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Traumatic Brain Injury (TBI) and the Potential of the New Service-Connection Rules

Traumatic Brain Injury (TBI) and the Potential of the New Service-Connection Rules

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Traumatic Brain Injury (TBI) and the Potential of the New Service-Connection Rules
Traumatic Brain Injury (TBI) and the Potential of the New Service-Connection Rules

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Published by: Jim on Jan 27, 2013
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07/13/2014

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Traumatic Brain Injury (TBI) and the Potential of the New Service-Connection Rules
Just over a month ago, the VA published a news release telling us that the Secretary is proposing rulesto add five diagnosable illnesses which are secondary to service-connected Traumatic Brain Injury(TBI). The Secretary is using an Institute of Medicine (IOM) report that concludes "sufficient evidenceof a causal relationship" for the proposed conditions of Parkinsonism; dementias; depression; anddiseases of hormone deficiency that may result from hypothalamo-pituitary changes and unprovokedseizures.The VA press release is here http://tinyurl.com/amo3fg3 and the publication of the rule for commentsand approval may be found here http://tinyurl.com/cqaovg6VA Secretary Shinseki has successfully introduced new service connected benefits in the past. ManyVietnam veterans have seen increases in their benefits and care for conditions associated with agentorange. If agent orange exposure and the subsequent devastating illnesses that came of it are thesignature medical condition of that war, traumatic brain injury (TBI) is well recognized as the most prevalent injury of our last decade of war.The benefits that the Vietnam veteran may enjoy today are seen by most as too little, too late. For manyyears the exposure to agent orange was seen as harmless, then only annoying and finally, some 20 to 40years after the fact, there has been recognition that tens of thousands of American soldiers and their families were seriously harmed by the soldier's exposure to herbicides.While we welcome any advance that recognizes the harmful effects of war, particularly thoseconditions that may not be immediately apparent or that take time to develop, we're also cautious ingranting immediate applause for these proposed new benefits. We question whether these rules arethorough enough and whether they are written to the fullest degree so that veterans will receive all thecare and benefits that they deserve in the near and distant future.We asked two nationally recognized experts for their opinions. Dr. Chrisanne Gordon is a physicianwho has been caring for veterans since the beginning of the war. Attorney Katrina Eagle is one of America's fiercest advocates for all veterans.
The responses of Katrina Eagle, Esq.
Jim:Thank you for the opportunity to comment on VAs proposed TBI regulations. The followingobservations are from an advocate’s perspective and are based on assisting veterans in the aftermath of other VA proposed regulations:1. Veterans need to keep in mind that VA assigns disability ratings based on the impact that medicalcondition has on a veteran’s ability to work and function. In other words, just because VA grantsservice connection for a medical condition does not automatically mean the veteran will be
 
compensated for the medical condition. VA compensates the manifestations and, or symptoms of disabilities, not for each diagnosed condition that is related to military service. This is especiallyrelevant for veterans seeking service-connected compensation for TBI because, even with VArecognizing these five other diagnosed conditions as related to TBI, it may not result in any additionalcompensation for the veteran.For example, when a veteran is service connected for both depression and PTSD, VA will assigndisability ratings based on the symptoms of each condition. When the symptoms overlap or cannot beseparated out, VA will assign one rating that is applicable for both conditions. So, if a veteran reports“lethargy” or “no energy” and suffers from both depression and PTSD, he or she will still only be ratedunder one or the other conditions for that particular symptom. Similarly, if a veteran is serviceconnected for both TBI and post-traumatic dementia, and “memory loss” is a reported symptom for  both, VA will still rate and compensate the disabling effect of memory loss only once.VAs proposed regulations also note that “behavioral, social, and occupational effects of TBI andrelated service-connected conditions may be considered in evaluating the severity of those conditionsfor compensation purposes.” But, if these effects have already been accounted for in rating another service-connected condition (e.g., PTSD), then VA will not compensation a veteran again for the samesymptom because the rule against “pyramiding” prohibits this.2. VA announced that the severity of a veteran’s TBI will be based on the symptoms at the time of injury or shortly thereafter, not the current level of functioning. I am skeptical as to how VA plans todo this as service medical records contemporary to combat are notoriously vague, even when theyexist. Given that the U.S. Army recently admitted to widespread missing, lost, or purged records for veterans who served in Iraq or Afghanistan, this is going to be even more difficult, if possible at all.Also, since 4 out of the 5 proposed medical conditions hinge on “moderate to severe” TBI (as opposedto “mild”), service records documenting the severity of the symptoms at the time of injury are key to aveteran obtaining service connection and compensation. Thus, I strongly advise all active duty servicemembers to keep a copy of their service treatment records, and to seek medical care within that firstyear post-discharge. Documented medical care is key to increasing the chances of a successful VAclaim.3. I do not believe that adding these proposed medical conditions will cause additional backlog or delays for VA, and certainly not on the scale that we saw when Secretary Shinseki announced theaddition of three medical conditions to VA’s list of conditions presumed related to herbicide exposure.This proposal does not require VA to re-review any veteran’s claims or other VA files. Instead, thesewill be additional conditions for VA raters to consider when developing and rating a veteran’s service-connection claim going forward.I do see how VA medical facilities and VA Compensation and Pension (C&P) examiners will bechallenged with veterans seeking service-connection for TBI-related conditions. Similar to VAsshortfall of doctors qualified to diagnose and treat veterans with PTSD, I suspect VA will not be able to provide enough qualified doctors to accommodate veterans who finally seek care for their TBI andrelated conditions. And, since VA proposes to use structural imaging such as MRI’s and PET scans torate TBI conditions, the need for these machines (and radiologists to interpret the images) will onlycompound the delays. Thus, delays are inevitable, the only question is how long those delays will be.In sum, I do not believe that these regulatory changes will provide noticeably additional benefits toveterans hoping to increase their total VA compensation. (Remember how everyone believed VA’s
 
revised PTSD regulations would result in huge amounts of granted claims and awarded benefits?Instead, VA granted service-connected for PTSD but then “low-balled” the assigned rating as zero or 10-percent disabling.) In the TBI case, VA can even more easily fold the TBI-caused medicalconditions under existing ratings.On the positive side, I can see where the proposed regulations will be beneficial because VA willultimately have to improve the breadth and depth of medical care provided to veterans with TBI-relatedconditions. However, because VA compensates a veteran for a medical condition’s disabling symptomsand not for the number of service-connected conditions, these proposed regulations may not change theamount of many veteran’s monthly compensation.Katrina Eagle, Esq.Veterans Law Attorneyhttp://www.eagleveteranslaw.com/
The responses of Chrisanne Gordon, M.D.
Jim;Thanks for allowing my participation to discuss this important topic. The following will be from the perspective of a health care provider.Does the inclusion of the 5 new conditions go far enough? (For example, when the addition of ischemicheart disease was added as a presumptive condition, the new rule specifically excluded other vascular disease. That doesn't make sense to anyone who understands the etiology of arterial vascular disease.Are there similar holes in this one?) As a rehabilitation physician, I do not believe that the new rulegoes far enough, though I applaud the efforts. I remain hopeful that these new conditions will,rightfully be addressed with military personnel who have suffered mild TBI as well, especially sincethe diagnosis is made, according to the rule, in the immediate post injury period. In the war theatre, Iwould imagine that it would be more difficult to make this diagnosis of mild TBI since the adrenalin of the life/death situation often “kicks in” and the injured warrior appears to be functioning according tohis/her duties. However, the injured warrior may have little or NO recollection of what they are doingin the moments/minutes/hours following a traumatic brain injury.Add with the stigma associated with TBI or PTS, it becomes even less likely for the diagnosis to bemade in the immediate post injury period in this very specific population. Similar to athletes whoPLAY through the “Concussion” our warriors will most likely continue with the process at hand, andnot realize their injuries until days, months, or even a year or more later. It is the warrior personality;on the battlefield and the playing field.Is the definition of moderate - loss of consciousness for more than 30 minutes - reasonable? If I'mknocked unconscious for 30 seconds in a war, I'm seriously injured as far as I'm concerned. Weunderstand now that no loss of consciousness is necessary for a traumatic brain injury to have occurred,therefore, those who have symptoms related to TBI: memory loss, slowed reaction times, headaches, processing difficulties, should definitely be included in the group of Veterans who will be at high risk for any of the 5 related conditions. As a rehab physician with a special interest in TBI, especiallyfollowing my own TBI, I feel it is imperative to include all levels of brain injury in the group with“suspected” secondary illnesses.

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