New Rule Easing Burden of Proof for Veterans with TBI Not as Simple as it Appears

Under a new Department of Veterans Affairs Rule published December 17, 2013, after January 17, 2014, the VA will presume that five diseases are secondary to service connected Traumatic Brain Injury (TBI). Those presumed disabilities are:

  • Parkinson’s disease
  • Certain kinds of dementia
  • Depression
  • Unprovoked seizures
  • Certain diseases of the hypothalamus and pituitary glands

This means that veterans with TBI who receive disability compensation for TBI can file a claim for compensation for Parkinson’s disease (for example), and the VA should service connect the Parkinson’s disease in the absence of clear and unmistakable evidence to the contrary.

But, there is a catch. The VA press release stated, “Eligibility for expanded benefits will depend upon the severity of the TBI and the time between the injury causing the TBI and the onset of the second illness.” So, the presumption for service connection rests upon the date of the TBI and the onset date of the five diseases. Dementias must manifest within 15 years following moderate or severe TBI. Depression must manifest within 3 years of moderate or severe TBI or within 12 months of mild TBI. Hormone deficiency that results from hypothalamo-pituitary changes must manifest within 12 months of moderate or severe TBI. The rule includes a table that describes the symptoms for mild, moderate and severe TBI. This table was the topic of discussion in some of the comments submitted to the VA before the rule was finalized.

VA Relied on Institute of Medicine Report to Create Guidelines for TBI-Related Diseases

Other comments were submitted which spurred the detailed explanations published in the December 17, 2013 Federal Register. In most of the explanations, the VA relied on a report from the Institute of Medicine. For example, at least two commentators suggested that the rule should include mild TBI (MTBI) for all of the diseases. The argument was made that MTBI can swell the connections between the neurons in the brain and the swelling, in turn, can cause Alzheimer’s type of dementia. The VA relied upon the institute of medicine report to dismiss this concern.

Another discussion worth reading was sparked by a comment that using a schedule to determine the severity of the TBI substitutes a medical professional’s opinion with a rating officer’s opinion. The case cited for this criticism was Colvin v. Derwinski. It is a thoughtful comment and it prompted the VA to respond by saying:

Nothing in the proposed rule would prohibit a VA adjudicator from obtaining a medical opinion if he or she requires more precise medical information to properly determine in which of the three severity levels the veteran’s TBI belongs. In fact, under VA’s duty to assist, VA is required to obtain a medical examination when “such an examination or opinion is necessary to make a decision on the claim.”

What Does This Mean for Veterans with TBI Seeking VA Benefits?

Such debates are useful to create a record upon which to argue legal points when a veteran files an appeal based on the interpretation of a rule. Thus, these discussions are worth reading, and the quotation above may be used in an argument that medical opinion will be necessary for many veterans whose cases include a complex record that is difficult to reconcile. Learning how to use the commentary and history surrounding the VA’s rules is important for veterans advocates. At Veterans Help Group we understand this and know how to use these materials. And we are here to help. Please contact us for a free case evaluation if you are seeking veterans disability compensation benefits and need assistance.

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