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Traumatic Brain Injury (TBI) Claims at the VA – Video

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.

  1. What is a Traumatic Brain Injury (TBI)?
    • Is it the same as a concussion?
  1. Common causes of TBI in military service
  2. How are Traumatic Brain Injuries diagnosed? (recovery time, initial severity)
  3. Filing a VA disability claim for TBI or TBI residuals
  4. Evidence for Traumatic Brain Injury (TBI) Claims
  5. How does the VA rate TBIs?
  6. Common errors VA makes with TBI claims
  7. TBI symptoms that overlap with other conditions (How to avoid “pyramiding”)
  8. Secondary Service Connection & Aggravation with a service-connected TBI
  9. Other VA benefits for veterans with TBIs
    • Special Monthly Compensation L (SMC(l)) with aid & attendance,
    • Special Monthly Compensation T (SMC(t)) with professional aid & attendance specifically for TBI care,
    • and Total Disability for Individual Unemployability (TDIU)
  1. VA Traumatic Brain Injury (TBI) Presumptions (presumptive conditions associated with TBI)
  2. Final Thoughts

Video Transcription.

Maura: Good afternoon everyone. Welcome to today’s Facebook live discussion. My name is Maura Clancy. Were here at Chisholm Chisholm and Kilpatrick in Providence, Rhode Island. I’m joined today by Lindy Nash and Nick Brigss. Lindy and I are attorneys here at the firm and Nick is an accredited V.A. Claims agent that works with us at Chisholm Chisholm and Kilpatrick.

Today, we’re talking about Traumatic Brain Injuries or TBI’s as we’ll be calling them throughout the discussion. Just as a preliminary matter, we are going to be posting any material that we think would be helpful, to flush out some of the ideas that we talk about in our discussion today in the comments section next to the Facebook video. So, please feel free to utilize the comment section and look at any blog post that we post for your review and for any other information that might be helpful to our discussion today.

Also, we’ll be taking questions. If anyone wants to submit a question, also through the comments section on Facebook. So, if there’s something you wanna ask, put the questions in the comments and we’ll do our best to get to any of them, or as many of them as we can today.

So, Lindy, why don’t you start us off. Tell us generally what a traumatic brain injury or TBI is, and a question that we see often is, is it the same thing as a concussion or is it something more?

Lindy: Sure, TBI, Traumatic Brain injury, usually to the head that disrupts the normal functioning of the brain. So, a concussion is something that we see all the time and that is a type of TBI but they aren’t necessarily the exact same thing. So, usually with concussions, you think about sports injuries, so any kind of high impact. Football players have concussions and TBIs all the time. That is the first thing you think of, and a concussion is more of when you’re hit, hard blow to the body or you hit your head on the ground your brain shakes around at a rapid pace and causes a lot of brain damage or brain cell damage. So, that really is what a concussion is. So, they’re not exactly the same thing, but we do often associate a concussion with a TBI.

Maura: And, you mentioned football injuries,–

Lindy: Yes.

Maura: impact on the head that causes disruption to the brain’s functioning. In the context of the cases that we see, working on Veteran’s disability benefits claims, what are some common causes of TBIs that a person might have had in service?

Lindy: Sure, so in service a lot of time see TBIs after an IED explosion, an Improvised Explosive Device, any other physical combat injury, a physical assault, even military sexual trauma, car accidents. They really can occur anywhere in service and they are a frequent thing unfortunately.

Maura: And, Nick how are TBIs diagnosed?

Nick: Sure, so when a TBI initially happens it’s going to be characterized as either mild, moderate, or severe and these characterization, classifications are based off of MRI and PET scan results. The length of time that an individuals an altered state of consciousness. Also, periods of loss of consciousness, as well as some more severe injuries where the veteran might go into a coma.

Maura: And, what are we, when we talk about the different types of initial TBI diagnoses and these terms you mentioned; mild, moderate, severe. What’s the recovery time for those? I would imagine it differs, depending on the severity.

Nick: Sure. In the case of a mild traumatic brain injury like a concussion, you’re usually looking at about a 6-month period of  time in which case most of the residuals are going to resolve, but there are obviously going to be more severe, moderate, or severe Traumatic Brain Injuries where the residuals may never resolve and they might continue to develop over the course of many years thereafter.

Maura: And, how does the VA measure the severity of an initial trauma to be able to diagnose a TBI?

Nick: They look at a number of different factors. Like, I mentioned before there’s the Glasgow Coma Score. There’s the period of altered state of consciousness, loss of consciousness and post traumatic amnesia. So, in the specific case of loss of consciousness, if a veteran loses consciousness for 0 to 30 minutes, you’re looking at a mild Traumatic Brain Injury. If it’s anywhere from 30 minutes to less than 24 hours, it would be characterized as moderate, and anything longer than 24 hours would be considered a severe traumatic brain injury.

Maura: And so, all of this that you’ve been talking about, all this criteria is relevant to the initial diagnosis of the TBI?

Nick: Yeah, and how it’s classified at the time.

Maura: But, the classification of the TBI in service isn’t necessarily going to limit the severity thereafter that a rating for compensation purposes can be based on. Is that right?

Nick: Sure, it has some bearing on certain presumptions regarding secondary conditions which we’ll talk about a bit later, but in terms of how the condition is rated, no, the initial characterization doesn’t have any impact.

Maura: Okay, so assuming that you get through the process of becoming diagnosed with a TBI and you want to file a claim for disability benefits for the TBI or for the residuals related to it on the basis that you believe the TBI occurred in service. Lindy, could you tell us about, first, what should the claim say? Should the claim just say, “I’m filing a claim for a TBI” or should you be more specific about the residuals that you have from the TBI? And then also, could you tell us what those residuals are?

Lindy: Yes, so to answer the first part of your question, you can technically file for both. So, you can file for Service Connection for TBI or you can file for the residuals or both. And so, I think Nick and I, in our practice we would probably suggest you file for the residuals and be really clear with VA what is going on, the symptoms you’re experiencing every day due to your TBI. But, we keep talking about residuals so I’ll give you some examples. We see all across the board different types of symptoms from a TBI. That could be anything from headaches, visual impairment, hearing loss, poor judgement, depression, aggression, gait balance, coordination disorders. There’s a whole list, tons of different symptoms from TBIs. If you experience any of those, we would both suggest you file, explicitly for those, and you can say, residual of a TBI or be as specific as you can. So, those are the typical residuals that we think of, but then again that list is not exhaustive.

Maura: Thanks Lindy, once again everyone, just to let people catch up, we are here at Chisholm Chisholm and Kilpatrick in Providence, Rhode Island. My name is Maura Clancy. I’m here with Lindy Nash and Nick Briggs. As we mentioned before, in case you missed it, today we are talking about Traumatic Brain Injury or TBIs.

Lindy just brought us through the process of how to file a claim for a TBI, a brief version of that, but I think Lindy makes a good point if you want to file a claim for a TBI, if you believe that you have a TBI and residuals that are due to  service, it’s probably a good idea to be detailed in your claim. Of course, if you file a claim for a TBI usually the duty to assist is gonna kick in and VA is going to have to figure out  what the residuals are, but at the same time it really can’t hurt to be specific and tell VA, give them an explicit notice about what kind of residuals do you think you have due to the TBI, what types of impairment.

Lindy: Be as explicit as you can, take any guess work out of it for the VA, I would suggest.

Maura: What kind of evidence, not to get to far into a discussion about types of evidence to support the claim but in addition to lay statements, can you think of any other helpful tips that might guide people on the right path in term of what they should submit?

Lindy: Yeah, I automatically think of a severity statement, a detailed affidavit from you letting us or the VA rather know your experience, where your TBI came from, the symptoms you’re experiencing, and any medical opinions you have from your treating physicians or maybe you saw during service, or shortly after or even years after. Something important to know is that it’s okay if you experienced your TBI, 10 years ago in service. I wouldn’t prevent that, I wouldn’t stop that, I wouldn’t stop you from filing for it just because of that. Those are some piece of evidence that I would think of. Nick, do you have anything to add?

Nick: Yeah, one thing to keep in mind on the lay statement front is statements from friends and family members as well.

Lindy: Yes.

Nick: They’re just as likely to be able to speak how severe a veteran’s memory impairment is and how it actually affects them on a day to day basis. So, it would be helpful to get statements from them as well.

Maura: Great. So lay statements can be very important, not just from the person that’s suffering from the TBI, but also people close to the veteran who have witnessed the effects first hand of the TBI, can speak to how severe the symptoms are, the residuals are.

Also, as Lindy mentioned, medical evidence is great. Not always required because VA will at some point likely have to assist you in gathering medical evidence to support your claim, but if you have treatment records, if you have doctor opinions, those could be really helpful as well.

Nick, can you bring us through how VA goes about rating TBIs? It seems like there’s a TBI and there’s a ton of residuals. So, how does VA figure it all out and condense that into a rating for the person who’s filing the claim?

Nick: Sure, so the rating scheme for Traumatic Brain Injuries is one of the more complicated of the rating schemes that they have available for different conditions. Because obviously, many of the different residuals a veteran can be diagnosed with are contemplated elsewhere in the rating criteria, but because of their origin, from a TBI, there might be different ways in which they have the veteran as compared to a normal headache for example. So, what VA does is they take a number of different facets. There are several examples including altered judgements, impairment of memory attention, concentration and executive function, generally. And another facet would be subjective symptoms like headaches. And for each of those facets, a VA examiner will assign a rating, a numerical score ranging from 0 to 4, 0 being mild to a 4 being totally in occupational impairment. Some of the different facets can’t be rated as totally disabling, subjective symptoms for example, whereas something like impaired executive function that is severe and totally disabling can be assigned a 100% rating.

Maura: It sounds like a very complicated scheme like you said. Any tips about common errors that we see with the way VA applies the rating schedule for TBIs?

Nick: So, one thing that we mentioned before is the idea of multiple residuals being related to a TBI. So, you might imagine a scenario where a veteran suffers from psychiatric disabilities, cognitive disabilities and headaches. I hate to keep going back to headaches.

Maura: It’s a common one.

Nick: But, they are the most common one. So, in that example there’s going to be a lot of overlapping symptoms between the cognitive disorder and PTSD or the Psychiatric Disability. In that case you’re only going to be rated once for those overlapping symptoms but, in the case of headaches if it’s a separate diagnosis and it has its own set of impairments, it should be rated separately. But, a lot of the time, VA is only going to assign that one 70% rating for the psychiatric condition and improperly conflate it with the headaches which could be rated separately.

Maura: So, this, as Nick is alluding too can be pretty complicated stuff. It’s hard for us to wrap our minds around all the time. Definitely think about seeking representation if this is something that you’re navigating. If you’re worried about VA properly rating the severity of your TBI. It’s definitely a complicated subject.

And, you mentioned the concept that there can be some overlap. So, TBI residuals and symptoms might overlap with other conditions that a veteran might have that is either service connected or non-service connected. So, Lindy, could you tell us about what happens if a veteran’s service-connected symptoms of a TBI overlap with other conditions that they have?

Lindy: Sure. Nick touched on this a little bit but the keyword that we always think about  is pyramiding. Pyramiding is not good. Basically, VA doesn’t want to compensate twice for the same thing. We call that pyramiding. Say, you are connected service for PTSD, and you have a 50% rating due to severe memory loss from your PTSD, then you also have a TBI and your main residual is also memory loss.  They don’t want to compensate you twice for that memory loss. Memory loss is memory loss and they don’t want to give you extra money for the same thing, basically. It’s really important to be clear about what your symptoms are and hopefully, get compensated for the different symptoms that you have.

If you are service connected for PTSD, maybe you have difficulty with relationships or suicide ideation, or other things that are on those lines. But your headaches and your memory loss or with your TBI. Hopefully, in that situation you will be compensated for both. That is something that VA does get wrong. Sometimes they do get it right but it is something to keep in mind.

Maura: For the reinforcing that this is complicated stuff, that makes sense. You can’t receive compensation for the same symptom via two separate ratings. As Lindy mentioned sometimes you might get a rating for PTSD that contemplates a residual, that’s the same from your TBI or might stem from your TBI, but if you see that VA is not compensating you twice for that same symptom, that’s why because they do have a rule against pyramiding. But, at the same time they’re not allowed to conflate all of your symptoms and say they’re all attributable to both disabilities so they won’t compensate them. The bottom line is your symptoms should be accounted for in one of your ratings at least.

Nick: And then one other thing to keep in mind is that VA has an obligation to assign you the highest possible rating. One of the areas where we see this come up is yet again, headaches. Where under the diagnostic code for headaches, you can get a 10% 30% or 50% rating, but under the TBI schedule, you can get a 40% rating, but obviously if your headaches are severe enough to warrant a 50%, VA is to rate you under that alternative diagnostic code. And they don’t always get that right.

Maura: Once again, everyone, we are here with Chisholm Chisholm and Kilpatrick in Providence, Rhode Island. My name is Maura Clancy. We have Lindy Nash and Nick Briggs with us today. We’re talking about Traumatic Brain Injuries. Just a reminder that if you have any questions, please leave them in the comments feed that’s next to this video. Also, please feel free to take advantage of any additional materials that we post in the comments section on Facebook.

We’ve covered some topics that we’re gonna talk about today in other videos in more depth. So, we’ll try to post on a blog post or videos that are relevant and would be helpful to you.

Lindy was just talking about pyramiding, Lindy and Nick were both talking about the concept of pyramiding and making sure that all of your symptoms are accounted for but with the caveat that they’re only going to be accounted for once in your ratings. But, something else that comes to mind as we talk about pyramiding is also the concept of secondary service connection. We have done a video on this in the past. I believe we’ve got blog posts on this from the past as well.

In the context of TBIs, Lindy, can you tell us what happens if you have a service connected TBI but then it causes another condition? How does the concept of secondary service connection work in that context?

Lindy: Sure, so secondary service connection is the basic principle that if you’re service connected for one disability and that disability causes or aggravates an underlying disability, you can be service connected for that as well. So, one example that we’ve used in the past is, if you are service connected for TBI and say you’re on a certain medication for it and that medication causes an ulcer which is obviously uncomfortable, you can actually get service connected for that ulcer because had it not been for your TBI, you would have not taken those medicines and therefore you would not have developed the ulcer. So, that’s one example.

Another one that we’ve brought up previously is if you have a service connected TBI, again, this is an aggravation example and maybe that TBI causes anxiety and you have a high anxiety level, you already had a preexisting hypertension condition. However, that anxiety from your TBI aggravated your hypertension therefore you can make an argument that your hypertension should also be service connected. So those are two examples of secondary service connection involving TBIs.

Maura: Makes sense. So, the important thing there I think is that secondary service connection, you’re not limited to a condition that arose in service or was directly caused by service.

Lindy: Right.

Maura:  If it’s caused by a service-connected condition, you get to go down the chain of causation as we say and figure out what are the service-connected conditions that you have? Are they causing any secondary conditions? And is service connection warranted for those secondary conditions? Either because the service connected caused them or aggravates them and makes them worse beyond what they would be but for the service-connected condition.

Maura: That’s a mouthful. Like I said, we have previous videos and blogs posts about secondary service connection and I believe we’ve got some helpful graphics too. If that’s something that you think applies to your circumstances, definitely check out those materials. And Lindy, I’m going to come back to you again.

Lindy: Yes.

Maura: I wanna know, could veterans with TBIs also be eligible for other VA benefits? Other than just the schedule of rating that they receive for the TBI itself, are there any other benefits are warranted for TBI inflicted persons?

Lindy: Yeah, definitely. Something I think of right away is special monthly compensation, SMC. Maura and I did a Facebook Live a couple of weeks ago you can check it out. Basically, special monthly compensation, if you have a TBI there are certain levels of SMC that I think would be applicable to you.

So, the first one would be SMC(l), if you have a TBI that causes the need for regular aide and attendance, whether that’d be from a spouse or someone in the family or a friend who helps you with regular activities of daily life, you can apply for SMC at the L level and hopefully get compensated for that.

Even higher than that, a level SMC(t), is specifically for people with TBI. So, If you have a service connected TBI and you require aide and attendance by a licensed medical professional, not just a regular A and A but a higher level of A and A. So, it must be someone like a licensed medical professional then you can apply for SMC-T. It’s actually a very significant payment. It’s about $8500 a month. So, that is the highest level of SMC or one of the highest available. So, those are two different types of SMC that I think, if you have a TBI you would be entitled to.

And additionally, something to always keep in mind is that if your TBI prevents you from working, you’re able maintain or obtain substantially gainful employment, you can always apply for a TDIU, which is Total Disability based on Individual Unemployability. That is a mouthful. TDIU. You can apply for TDIU if your TBI does not allow you to work. So, those are some higher levels of compensation that you should consider.

Maura: So, TDIU, as Lindy mentioned is something that’s on the table if any of your service connected conditions prevent you from working. That’s a whole separate topic that we’ve dealt with in various other blog posts and videos. The takeaway is that if the TBI is severe enough itself to prevent the veteran from working and if the veteran is not getting paid at the 100% rate for the TBI, it is possible to receive compensation at the 100% rate. Anyway, if you can demonstrate that the TBI symptoms and the impairment that they cause render you unemployable.

And then, also SMC(t) which is specifically for TBIs that’s what it’s designed for and also as Lindy mentioned SMC based on the need for aide and attendance. That’s another one that’s not limited to persons with TBIs. Sometimes the symptoms that come from TBIs such as memory loss, maybe a veteran forgets to take his or her medications and needs a person to assist them and remind them to do that, that would qualify for that type of SMC. Did you want to add anything to the SMC discussion, Nick?

Nick: I’m good.

Maura: Did we cover it?

Nick: Yeah, I think we got it.

Maura: So, Nick tell us about any conditions that VA recognizes as associated with TBIs. Not just secondary conditions, not just SMC benefits, but are there any presumptions that VA has in affect?

Nick: I mentioned this a bit earlier, but this is really the one area where the initial characterization of the Traumatic Brain Injury comes into play. So, if the TBI is characterized as moderate or severe, certain conditions are assumed to be related to the TBI unless VA can establish by clear evidence that it’s related to something else. So, for some examples, if Dementia develops within 15 years of a moderate or severe TBI, then VA going to assume that the Dementia is related to the TBI.

In the case of Parkinson’s Disease specifically, there is no limited time frame so if that condition develops at any point after a moderate or severe TBI, VA again is going to assume that it’s related to the injury.

Maura: Okay. Good to know. And, this last question that we have is for both of you. As we said before, this is a complicated rating scheme, at least as it pertains to how TBIs are rated and then the initial diagnostic criteria in terms of getting diagnosed with a TBI is also very complicated. So, are there any common errors that we see and any advice or tips from either of you as to how to hurdle those issues as they come up for people that are either claiming either service connection or an increased rating?

Nick: Sure, so, I mean, obviously this is a pretty complicated area of the rating schedule, one of the common things I see when we’re reviewing CMP exams is the fact that some VA examiners will dismiss many residuals that a veteran complains of because they were only diagnosed with a mild Traumatic Brain Injury. But, like we mentioned earlier the initial classification has nothing to do with the current severity of the condition. So, just keep an eye out for that because at the end of the day, the VA examiner can’t dismiss a symptom merely because the injury wasn’t considered moderate or severe back in the day.

Maura: To the tip?

Lindy: To reiterate what we said before, don’t forget about lay statements from yourself, severity statements, buddy statements from your friends or family or someone who maybe served with you, medical opinion, any sort of medical service record, post service record. Anything to show VA what you’re dealing with and what you’re going through. And, like I said, your TBI is rated on your current symptoms so it doesn’t matter if your TBI occurred 10 years ago but all of a sudden you’re experiencing these symptoms, that’s okay. And I would just file for everything. Be really explicit and let VA know what you’re experiencing.

Nick: At the end of the day, most veterans are not medical professionals so they’re not going to necessarily know what condition is related to a TBI and what isn’t. So, you’re better off being as clear and specific as possible from the very beginning and letting the examiner source[?] it out there after.

Maura: Perfect, any additional questions? Great. Thank you all for joining us today. Again, we are here at Chisholm Chisholm and Kilpatrick in Providence, Rhode Island. Thank you again and we hope to see you next time.