becomes less complicated. So basically the VA rates sort of these residuals that we’re talking about of TBI on a scale of 1– 0, 1, 2, 3 or total and they have 10 subcategories that they would have to look at to see if you are rated at a 0, a 1, a 2, or a 3. So they look to memory, attention, concentration, and executive functions. That’s sort of the first category that they look to see how severe your impairment is in that overall category. So just to give people an example of, you know, what a 1 might be and what a total might be, so for a 1 rating for impairment of memory concentration and executive functions would be complaints of mild memory loss, attention– mild attention problems, mild concentration problems, mild executive functions but without objective evidence testing. Total, on the other hand, would be objective evidence testing that shows all of those categories I just talked about are incredibly severe and leading to severe overall impairment. So that’s sort of just a blown out view of one of the ten things that they’ll look at when they’re rating a TBI. So they’ll also look to categories of judgement, social interactions, orientation, motor activity, visual spatial orientation, any subjective symptoms, neurobehavioral or– neurobehavioral effects, excuse me, communication, and then consciousness.
Jon: Thank you very much. I’d like to just take a moment to reintroduce ourselves. Again, my name is Jonathan Greene, I’m a lawyer with the law firm Chisholm Chisholm & Kilpatrick and with me are Michelle DeTore, accredited claims representative with Chisholm Chisholm & Kilpatrick and Christian McTarnaghan also a lawyer with Chisholm Chisholm & Kilpatrick.
Christian: If I might add one more thing before we move on? So those ten areas are the areas that they look for impairment when they’re using the rating criteria but then once you get those numbers, so let’s say a veteran has a memory, attention, concentration, executive function level impairment of 3, that single 3 in that single section of the rating criteria could lead to a 70% rating. Any total in any area is a 100% rating. A 3 in any area is a 70% rating, a 1 in any area is a 10, and a 0 across the board would be a zero. So that’s how they go from the big chart to the beginning of the regulation that tells VA how to rate it.
Jon: Thank you, Christian. That was very comprehensive. For those of you out here– out there who might be confused by some of our explanation, please keep in mind that we– Michelle has gone through some of the signs and symptoms and Christian is– explained the diagnostic code rating criteria. Keep in mind that if you believe that you’ve suffered a TBI and you haven’t experienced some of these signs and symptoms for some time because there is often a delay, a significant delay, between when you suffer the TBI and experienced some of these symptoms, don’t let that stop you from filing a claim. If there is a gap from the injury to when you started experiencing those symptoms, the fact that there’s not evidence in the form of treatment records or any sort of, you know, other objective evidence, that doesn’t mean that you cannot become service connected for the TBI or its residuals. We have a question from Carolyn. If somebody has headaches due to a TBI, will the VA use that TBI chart? Anyone want to jump in on that?
Christian: Sure, I mean the headaches are explicitly listed in the subjective symptoms category of the TBI rating so I think what in that instance most likely what would happen, because you can never be exactly sure is, because VA has a duty to try to rate a veteran at the highest level possible. If that headache impairment would lead to a higher rating than perhaps a separate rating under the headaches diagnostic code, then they would use the chart. But if I had a case where, let’s say VA only looked to the TBI chart and I thought that the headaches were more severe than the rating that they would get based on the 1, 2, 3, or total in that subjective symptoms category, I would argue that the Board had a duty or VA had a duty to take a look at a separate rating for headaches if it would have gotten my client or our client a higher rating.
Jon: Okay so you just said something interesting there, a separate rating for headaches which has its own criteria and rating assigned to it. Can you explain what VA means when it says that it doesn’t– doesn’t pyramid-
Christian: Sure, absolutely.
Jon: -two separate disabilities?
Christian: Yes so in that, let’s continue with that hypothetical right? In that hypothetical, if the veteran was receiving the TBI rating because her- his or her headaches created level 2 subjective symptoms and that’s why they got the TBI rating but it was mostly because of the headaches if not all because of the headaches, one couldn’t then also argue that a separate rating for headaches was warranted because you can’t count the headaches symptom twice. I like to think of it as two boxes. You either put the headaches in the TBI box and get your rating through that headaches problem residual in the TBI box, or if it’s more beneficial to you, you put it in the headaches box and but you can’t get both. That’s the pyramiding concept. You can’t be compensated twice for the same symptom.
Jon: Okay thank you very much, and thank you Carolyn for the question.
Christian: Great question.
Jon: Keep those coming. Michelle, could veterans with TBIs be eligible for other VA benefits?
Michelle: Yeah, they definitely could be. So the first one that’s pretty common is that your TBI renders you or your TBI and residuals render you completely disabled and unable to work, so therefore a veteran would want to file for Total Disability Based on Individual Unemployability. I believe we just did a Facebook Live a few weeks ago regarding that so if you want to look back at that I think we’re gonna post it in the comments so you can see. That’s one of the benefits that’s-
Jon: So what is the disability rating that they get when they are rated for the TDIU?
Michelle: Sure. So you’ll get rated at the 100% rate even though maybe schedularly, your TBI doesn’t get you there on the schedular criteria, like Christian said, maybe you only have a 70% rating. It’s a way to get you to be the 100% rating to get paid at the 100% level without meeting the schedule requirements for the TBI condition.
Jon: So is there a monetary difference between getting there on the schedule as you called it under the criteria that Christian discussed, or getting the total disability rating based on individual unemployability?
Michelle: 100% is 100%. Either way it’s paid at the same rate. But if you were paid at 70% versus 100%, it’s about, I think about a $1,500 a month difference. So it’s pretty significant. So it’s very- usually worthwhile to apply for if you are unable to work because of your TBI or even just your service-connected conditions in general. So that is one of the benefits. Another benefit is that VA does have a program for special monthly compensation. It’s a benefit that is beyond the 100% rating criteria for veterans that meet certain criterias, and one of the criterias is that your disability renders you in need of regular aid and attendance which is very common with TBIs. We’ve– we listed some of the symptoms. Some of them was muscle impairment, cognitive impairment, memory loss. Veterans aren’t able to, you know, move around, they’re not able to feed themselves, they’re not able to remember to take their medication so they require the assistance of somebody else in order to be able to do those things. They also have a certain level and I apologize, I don’t wanna get too complicated with this, of special monthly compensation designated for just people with severe traumatic brain injuries and it’s because a person needs daily assistance from a licensed healthcare provider in order to get by on a daily basis.
Jon: Because of their TBI.
Michelle: Yes because of the TBI and if they didn’t have that assistance, they would be institutionalized, in assisted living facility, or hospitalized.
Jon: And what is that rating called?
Michelle: It’s called special monthly compensation at the T level and just to give you an idea of differences and benefits, the 100% rating is about $3,000 a month and then if you get to SMC(t), it’s paid at about $7,000 a month. So it helps out paying for that care that you need. I’ve also seen veterans where their- VA does have a program where somebody can become a licensed caregiver. So sometimes a spouse or a family member can become that licensed caregiver and help meet the criteria to meet this regulation.
Jon: Thank you Michelle. Again we’re Chisholm Chisholm & Kilpatrick. My name is Jonathan Greene. I’m an attorney with the firm. With me are Michelle DeTore, also with Chisholm Chisholm & Kilpatrick. Michelle is an accredited claims representative and Christian McTarnaghan is also an attorney with Chisholm Chisholm & Kilpatrick. I’d like to mention that Michelle was just discussing the concepts of special monthly compensation and TDIU, the total disability rating based on individual unemployability. Those are two concepts that are very very involved and can be very complicated. I’d like to point you, as Michelle did, to our website at www.cck-law.com and read our blogs. We’ve done blog posts on both special monthly compensation and TDIU. That’s not going to exhaust all the materials you need for those but it’s- it’s a good– there’s a lot of good information there so please go on our website and take a look at our blog if you want to find out any more information and you’re also welcome to contact our firm and reach out if you do have any questions about how to obtain those benefits. As Michelle just mentioned, SMC at the T rate, which is a special rate for people with severe TBI, that’s a huge benefit at $8,500 a month as she- around $8,500 a month whereas the 100% rate pays about $3,000 a month so we’re talking about a big– huge change- a huge increase in compensation, monthly compensation. So Christian, if I also have service-connected post-traumatic stress disorder and my symptoms overlap with the residuals, you talked before a little bit about pyramiding. How is that going to be handled?
Christian: Yeah so it would be handled very similarly to how we discuss the headaches issue but specifically, when you look to the TBI rating criteria. So let’s say you have a 50% rating for your PTSD and part of the symptoms- or the symptomatology that VA is considering to give you that rating is memory loss, right? So one of the first sort of ten different areas that they look for for TBI talks about memory loss. So you wouldn’t be able to use the memory loss caused by your PTSD to then argue that your TBI causes, you know, additional memory loss. Memory loss is sort of memory loss for purposes of rating these two concepts but what’s interesting in the–in the– in the PTSD and the TBI is there’s a lot of things that a psychological disability like PTSD would cause that TBI that– that PTSD causes that aren’t in the TBI rating criteria like loss of consciousness for instance. That’s not a symptom that’s typically associated with PTSD so if you have a traumatic brain injury, you’re already receiving ratings, you know, you can look to why you’re receiving those ratings and if you think there are additional symptoms that you have that you’re not being compensated for then you can work to try to get compensated for those additional symptoms under the TBI rating criteria.
Jon: Thank you, Christian. And would you also explain for us what secondary service connection is? We’ve- and just for the folks out there who are new to this area. In order to get VA compensation for a disability, you need to first become service connected. Meaning that that disability is somehow related to your active duty military service and so when we’re talking about ratings and we’re talking about how, you know, all of this money, SMC, special monthly compensation rates, the assumption is that the– that the condition for example, the TBI is first service connected so could you– could you go through what secondary service connection is?
Christian: Yeah. So what Jon was just talking about was sort of direct service connection. You have an incident in service that causes a TBI. You’re service connected for that and then you get compensation for your traumatic brain injury. So secondary service connection is when a service-connected disability, let’s just use, you know, TBI because that’s what we’re talking about today causes another disability or aggravates another disability that- and these disabilities aren’t service connected, so when a service-connected disability either causes or aggravates a non-service-connected disability and when that happens, the veteran, even though it wasn’t incurred in service like the TBI was, can become service connected for it. So an example I thought of in the TBI context is if you are service connected for your traumatic brain injury, then you take some sort of medication to try to help the symptoms. That medication is difficult for your body to process and you get an ulcer from having to take the amount of medication that you have. Because you’re taking medication for your TBI which is a service-connected disability which has led to your having an ulcer, then you might be able to be service connected and get compensation for an ulcer even though it’s not this incurred in service concept.
Jon: And even though the ulcer came about several years even after service.
Christian: Yes, absolutely. Yep there’s no sort of temporal requirement, there’s no time limit to when you can file a VA disability claim. And then another one that I thought of was hypertension. Let’s say you have hypertension and your TBI can cause anxiety. That’s one of the elements that they look at for the TBI. That anxiety is found to raise your blood pressure to the extent that you would be able to get compensation under the hypertension diagnostic code. That is aggravating your non-service-connected disability which is the hypertension. You could be entitled to compensation for that hypertension.
Jon: Just take a moment to say again, my name is Jonathan Greene with the law firm Chisholm Chisholm & Kilpatrick and with me are Michelle DeTore and Christian McTarnaghan also with the firm. Michelle, so I realize that you might have some bias here but does the VA usually rate or service connect TBIs accurately?
Michelle: So, Christian earlier went through the rating criteria and I’m sure you guys thought it was confusing. So does VA. It’s very hard to go through it. It’s probably one of the most complicated rating criterias to compensate every symptom and compensate them correctly. So Christian mentioned how sometimes you could be rated higher under a different diagnostic code. That’s hard for VA to always comprehend and do, so I would say that unfortunately we do see some errors in them but I think that that leads kind of to the rating criteria and how comprehensive it is and how complicated it is. So I mean, in order to make sure that you are adequately and accurately rated for your TBI, keep in mind your TBI is rated based on severity now. It’s not rated based on the severity of when it was in service so there are some things that you can do in order to help yourself out in that matter. So when you’re applying or appealing, make sure you’re clearly listing all your symptoms that you want compensation for. What’s also great is to submit statements from yourself or friends or family members detailing the symptoms and the severity of them. VA uses lay evidence almost with the same amount of weight as medical evidence so it’s very helpful. Getting opinions from your doctors also describing the severity of them can be very helpful because your doctor knows you, knows your symptoms and can usually adequately provide that opinion and also know when to reach out. It’s like we talked about, it’s very complicated rating criteria. Sometimes you get to a point where you’re going to need to talk to somebody from a service organization to see how you can maybe argue or go about getting that higher rating. So just something to be aware of when you’re appealing and going through the process.
Jon: And are there conditions that are known to be associated with traumatic brain injuries?
Michelle: Yes, there are a few conditions that people should be aware of if you are diagnosed or as well as service connected for a traumatic brain injury so parkin– so one thing I should probably say first is that VA does require that the TBI be moderate to severe in most cases. So some of the conditions are Parkinson– Parkinson’s disease, seizures, depression, we also have dementia as well because, you know, you’re having, as Christian said, you’re having a trauma that’s changing the functioning of your brain and one of the symptoms is memory loss and as time goes on, your TBI usually doesn’t get better, unfortunately it usually gets worse so dementia usually comes in play. So those are some conditions that VA presumes are secondary to a TBI so if you do develop those conditions later, it’s definitely something you should apply for benefits for.
Jon: Thank you, do we have any further questions at this time? Okay, well I think that’s all we have for you today. Thank you very much for joining us and please go to our website to find additional information about not just TBIs but other conditions and other kind of issues and things that you can encounter in your pursuit of VA compensation. Our website is again www.cck-law.com and again my name is Jonathan Greene with the law firm Chisholm Chisholm & Kilpatrick and today was joined by Michelle DeTore, accredited claims representative, and Christian McTarnaghan also an attorney with Chisholm Chisholm & Kilpatrick. Thank you very much.