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