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Do You Have the Evidence Necessary to Support Your Child’s Claim for Disabled Adult Child Benefits?

After a Claimant has applied for Disabled Adult Child (DAC) benefits, s/he must then present objective evidence in support of her/his assertion that the disability began prior to age 22. It is especially important to retain medical and school records during the ages 18-21, as though these documents were made of gold!

The DAC benefit program was designed for adult children who likely did not get an opportunity to work long enough to earn work credits on his/her own Social Security account. And, if the adult child has an eligible parent – one who is deceased, retired or receiving disability, then s/he should be encouraged to initiate a claim for DAC benefits.

Of considerable importance, it should be noted that there is no age limit as to when an adult child may initially apply for DAC benefits! Case in point – A disabled adult, age 27, has been deemed disabled by the Social Security Administration and is now receiving SSI benefits only. If s/he then becomes a technically eligible adult disabled child because a parent started receiving Social Security retirement benefits, the disabled adult should see whether s/he may be able to submit an application for DAC benefits. An approval of DAC benefits would likely increase the disabled adult child’s monthly benefit and allow him/her to become eligible for Medicare benefits.

Another example – a disabled adult, age 32, was already receiving SSDI benefits based upon his own work history and earned work credits. However, he subsequently learns of the DAC benefits and has a deceased parent. The disabled adult should look into whether he may be able to obtain a higher monthly benefit based upon the parent’s account.

However, in these cases, as is all DAC claims, the claimant MUST show a disability prior to age 22. It is critical for families and claimants to save childhood IQ examination results, for if the disability is due, at least in part, to a diminished IQ or even mental retardation, the Administration needs those childhood IQ scores. Additionally, other supporting evidence is necessary to determine the claimant’s medical eligibility – special education evaluations that memorialized the student’s accommodations at school, report cards, diagnostic reports, treatment records, and mental health notes are all examples of highly important documents to be submitted in support of a DAC claim.

Medical providers are not required to hold onto these records forever. Most providers and facilities only retain these records for 7 years; although, it should be noted that if a private practice physician retires or passes away, it is often extremely difficult to track down the location of any archived records. Consequently, families with disabled children should work hard to keep a copy of any medical and education records.

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by Attorney Randi Johnson
September 26, 2014

VA Wins the Ice Bucket Challenge: VA Disability Benefits for ALS

Amyotrophic lateral sclerosis (ALS) or Lou Gehrig’s disease has been all over social media lately due to “Ice Bucket Challenge” videos attempting to raise awareness and funds for research. ALS is a devastating progressive neurodegenerative disease which affects nerve cells in the spinal cord and the brain.

As I’m sure you know, qualifying for VA benefits is sometimes a long and difficult task. Interestingly, the Department of Veterans Affairs has an incredibly favorable regulation governing benefits for veterans suffering from ALS which removes some of the barriers commonly faced by veterans attempting to gain benefits for other disabilities.

For most disabilities, a veteran must prove that his current disability either began during service or was caused by something that happened while he was in service. In certain circumstances, the veteran must only prove that his service meets certain requirements (such as service in Vietnam and/or exposure to Agent Orange or service in the Persian Gulf). Then if that veteran develops one of a number of disabilities that VA lists as being caused by that type of service, he is presumed to be service-connected for that disability.

For ALS, however, the veteran need not prove anything. Essentially, the VA’s ALS regulation provides that service connection will be automatic for almost any veteran who is ever diagnosed with ALS. There is no time limit in which ALS must be diagnosed. A veteran can be diagnosed 10 or 15 years after discharge and still be entitled to service connection for ALS.

The only requirement the veteran must meet in order to qualify for service-connection for ALS under the VA’s regulation is that the veteran must have served for at least ninety (90) days. The only way for VA to deny service connection for a qualifying veteran is to find affirmative evidence that ALS wasn’t incurred during service or that the veteran’s ALS is due to willful misconduct. Both of these scenarios are highly unlikely to occur as it would be nearly impossible to prove either one.

Unfortunately, one other stumbling block is that the ALS regulation currently only applies to veterans of one of the major branches of service and has been determined not to apply to members of the National Guard or Reservists…even those who were called to active duty for more than 90 days. This issue, however, is currently being litigated in the courts, and we are hopeful that in the future any veteran who has 90 days of active duty will be entitled to the protections of this regulation.

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by Attorney Shannon Brewer
September 25, 2014

Could my adult child’s conditions qualify him/her for a Disabled Adult Child claim?

Real World Examples:

  • An 18 year old boy leaves home for the exciting world of college. First semester goes swimmingly! Parents start receiving late night erratic phone calls and messages from son. But, at other times, son sounds just like “himself.” He returns home for the summer and works all summer in his first ever job. Second year, son leaves for college again. Those erratic messages and phone calls become ever more frequent. At first, parents think maybe he’s partying and drinking. Then, the messages and calls come at all times of the day and the ‘lucid’ boy doesn’t seem to ever return. One night, parents receive a call from the psychiatric ward at the University hospital. Son was admitted for delusional behaviors. He is diagnosed as a schizophrenic.
    • What now? This now 19-year old young man clearly does not have enough work credits to provide eligibility for a Social Security Disability Insurance Claim. Additionally, he is no longer considered a child in the eyes of Social Security. How can the parents help get their son benefits and some income stability?
    • A Disabled Adult Child claim may be the answer. If one of the parents is retired, deceased or disabled, this Adult Child may be eligible to obtain monthly benefits on that parent’s Social Security account. Additionally, the son may then also be eligible for Medicare
  • A 21-year old young woman has an IQ score of 70 (average IQ is 100). As compared to her peers as a child, she functioned reasonably well and she suffered no other physical or mental limitations. However, while walking to her 4-hr per week volunteer job at the library, she is struck by a car. The young woman is significantly injured – while she finally healed from her physical injuries, she now suffers from PTSD that causes very real anxiety despite treatment. This young woman never worked a ‘real job’ and therefore earned no work credits to her name.
    • She may be eligible now for a Disabled Adult Child claim. These additional benefits could help her and her family. Her family will be relieved of the financial burden of supporting an adult disabled individual and the young woman will have access to mental health resources to potentially work through her anxiety-related disorders.

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by Attorney Randi Johnson
September 24, 2014

The VA denied my claim, should I appeal or request “reconsideration”?

The average processing time of Veteran appeals during 2013 – 562 days. The current inventory of pending Veteran appeals – 256,061 and growing every single day. The statutory time limit to submit an official Notice of Disagreement after receiving rating decision notifications – only 365 days. Veterans have painstakingly navigated the daunting and cumbersome claims process for generations. Unfortunately, deciding how to respond properly to unfavorable decisions has been and remains very confusing for many Veterans – especially when the concept of requesting “reconsideration” is commonly misconstrued and improperly applied.

Requesting “reconsideration” is a term used within the legal profession and found in numerous areas of law including civil litigation, government contract negotiations and administration of various Federal benefits including Social Security and Veteran disability compensation. However, in the context of Veteran benefits requesting “reconsideration“ exists officially at only the Board of Veterans Appeals (BVA) level and is actually very limited in scope. To properly request “reconsideration, filing an official “motion” is required although restricted only to matters regarding whether “clear and unmistakable error” has occurred and involves specific filing criteria.

At some point, Veterans – including some Veteran Advocates – began to request “reconsideration” of denied claims at the Regional Office (RO) level as opposed to submitting an official Notice of Disagreement – which is exceptionally hazardous for Veterans because no law or regulation specifically governs this process at the RO level. In fact, VA does not even publish statistics regarding these requests at the RO level. This lack of clarity means each individual RO frequently interprets and responds to these requests untimely, inconsistently and inaccurately – such as processing the request as intent to reopen the denied claim. The ambiguity also leaves little to virtually no accountability and thus may lead to disastrous results for Veterans – specifically loss of appellate rights and entitlement to an earlier effective date. In this scenario, requests for “reconsideration” have rarely been accepted as an official Notice of Disagreement under only liberal circumstances depending primarily on the precise verbiage of the document.

Important, Veterans who request “reconsideration” at the RO level do not receive additional time past the 365-day limit to submit an official Notice of Disagreement. In other words, eleven months spent waiting for “reconsideration” leaves only one month to submit an official Notice of Disagreement and anyone experienced dealing with VA knows one month is hardly much time. Further, the likelihood of receiving favorable responses from “reconsideration” at the RO level is miniscule considering the same VA employee will likely review your claim again.

The desire to receive “reconsideration” faster than awaiting the appeal process to unfold is understandable considering the disheartening time involved before appeals are completed. However, it is vital to remember and consider no governing statute or substantive data outlines what to expect when requesting “reconsideration” at the RO level. When deciding whether to request “reconsideration” or submit an official Notice of Disagreement, be sure to weigh known risks and benefits carefully before taking any action you may later regret.

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by Eric Cook, Veterans Claims Advocate
September 22, 2014

What Thailand bases does VA admit were exposed to Agent Orange?

Thailand Military Bases and Agent Orange Exposure

Finally, some good news for U.S. Veterans who served in Thailand during the Vietnam conflict; the VA has conceded that Vietnam-era Veterans whose service involved duty on or near the perimeters of U.S. military bases in Thailand anytime between February 28, 1961 and May 7, 1975 may have been exposed to herbicides and qualify for VA benefits. A recently declassified Department of Defense report written in 1973 titled, “Project CHECO Southeast Asia Report: Base Defense in Thailand 1968-1972,” contains evidence that there was a significant use of the herbicide Agent Orange along the fence-line perimeters of military bases in Thailand to remove foliage that provided cover for enemy forces. The VA acknowledges the herbicides used on the Thailand base perimeters may have been tactical and procured from Vietnam, “or a strong, commercial type resembling tactical herbicides.”

Who is Eligible?

The VA concedes the following Veterans may have been exposed to herbicides: U.S. Air Force Veterans who served at Royal Thai Air Force (RTAF) bases at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975; U.S. Army Veterans who provided perimeter security on RTAF bases in Thailand anytime between February 28, 1961 and May 7, 1975; and U.S. Army Veterans who were stationed on some small Army installations in Thailand anytime between February 28, 1961 and May 7, 1975. However, the VA will only concede exposure for the Army Veteran IF he was a member of a military police (MP) unit or was assigned an MP military occupational specialty whose duty placed him at or near the base perimeter.

What Evidence is Needed?

To receive VA disability benefits for diseases associated with herbicide exposure, Veterans who served in Thailand must show on a factual basis that they were exposed to herbicides during their service as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Veterans who were exposed to Agent Orange or other herbicides during service may be eligible for a variety of VA benefits, including an Agent Orange Registry health exam, health care, and disability compensation for and of the fifteen presumptive diseases associated with exposure to Agent Orange. If a Veteran does not have any of the above mentioned evidence, the VA will help him develop his claim to determine whether they will concede he was exposed to Agent Orange or other herbicides during military service.

VA Agent Orange Registry

Veterans who served in Thailand will likely be eligible for a free Agent Orange Registry health exam; they don’t have to file a disability compensation claim to receive the exam. If you are interested in receiving an Agent Orange health exam, contact your local VA Environmental Health Coordinator at a local VA Medical Center. Further, if you or your spouse served in Thailand and were denied VA disability compensation for Agent Orange related disabilities, we encourage you to contact us to help you fight for your entitlement.

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by Matthew Hill
September 22, 2014

Analogous Ratings

When the VA awards service-connection for a condition/disease, it has to determine how much to award for the condition/disease. To facilitate this process, the VA has created a ratings table that lists conditions and diseases, and how to rate them according to the severity of the symptoms. As extensive as this table is, it cannot possibly list every condition that can affect the human body. Therefore, in some instances, the VA has to use analogous ratings.

Analogous ratings are ratings for conditions that have no specific disability in the ratings table. In these instances, the VA must rate these conditions under a closely related disease or injury. Preferably, the unlisted and analogous rating should affect similar functions in the same part of the body and have similar symptoms.

For example, common conditions, such as Gastroesephegeal Reflux Disease (GERD), do not appear in the ratings table. In these cases, VA rating specialists have to find a diagnostic code that is analogous to the veteran’s symptoms. Aphasia, for instance, is a condition of the brain where someone is unable to understand and process language. If this was caused by an injury to the head, it is rated under Traumatic Brain Injury (TBI). But if it was caused by an illness or other condition, it is rated analogously under code 9305 (vascular dementia). A further example is Crohn’s disease. This is a condition that causes the bowels to become irritated and swell. This is rated under code 7323 (ulcerative colitis).

In circumstances in which the VA makes an analogous rating that does not accurately represent the veteran’s symptoms or the severity of the conditions, advocates can argue that a different diagnostic code be applied. For example, consider a veteran who has severe vertigo. Instead of rating it under the diagnostic code for Peripheral Vestibular Disorders (6294), an argument should be made for a rating under Meniere’s Syndrome (6205), which offers a 100% disability rating (provided that all the conditions are met).

Under 38 CFR § 4.20, the VA considers three factors in determining what analogous rating to use:

  1. The functions affected by the conditions
  2. The location of the conditions
  3. Whether the symptoms are similar

Once the VA makes an analogous rating, it must treat the disability as if it were the analogous condition. So if the rating schedule for the analogous condition changes, the veteran’s rating for the condition changes as well.

According to 38 USC § 5107 (a), when assigning a disability rating, and a question arises as to which diagnostic code to apply, the VA must apply the rating criteria that are most favorable to the veteran.

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by Mary Klements, Veterans Advocate
September 19, 2014

Agent Orange, Herbicides, and TCDD Explained

TCDD is 2,3,7,8-Tetrachlorodibenzodioxin, a chemical in a group of compounds named dioxins. It is what makes Agent Orange as notorious as it is, and is arguably the most toxic of all the dioxins, which is saying a lot, as dioxins are notoriously toxic.

TCDD wasn’t purposely part of Agent Orange, it’s a by-product of the process by which creates organochloride herbicides. Agent orange was intended to be a mixture of 2,4,5-Trichlorophenoxyacetic acid (2,4,5, T) and 2,4-Dichlorophenoxyacetic acid, (2,4-D) which were commonly used herbicides. There was already some controversy related to the health effects of these herbicides (particularly 2,4,5-T,) but it was the contamination of Agent Orange somewhere during the manufacturing process with TCDD that really made it so deadly.

Often, I hear people talk about illnesses related to Agent Orange as cause by “herbicide.” TCDD isn’t an herbicide, and wasn’t placed in there to kill plants, it was simply an accident, likely caused by Monsanto overheating the mixture during manufacture. (It’s interesting to note that other manufacturers, and even published, peer-reviewed studies had already warned that TCDD could be a contaminant when high temperature processes were used, but Monsanto used this method anyway, perhaps because it was cheaper or quicker.)

Even if the batch hadn’t become contaminated with TCDD, it would likely be the case that vets and civilians would have become ill, just due to the health problems associated with the herbicides, and the crazy amount they were spraying overhead. But TCDD is nasty, nasty stuff, even in small amounts.

Basically, TCDD activates proteins in our bodies called aryl hydrocarbon receptors, which help us protect ourselves from naturally-occurring toxic chemicals like benzene. These receptors trigger the production of enzymes called Cytochrome P450 to break down these hydrocarbons to protect our cells from the damage they cause. This is actually a GOOD thing, and we actually see with miniscule doses, LESS cancer and LESS diabetes in TCDD-exposed rats. However, as soon as you’re exposed to a decent dose for a period of time, everything goes haywire. The body can’t produce more P450 enzymes, so we are unable to break down toxins, and you see huge increases of cancer and the whole mess of health problems that we associate with Agent Orange.

It’s actually a very similar to the way heroin/morphine work and cause withdrawal. Heroin is an opiate receptor agonist, and TCDD is an aryl hydrocarbon agonist. When you take away the morphine, you get withdrawal symptoms because your brain stops making dopamine, since the heroin has been clogging up all the opiate receptors. With TCDD, instead of dopamine, you stop producing P450, whose job it is to break down all these cancer-causing hydrocarbons. It’s like letting loose a cancer free-for-all.

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by Chris Amidon, Veterans Advocate
September 16, 2014

Is my adult child eligible for something more than SSI? What are DAC benefits?

A Disabled Adult Child (DAC) claim provides Social Security Disability Insurance benefits to a disabled adult who can prove a medical disability resulting in an inability to work, prior to age 22. An adult disability claim for Social Security disability benefits entails a 5-step sequential evaluation:

First, a person must demonstrate that s/he is not performing Substantial Gainful Activity (SGA). For 2014, the threshold level for SGA is $1070/month for non-blind individuals. For blind individuals, SGA is $1800/month. Second, the Administration asks whether an individual has a Medically Determinable Impairment of at least 12-month duration, or likely to result in death. That is, has the claimant been diagnosed by an acceptable medical source (i.e, a doctor)? Third, a claimant’s impairment (or combination or impairments) are compared to the SSA medical Listings. If a claimant’s condition manifests itself in a way identical to or medically equal to the definitions and descriptions of the SSA medical Listings, the individual can be found disabled. If, however, the claimant’s impairments do not meet or equal the medical Listings, the analysis proceeds to the 4th and 5th steps of the sequence.

At step 4, a claimant must prove that the impairment preclude the ability to return to his/her Past Relevant Work (PRW). PRW is any work a claimant has substantially performed over the preceding 15 years such that it can be assumed s/he acquired the skills and/or familiarity to perform that job. If it is determined that the individual could not return to the PRW, then step 5 analyzes whether there are any other jobs exist in the economy in “substantial numbers” that the claimant could perform despite any limitations caused by his/her medical conditions.

At the time of a claimant’s Initial Application, it does not matter whether s/he is already receiving Supplemental Security Income (SSI) benefits. The claimant need only prove that the disability began prior to his/her 22nd birthday. Additionally, an individual is only technically eligible if s/he has a parent who is retired, deceased or disabled upon application for DAC benefits.

DAC benefits may increase a disabled person’s monthly income as compared to SSI benefits. The 2014 Federal Payment Amount for SSI is $721. However, DAC benefits are based upon the Disability Insurance benefits (DIB) of the parent’s account. Presently, the maximum DIB benefits is $2642 for 2014. As discussed in the first Blog about DAC benefits, a claimant is eligible for 50% of a parent’s monthly DIB if the parent is living, and up to 75% of the monthly DIB if the parent is deceased.

Additionally, a person is eligible only for Medicaid as a recipient of SSI; whereas, Medicare will kick in 29 months after the disabled individual is found disabled as a DAC recipient.

However, the DAC benefit is mainly for unmarried disabled adult children. Generally speaking, upon marriage, the eligibility for DAC ceases. There is an exception for disabled individuals who marry another Social Security disability benefit recipient.

The burden to prove Steps 1-4 of the sequential analysis is upon the person seeking DAC benefits.   Overcoming that burden and rebutting the Agency’s findings at Step 5 requires objective medical evidence, sound medical opinion evidence, and a strong knowledge of the Social Security Act and agency policies.

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by Attorney Randi Johnson
September 15, 2014

Traumatic Brain Injury – A New Rating System (Part 2: How VA Rates TBI – 38 CFR 4.124a)

When the VA rates residuals of traumatic brain injury, three main areas of dysfunction are considered: cognitive, emotional/behavioral, and physical. It is important to note that when the VA uses terms such as “mild”, “moderate” and “severe” when rating TBI, these terms refer to the classification of TBI made at, or close to, the time of the injury, rather than the severity of the current symptoms.

Cognitive Impairment

Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Not all of these brain functions may have been affected by TBI, and some functions may be more affected than others. Symptoms may even fluctuate from day to day. Cognitive impairment is rated by a table included in this regulation. Cognitive functional categories include:

  1. Memory, attention, concentration, and executive functions
  2. Misplacing
  3. Judgment
  4. Social interaction
  5. Orientation
  6. Motor activity (with intact motor and sensory system)
  7. Visual spatial orientation (maps, unfamiliar, following)

Cognitive impairment can also have subjective symptoms that may be only residuals of TBI or be associated with cognitive impairment or other areas of dysfunction. While 38 CFR 4.12a gives a rating chart for subjective symptoms, some residuals have a distinct diagnosis (such as migraines or Meniere’s disease), and will be rated under that specific category.

Subjective symptoms are rated under the following categories:

  1. Neurobehavioral effects
  2. Communication (language, gestures, spoken)
  3. Consciousness

Emotional/Behavioral Dysfunction

Emotional/behavioral dysfunction is rated under 38 CFR 4.130 (mental disorders) when there is a diagnosis of a mental disorder. If there is no diagnosis of a mental disorder, the VA will rate those symptoms according to the cognitive functional/subjective symptoms as described above.

Physical/Neurological Dysfunction

Physical/neurological dysfunctions are rated according the diagnostic code of the specific condition or symptom. These include:

  • Motor and sensory dysfunction
  • Visual impairment
  • Hearing loss & tinnitus
  • Loss of sense of smell and taste
  • Gait, coordination & balance problems
  • Speech and other communication disorders
  • Neurogenic bladder
  • Neurogenic bowel
  • Cranial nerve dysfunctions
  • Autonomic nerve dysfunctions
  • Endocrine dysfunctions

Special monthly compensation can be awarded for TBI for problems such as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance, being housebound, etc.

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by Mary Klements, Veterans Advocate
September 12, 2014

Traumatic Brain Injury – A New Rating System (Part 1)

Traumatic Brain Injury (TBI) has escalated in prevalence since the beginning of the Gulf Wars, and even more so as veterans of Afghanistan and Iraq start coming home. TBI is such a frequent occurrence that it has become known as the “signature injury” of Afghanistan and Iraq veterans. Insurgents would use roadside bombs (IEDs), fire bombs, and other explosives to fend off American soldiers. TBI is characterized by physical and psychological effects, and veterans often feel residual effects of TBI long after the initial injury.

A 2013 audit on the processing of TBI cases by the VA Regional Offices revealed that the VA makes significant errors on TBI cases. In fact, of the 77 inspections made on VA Regional Offices, VA staff had made errors in 31 % of the TBI cases reviewed. More than half of those errors were due to the staff using “inadequate medical examination reports to evaluate residual disabilities associated with traumatic brain injury” (Sondra McCauley, Deputy Assistant Inspector General for Audits & Evaluations, December 4, 2013). Furthermore, inspections and audits performed by the Office of the Inspector General have consistently shown that the VA Regional Offices do not always comply with the Veterans Benefits Administration’s national policy to accomplish their benefits delivery mission.

In response to a previous May 2011 report, the VA agreed to implement a second-signature policy on all TBI claims in order to ensure accuracy of TBI claims decisions. This second-signature policy would continue until the Rating Veterans Service Representatives (RVSR) demonstrate a 90 percent accuracy in TBI claims processing. In spite of the second-signature policy, however, errors continued to be made.

Because these alarming findings, the VA revised regulation 38 CFR 3.310 in order to help more veterans with TBI to qualify for benefits.

38 CFR 3.310

Before the proposed revisions were published, 38 CFR 3.310 already included a section on traumatic brain injury. This regulation defines how the VA determines disabilities that are proximately due to, or aggravated by, service-connected disease or injury. The revised regulation presumes service-connection to TBI for the 5 following conditions:

  1. Parkinsonism, including Parkinson’s disease, following moderate or severe TBI
  2. Unprovoked seizures, following moderate or severe TBI
  3. Dementia of the following types if manifest within 15 months of the injury:
    1. Presenile dementia of the Alzheimer type
    2. Frontotemporal dementia
    3. Dementia with Lewy bodies
  4. Depression, if manifest within 3 years of moderate to severe TBI, or within 12 months of mild TBI
  5. Diseases of hormone deficiency that result from hypothalamo-pituitary changes, if manifest within 12 months of moderate or severe TBI

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by Mary Klements, Veterans Advocate
September 11, 2014

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