If you suffered a head injury during service, and you have current residuals of TBI, then you may be eligible for veteran’s disability compensation benefits. But don’t let the VA underrate you. Often the VA does not evaluate the long term effects of TBI properly.
Should you have questions or need assistance at any stage of your TBI VA claim, call us without hesitation. Our experienced legal team can help you get the highest rating possible.
What Is a Traumatic Brain Injury?
The Department of Veterans Affairs defines a TBI as:
“the physical, cognitive and/or behavioral/emotional residual disability from an event of external force causing an injury to the brain.”
Causes can include open head wounds such as penetration by a projectile; closed head injuries caused by blunt impact, falls, crashes; acceleration and deceleration linear forces; rotational forces; and forces generated by blast winds associated with blast injury.
VA recognizes TBI as the “signature injury” of Operation Enduring Freedom in Afghanistan and Operation Iraqi Freedom, owing to the countless U.S. troops who suffered traumatic brain injuries from IEDs and other ordnance. Yet TBI is nothing new for men and women who have ever served in the military and is not always related to combat.
What Are Residual TBI Effects?
TBI residuals are the resulting disabling effects beyond those that follow immediately from the TBI event. VA will assess your injury based on the residual symptoms that you currently have as the result of the trauma.
Notice that the VA does not apply the initial severity of the traumatic event itself when rating the veteran’s disability—only the residual effects of the trauma affect the rating. These residuals may manifest as short or long term physical, cognitive and behavioral disabilities.
Who Is Eligible for a TBI VA Claim?
Eligibility for disability benefits based on service-related TBI involves several steps:
- TBI diagnosis: Your diagnosis may have occurred at the time of injury during active service. If not and there is no diagnosis of TBI as of your application for benefits, VA will require diagnosis by a qualified physician specialist (specifically, a neurologist, neurosurgeon, physiatrist, or psychiatrist.)
- C&P Examination: When you have a TBI diagnosis in accordance with VA policy, VA will ask that you undergo a C&P exam under a certified clinician. A C&P exam may also be completed by the physician specialist who diagnosed you.
How Does VA Diagnose TBI?
VA generally relies on the following evidence to diagnose TBI and evaluate the severity of the traumatic injury:
- Imaging tests (CT, MRI, PET scans)
- Glasgow Coma Scale scores (a scoring system used to assess the level of consciousness in a person following a traumatic head or brain injury, and thus the severity of the initial traumatic event)
- Duration of an altered mental state of consciousness
- Duration of loss of consciousness
- Duration of amnesia
A host of immediate symptoms and symptoms that surface after the injury also help the physician understand the severity of a TBI, including:
- Not thinking clearly, difficulty concentrating, difficulty remembering,
- Paralysis or stroke
- Muscle weakness, fatigue
- Speech problems
- Blurred or impaired vision
- Nausea, dizziness, balance problems
- Losing consciousness
- Decreased coordination, problems with balance and gait
- Sensitivity to light or noise
- Irritability, unusual behavior
- Feeling sad, emotional, inconsolable
- Anxiety or depression
- Sleeping too much, too little sleep, difficulty waking up or falling asleep
Depending on the medical evidence and symptoms, VA will diagnose TBI as mild (mTBI), moderate or severe. Again, this diagnosis of the severity of the initial trauma is not used for rating purposes.
How Does the VA Rate TBI?
To rate a veteran’s traumatic brain injury, the VA follows 38 CFR § 4.124a – Schedule of ratings – neurological conditions and convulsive disorders.
VA first identifies three main areas of dysfunction caused by TBI that profoundly affect a veteran’s ability to function, and each area of dysfunction generally will be evaluated.
- Cognitive impairment (memory, concentration, analytical thinking)
- Emotional/behavioral dysfunction
- Physical dysfunction (balance, gait, hearing, pain, seizures)
Residual TBI symptoms can also include “subjective” symptoms that are harder to prove medically, such as fatigue, sleep problems, or headaches.
Under 38 CFR, VA then evaluates the TBI residuals based on the severity of the following 10 categories:
- Memory, attention, concentration, executive function
- Social interaction
- Motor activity
- Visual spatial orientation
- Subjective symptoms
- Neurobehavioral effects
For each of the above ten criteria, VA assigns a level of severity on a scale of 0 to Total. VA then equates that value to the VA rating schedule for TBI of 0, 10, 40, 70, and 100 percent.
Bear in mind, VA compensation is awarded based on your inability to work. In theory, you may be awarded any of the following VA ratings in light of how the TBI residuals impede your ability to perform in a work environment and complete activities of daily living (ADLs).
- 0% Rating –A “zero” percent denotes that VA recognizes you have sustained service-connected TBI, yet your condition is not (at this time) severe enough for compensation.
- 10% – 100% Rating – After 0%, VA TBI ratings are 10, 40, 70, and 100%.
- Individual Unemployability Rating – If you currently have a rating for TBI that is lower than 100%, but your TBI renders you unable to work, this may be a rating option to pursue.
- Permanent and Total Rating – This rating is awarded to veterans whose disabilities equal a 100% rating and the VA expects no significant improvement in the veteran’s condition during his or her lifetime.
VA Now Recognizes 5 TBI Presumptive Service-Connected Illnesses
In January 2014, the VA released new regulations establishing that, if a veteran has a service-connected TBI along with one of the following five impairments, then that impairment is presumed service connected:
- Parkinson’s disease
- Unprovoked seizures
- Certain dementias
- Diseases of hormone deficiency
“Presumptive” in these cases does not mean you are guaranteed service connection if you have TBI and one of the above illnesses. Presumptive means that if you have a TBI that is considered moderate to severe, and you have one of the above illnesses, that illness is assumed to be related to the TBI. That is unless the VA can demonstrate that the illness is related to something else.
Secondary Service-connection or aggravation with a TBI VA Claim
Secondary service-connected disabilities are those that resulted from a condition that is already service-connected. Many veterans find that an existing disability caused by service-connected TBI has also caused (or aggravated) another underlying health condition, for which you can also be compensated.
For example, you are service-connected for a TBI from a bomb blast. That blast left you with seizures. In turn, you must take medication as part of treatment for the seizures, and that medication has caused severe vision problems. With proper diagnosis and medical evidence showing nexus to the TBI, you can argue for secondary service connection for the new vision impairment.
Many veterans with a TBI also develop PTSD as secondary service connected.
VA Under Scrutiny for TBI Claims Handling
It is difficult to measure a TBI’s total effects on the brain. It is one of the most complex VA disability claims to assess and rate.
VA has revised and updated its criteria for evaluating TBI many times over the past 15 years. Still, VA has continued to be criticized for its failure to adequately evaluate and understand traumatic brain injury in veterans.
In 2018, the VA Office of Inspector General (OIG) found that VA TBI claims had been consistently mismanaged, and veterans were being examined by unqualified examiners, instead of by the approved designated medical specialists.
While the VA has since made improvements to examiner qualifications, record keeping, and TBI medical criteria, major hurdles remain. Plus, VA has always looked at a veteran’s current TBI residual symptoms, without considering the severity of the original TBI event for rating purposes. VA medical evaluations sometimes miss the mark, and VA raters often deny good claims or give unreasonably low ratings.
From a veteran’s standpoint, TBI rating criteria are among the most difficult to understand.
If VA Owes You TBI Disability Benefits, We Are Your Strongest Ally
Traumatic brain injuries often lead to life-changing disabilities for veterans. Our Veterans claim attorneys at Marc Whitehead & Associates are sure of one thing: we want help you obtain the maximum benefits you deserve for your service-related TBI.
There is never any charge or obligation for your initial legal consultation. If your TBI VA claim was denied or rated unfairly, you have the right to appeal. If your Traumatic brain injury is severe, you may also quality for Special Monthly Compensation (SMC).