Traumatic Brain Injury Claims
Emma Peterson: Hello again, and welcome to another episode of CCK Live. I am Emma Peterson. Today, I am joined by my colleagues Kevin Medeiros and Bethany Cooke. We are going to be talking to you a little bit about TBIs or traumatic brain injuries. As always, if you have any questions, please feel free to leave them in the comment section, and we will get back to you as soon as possible. You can also check out our website, www.ccklaw.com, where we all are going to have some more information on everything we talk about today and feel free to reach out to us with any questions. With that, we are just going to dive right into our discussion about TBIs. Bethany, what is a traumatic brain injury? Is it the same thing as a concussion?
Bethany Cooke: A traumatic brain injury is essentially brain dysfunction caused by an outside force such as a blow to the head. A concussion is a common form of a TBI, but not all TBIs are concussions. They are a little bit different in that regard.
Emma: Okay. What are some common causes of TBIs in service that veterans might have experienced?
Bethany: An in-service TBI could result from any sort of blow to the head, but some of the most common causes would be an IED blast, combat, car accident, or a personal assault, or military sexual trauma. TBIs have, unfortunately, become much more common among veterans who have served in the current conflicts in Iraq and Afghanistan. VA estimates that twenty percent of all combat-related casualties sustained by troops in Iraq and Afghanistan are brain injuries.
Emma: Wow, that is a lot. Kevin, these seem a little bit nebulous, these blasts, combat, car accidents, things like that. How are TBIs actually diagnosed?
Kevin Medeiros: Yes. There are three categories of TBI. Mild, moderate, and severe. They can be diagnosed through imaging results, MRIs, PET scans, or x-rays. The factors that the medical professional will take into account when determining whether a veteran has a TBI are the length of time that the individual faced in an altered state of consciousness, the length of post-traumatic amnesia, and the score on the initial trauma scale which is called the Glasgow Coma Scale. We are going to put up the scale on the screen here for folks to see, but basically, it takes into account a few different objective testing measures and determines how severe the TBI was. Mild TBI is usually resolved within about six months, but there can be significant residuals to more severe TBIs that can be long-lasting. They can be permanent, and they can even take years to develop such as resulting in dementia or Parkinson’s disease down the line.
Emma: There are some common signs and symptoms of TBI and then resulting disabilities or conditions that VA will look to. Some common residuals that veterans might experience who have had a TBI include headaches and dizziness, visual impairment, hearing loss, tinnitus, all the way up to seizures. It can also affect your body. Muscle weakness, inability to complete motor tasks, speaking. It can have trouble concentrating and writing. It even can results in paralysis, stroke, gait bounce. Really anything that you can imagine that might affect your nervous system, your brain, your ability to concentrate, and then it also can result in depression or agitation, aggression, impaired memory. Really full body set of symptoms and residuals. I think people can get confused about what to submit a claim for. Should they submit a claim for TBI? Should they submit a claim for these individuals’ residuals? The answer is mixed. It is a little bit of both. It depends on what you have and what you are suffering from. I think we would all agree that you should really talk to an accredited rep or a VSO, an attorney, whoever you are working with on these claims. Because, now, even more so, under AMA, under the new appeals process, being specific and precise on those claim forms is really important. Well, if you claim TBI and you suffer from a lot of these things, the VA should in theory be looking at all of them and writing them. If there is something in particular that is the predominant disability for you, I would go ahead and isolate that and note that on your claim.
Emma: After you do file that claim, VA is going to get you an examination, as they are warrant to do. An initial exam is going to be conducted by a neurosurgeon, a neurologist, a physiatrist, or a psychiatrist. If you want more information about that, you can check out our video, our Facebook Live. It is also on YouTube about challenging a VA examination if that does not go well for you. But just note that it is one of those four specialists that is going to be doing an initial exam. I think, a while back, VA got in a bit of trouble, hot water, because they were not getting initial exams by those specialties, and they have to go back and re-examine a bunch of folks. But just know, only one of those four. Bethany, after a veteran gets an exam, hopefully, they get a favorable rating decision. How is VA going to rate the TBI?
Bethany: Kevin earlier talked about how a VA kind of assigns the initial severity of a TBI. That itself is not how VA is actually going to rate the disability. They rate the disability based on the residuals that you were talking about earlier, Emma. TBIs are rated under 38 CFR 4.124a which essentially divides the residuals of a TBI into ten categories. Those categories are memory, attention, concentration, and executive functions. That is just one category there, as well as judgment, social interaction, orientation, motor activity, visual-spatial orientation, and then subjective symptoms, neurobehavioral effects as well as communication, and consciousness. What VA will do, and they might do this during the compensation and pension examination is they will assign a level of severity for each of those ten categories on a scale of zero to total with each increment corresponding to a VA rating of zero percent, ten percent, forty percent, seventy percent, or a hundred percent. What VA will do is they will pick the most severe category. They will base the rating on that category alone. If a veteran has any category that is scored at the total rating, then they should automatically get a one hundred percent rating for their TBI.
Emma: I will say I think, probably Kevin and Bethany, you guys can chime in here too, but the VA exams for TBIs are confusing when people see them because, as Bethany mentioned, they talk about all these categories and they call them facets. They will give you a score of one to four for each facet. Let us say there is ten sections, if you get a one on every single section, you are still only going to get that ten percent rating, whereas if you have a zero or no impairment on, let us say, nine out of ten but one of those you have a two or three, you are going to get a higher rating. I think, sometimes, people can be confused saying, “Look, I have got all this impairment across all these different area but VA is only going to assign you the rating based on the worst number, whereas facet they do not add them up.” Once again, VA math come in to bite you. But Kevin, are there any special considerations that we should be looking out for when it comes to TBIs?
Kevin: For veterans with TBIs, there is a level. It is called SMC, Special Monthly Compensation, at the T level. It is when a veteran with a traumatic brain injury needs regular aid and attendance but would not otherwise qualify for the next level, which I will get to. But basically, SMC at the T rate for regular aid and attendance is when a veteran’s TBI prevents them from being able to take care of themselves appropriately. They might not be able to protect themselves from the hazards of daily living, so they need someone to help them with essential activities, but that person does not necessarily have to be a professional. It can be a family member who might live with the veteran or stop by on a regular basis to help them out with certain things that they would not otherwise be able to do.
Emma: I think we have a video in SMC. Everyone should certainly check it out because it can get really nuanced. Just to recap there, the SMC T rate pays out at the R2 rate which is the highest level of SMC that VA offers. T is available for veterans, as Kevin mentioned, who have a TBI that require aid and attendance but do not otherwise meet the component puzzle pieces you need to reach R2. Please check out the video. But they do payout at the same rate, and it really is a vital benefit for so many veterans out there with SMC, excuse me, with TBIs. What about TDIU, Kevin, can veterans with TBI expect to look for ratings for TDIU?
Kevin: Absolutely. If a veteran is unable to obtain and maintain, substantially gainful employment is the standard that VA uses. If their TBI residuals prevent them from being able to hold a job and their scheduler compensation otherwise does not reach a hundred percent, the VA will acknowledge the fact that the service-connected TBI and maybe in combination with other service connecting conditions might preclude them from being able to work. They will be able to get paid at the one hundred percent rate if their TBI prevents them from working.
Emma: The thing with TBIs is that there are all these sort of areas that Bethany was talking about that can results in impairment. Then, there are additional conditions that we know can results from TBI and are associated with TBI. There actually are some conditions out there that VA will presumptively service connect due to your TBI if they develop at certain points. You can check out that is in 38 CFR 3.310. But for example, parkinsonisms and Parkinson’s disease, if that develops at any point after a moderate or severe TBI, if dementia develops within fifteen years of a moderate to severe TBI, unprovoked seizures, depression within three years of a moderate or severe TBI or within twelve months of a mild TBI, and then decrease in hormone deficiencies that result from hypothalamo-pituitary changes. Basically, impacting the hypothalamus and pituitary glands in your brain. If that develops within twelve months of a moderate or severe TBI, those can be presumptively service-connected. What that means is that you can file a claim for it and you will not necessarily have to obtain a medical nexus opinion linking your current condition to your TBI. There is always a chance that there might be evidence showing that these conditions are due to something else, but just know that that is an option out there.
Emma: Then, I think another issue that comes up, and I think people really focus on, too, is the depression or mental health conditions. Those symptoms can certainly overlap with your TBI if you look at the rating criteria for both. If they do overlap, VA is not going to double-dip. You are not going to get ratings for both the depression. Let us say you have lack of concentration due to your TBI and lack of concentration due to your depression, you are not going to get a rating for both of that symptom or impairment. Just know that you might get separate ratings for TBI and depression or they might lump them all together into one single rating. This is just an open question for the group, does VA usually rate or service-connect TBI accurately?
Bethany: Working at the agency level, I would say no. It is typically VA often under rates TBIs. You can see it in compensation and pension examinations, which oftentimes is what the VA uses to rate a veteran’s TBI. The rating they assign, the various categories that are going to basically assign the veteran’s disability rating. The severity reflected in the compensation and pension examination might not be the severity that might be reflected in the veteran’s lay testimony or in the veteran’s private medical records. Sometimes you do have to, unfortunately, fight with the VA to get that rating corrected.
Kevin: Yes, I agree. As Bethany mentioned, the agency really will not account for the lay testimony, that a veteran will describe all of these limitations caused by their TBI and their daily living through a statement and even tell that to the VA examiner, but the agency will generally just take the boxes that the examiner checks or the numbers that they write down to rate the TBI like you were talking about earlier, Emma. It does not really account for the holistic view of the veteran’s ability to function based on their experiences which they are competent to describe. That is mainly what we see when these cases make their way up to court, the agency failing to account for the veteran’s descriptions of the impairments.
Emma: Is there something that veterans out there watching this can do to help their TBI claims through the VA system? What do you think Bethany?
Bethany: I think it is really important for veterans to submit their lay testimony, especially if it is painting a disability picture that is different than the one reflected in the VA exams. I also think it is important to be submitting medical evidence as always. If you have your own physician who is treating you for your TBI, if they can submit a letter or even just your records from that facility that are trying to portray the larger picture, that is the daily impact of the TBI on a veteran’s ability to function independently. I think it is also important, you can probably tell from how we describe the rating criteria, TBI claims are complicated. I think it is definitely a claim that a veteran should seek help from an accredited practitioner or a VSO when they can.
Kevin: I agree with Bethany. The agency is not supposed to necessarily give more weight to medical evidence versus a veteran’s lay testimony, but they tend to do that which we have learned from experience working on these cases. If a veteran does have their own doctor or even treats consistently with the VA to be forthcoming about the limitations that they have due to the TBI so that they make it into the record and that the agency has other things to work with other than what the compensation and pension examiner says, I think lay testimony and the medical evidence are the most important.
Emma: Well, thanks for joining us for this another edition of CCK Live about TBIs. Again, any questions or concerns, please feel free to leave them in the comment section, and we will get back to you as soon as we can. Once again, I am Emma Peterson, and I am here with Kevin Medeiros and Bethany Cooke. Have a great rest of your day!
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