How VA TBI Ratings Are Evaluated for Compensation

Traumatic Brain Injury (TBI) is one of the most common injuries found in former combat veterans. In fact, health officials have noticed an uptick in TBIs in military service members who served in Iraq and Afghanistan in the past decade. This guide will break down the basics of TBIs and how the VA rates them, as well as the requirements for proving secondary service connection. It will also look at TBI trends in veterans who served in Afghanistan and Iraq.

Understanding Traumatic Brain Injury & VA Ratings

A Traumatic Brain Injury (TBI) is a disruption of brain function resulting from a blow or jolt to the head or penetrating head injury.  A closed head injury occurs when the brain is not exposed, also called non-penetrating or blunt injury. A penetrating head injury, or open head injury, occurs when an object pierces the skull and breaches the dura mater, the outermost membrane of surrounding the brain.

There are several signs and symptoms of TBI to be aware of after a head injury. These include:

• any loss of consciousness
• attention issues
• headaches
• change in vision
• dizziness
• loss of balance
• sleep disturbances
• nausea
• irritability
• word-finding difficulties
• confusion

Memory loss is the most common cognitive impairment. Some people seek treatment for a TBI when they find themselves having difficulty walking a straight line. Others look for help when they have speech issues caused by muscle weakness that causes disordered speech. TBI commonly has neurobehavioral effects like depression and personality changes, as well as chronic pain and substance abuse disorder. A neurologist can link these symptoms to a TBI, ruling out other causes.

In addition to these generalized symptoms, TBI patients commonly suffer functional vision problems. These symptoms include:

• difficulty focusing
• double vision
• difficulty reading
• sensitivity to light
• aching eyes
• loss of visual field

It’s important to note that TBI symptoms can be different in every individual. The level of severity will depend on the nature of the injury, such as whether they experienced a closed or penetrating head injury. The VA takes several factors into account when a veteran makes a claim for a traumatic brain injury.

How Does The VA Review TBI Claims?

If you make a claim for disability compensation, it’s important to understand the VA disability rating criteria for TBI, as well as the medical evidence and symptoms that they review to arrive at the rating.

What TBI symptoms does the VA review?

The VA evaluates TBI symptoms as residual effects on current level of mental or cognitive function, emotional and behavioral function, and physical function. Through this full-body review, the VA can assign a disability impairment rating.

To start, it’s important to note that the VA defines cognitive functions as memory, concentration, attention, and executive functions of the brain.

• Executive functions include abilities for goal setting, speed of information, judgment, and decision making.
• VA evaluates emotional and behavioral functions based on a diagnosis of a mental disorder.
  • These may include inability to control anger, impulsiveness, and lack of initiative, inappropriate sexual activity, and poor social judgment.
• VA  evaluates physical functions under the appropriate diagnosis, which may include a neurological disorder.

The severity of TBI symptoms may fluctuate from day to day and from person to person. A TBI impairs brain function temporarily or permanently. Structural damage may or may not be detectable with current technology. Therefore, the VA has the duty to evaluate subjective symptoms as well.

You may have received a diagnosis with mild, moderate, or severe TBI close to the time of injury in service. The VA will not rate your disability based on those classifications while you were in service. Keep in mind that your disability rating is based on the current level of functioning at the time the claim is filed.

How Does The VA Rating For TBI Work?

The VA recognized the old schedule for rating brain disease due to trauma needed to be updated. In 2008, VA revised the rating schedule criteria. Where VA rated the veteran’s TBI residuals under the old version the veteran may request review under the new code. This is irrespective of whether his or her disability has worsened since the last review.

The VA reviews that veteran’s rating under the new codes to see if it should give the veteran a higher rating. In this instance, the VA will treat the claim as a claim for an increased rating. It is important to note that the VA will not assign an effective date before October 23, 2008.

To break down the numerical system of the rating, the VA evaluates TBI at 0, 10, 40, 70, and 100 percent. They recognize that there are certain cases so severe that warrant a rating higher than 100%, such as when the veteran cannot work due to the injury. The VA would then have to consider unemployability. These ratings are called special monthly compensation (SMC). There is a specific one just for TBI called SMC-T.

In order to be eligible for SMC-T, a veteran must show several factors:

1. The veteran needs aid and attendance
2. Without in-home aid and attendance, the veteran would require hospitalization, nursing home care, or another type of residential institutionalized care.
3. The veteran doesn’t otherwise qualify for a higher level of Aid & Attendance under 38 U.S.C.S. § 1114 (R-2).

To break this down further, the VA has a special definition for “aid and attendance.” A veteran must show that they are in need of aid and attendance by proving that they have the inability to perform specific daily functions. This includes:

• Inability to dress and undress without assistance
• Inability to stay clean and presentable without assistance
• Inability to feed themselves without assistance
• Inability to attend to the wants of nature
• Exposure to hazards and dangers incident to daily environment

If a veteran can prove all of the above factors to be true, they may be eligible for a 100% rating or more through unemployability. This then makes them eligible for special monthly compensation for their injuries.

What About Secondary Service Connection?

When a veteran seeks disability benefits for a TBI, it’s possible that they may also qualify for benefits for secondary service connection. This means that the veteran has other conditions that developed as a secondary result of TBI.

Officials actually adjusted the secondary service connection regulations for TBI in 2013, connecting several illnesses to this condition. These conditions include:

• Parkinsonism (including Parkinson’s Disease) following moderate or severe TBI
• Dementias (presenile dementia of the Alzheimer’s type, frontotemporal dementia, and dementia with Lewy bodies) that develops within 15 years of moderate or severe TBI
• Unprovoked seizures following moderate or severe TBI
• Depression that manifests within three years of moderate or severe TBI or within 12 months of mild TBI
• Disease of Hormone Deficiency (resulting from hypothalamo-pituitary changes) that manifests with 12 months of moderate or severe TBI

These all can apply toward a secondary service connection claim, unless there is clear evidence to demonstrate the contrary. Since the above conditions can potentially inhibit your ability to work and perform daily functions, you might decide to seek VA evaluation for the disability.

How Does VA Determine Secondary Service Connection?

The VA determines a veteran’s eligibility for secondary service connection based on the severity of the TBI, as well as the time between the original injury and the onset of the associated medical condition. If a veteran meets the qualifications, meaning that the TBI was severe enough and fit within the listed time frame, they don’t need to seek a medical opinion to be eligible for benefits.

As for determining the severity of a TBI, there are several factors that the VA considers. These include structural imaging, loss of consciousness, alteration of consciousness/mental state, and post-traumatic amnesia. They also use the Glasgow coma scale in their assessment if the veteran’s TBI resulted in a coma. Depending on the severity and combination of these factors, the VA classifies the TBI as mild, moderate, or severe. However, it’s important to note that a veteran doesn’t need to demonstrate all of these factors to fit into one level of severity. The veteran also would qualify for the highest level of severity if they meet the criteria for multiple levels.

Again, if the TBI is severe enough and the secondary condition appeared within the listed time frame, a private medical opinion is not necessary. However, keep in mind that it can still be helpful to gather evidence when applying for secondary service connection. And this can include past medical reports. By collecting this evidence, you are helping to ensure a more accurate VA evaluation. You can also avoid seeking a medical opinion while the evaluation is ongoing.

Acceptable Evidence for VA TBI Claim

Examples of acceptable evidence may include medical reports from past exams, statements from the veteran, service treatment records that followed the TBI, and witness statements regarding the original injury. All of these pieces of evidence should be from the time of the TBI or shortly after.

To summarize, some veterans may be eligible for benefits based on the original TBI and secondary service condition. Since the combination of these qualifications can be complicated, it’s important to gather as much evidence as possible and work with a reputable lawyer to put together a case. Doing so will create a stronger claim and for disability benefits.

Traumatic Brain Injury Increases in Iraq & Afghanistan Veterans

More than 19,000 service members were diagnosed with mild traumatic brain injury, or concussion, in 2010, according to the Defense Centers of Excellence website. The signature injury of the war in Iraq and Afghanistan is residuals of TBI. The increase is linked to the common use of roadside improvised explosive devices or IEDs, and the resulting blasts.

The VA has made brain injuries a leadership priority. They recognize the critical challenge of TBI and concussion as signature injuries of modern combat and one of the leading combat injuries in recent years [American Forces Press Service, March 14, 2011]. Studies have estimated that about 20% of soldiers returning from Iraq and Afghanistan have suffered at least a mild traumatic brain injury while deployed. Of those, anywhere between 5% to nearly 50% may suffer both post traumatic stress disorder (PTSD) and lingering problems from traumatic brain injuries as well [ProPublica, and Daniel Zwerdling, NPR March 13, 2012].

What Has Caused These TBIs?

Common causes of TBI or concussion in active duty include blasts, vehicle collisions, or blows to the head. There are four categories of TBI including mild, moderate, severe and penetrating. A mild TBI, which is also known as a concussion, is the most common form of TBI. Although most people recover from mild TBI, the outcome of mild-penetrating TBIs can range from complete recovery to permanent disability or death.

Scientists at the National Institute of Neurological Disorders and Stroke (NINDS), part of the National Institutes of Health, are studying the effects of TBIs on the brain and the brain’s response to injury. There is more than meets the eye following even a mild traumatic brain injury.  Oftentimes, initial scans do not reveal any physical damage to the brain tissue. However, recent studies by NINDS have shown that there may be therapeutic modalities to decrease the brain damage of TBI if treatment is rendered within hours after the injury. Unfortunately, a service member in the battlefield is not afforded immediate medical treatment. More often than not, a veteran may not seek treatment for TBI symptoms until discharge from service. This may be in part due to lack of comprehension about the signs and symptoms of TBI not only by the veteran but oftentimes the VA medical community.

Veterans may be entitled to disability benefits if they can prove that the injury occurred during service, and that they have a current disability linked to the injury. They may also be eligible based on secondary service connection regulations. If you are interested in pursuing benefits based on your injury or medical condition, a veterans disability law firm can work with you to interpret the VA’s TBI rating system and requirements. They can also work with you to collect medical evidence, make a claim, and appeal your case if necessary.