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 rules to 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 evidence of a causal relationship" for the proposed conditions of Parkinsonism; dementias; depression; and diseases of hormone deficiency that may result from hypothalamo-pituitary changes and unprovoked seizures. The VA press release is here and the publication of the rule for comments and approval may be found here VA Secretary Shinseki has successfully introduced new service connected benefits in the past. Many Vietnam veterans have seen increases in their benefits and care for conditions associated with agent orange. If agent orange exposure and the subsequent devastating illnesses that came of it are the signature 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 many years the exposure to agent orange was seen as harmless, then only annoying and finally, some 20 to 40 years 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 those conditions that may not be immediately apparent or that take time to develop, we're also cautious in granting immediate applause for these proposed new benefits. We question whether these rules are thorough enough and whether they are written to the fullest degree so that veterans will receive all the care 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 physician who 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 VA’s proposed TBI regulations. The following observations 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 medical condition has on a veteran’s ability to work and function. In other words, just because VA grants service 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 especially relevant for veterans seeking service-connected compensation for TBI because, even with VA recognizing these five other diagnosed conditions as related to TBI, it may not result in any additional compensation for the veteran. For example, when a veteran is service connected for both depression and PTSD, VA will assign disability ratings based on the symptoms of each condition. When the symptoms overlap or cannot be separated 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 rated under one or the other conditions for that particular symptom. Similarly, if a veteran is service connected 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. VA’s proposed regulations also note that “behavioral, social, and occupational effects of TBI and related service-connected conditions may be considered in evaluating the severity of those conditions for 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 same symptom 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 to do this as service medical records contemporary to combat are notoriously vague, even when they exist. 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 opposed to “mild”), service records documenting the severity of the symptoms at the time of injury are key to a veteran obtaining service connection and compensation. Thus, I strongly advise all active duty service members to keep a copy of their service treatment records, and to seek medical care within that first year post-discharge. Documented medical care is key to increasing the chances of a successful VA claim. 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 the addition 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, these will be additional conditions for VA raters to consider when developing and rating a veteran’s serviceconnection claim going forward. I do see how VA medical facilities and VA Compensation and Pension (C&P) examiners will be challenged with veterans seeking service-connection for TBI-related conditions. Similar to VA’s shortfall 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 and related conditions. And, since VA proposes to use structural imaging such as MRI’s and PET scans to rate TBI conditions, the need for these machines (and radiologists to interpret the images) will only compound 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 to veterans 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 medical conditions under existing ratings. On the positive side, I can see where the proposed regulations will be beneficial because VA will ultimately have to improve the breadth and depth of medical care provided to veterans with TBI-related conditions. However, because VA compensates a veteran for a medical condition’s disabling symptoms and not for the number of service-connected conditions, these proposed regulations may not change the amount of many veteran’s monthly compensation. Katrina Eagle, Esq. Veterans Law Attorney

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 ischemic heart 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 rule goes 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 since the diagnosis is made, according to the rule, in the immediate post injury period. In the war theatre, I would 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 to his/her duties. However, the injured warrior may have little or NO recollection of what they are doing in 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 be made in the immediate post injury period in this very specific population. Similar to athletes who PLAY through the “Concussion” our warriors will most likely continue with the process at hand, and not 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'm knocked unconscious for 30 seconds in a war, I'm seriously injured as far as I'm concerned. We understand 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, especially following my own TBI, I feel it is imperative to include all levels of brain injury in the group with “suspected” secondary illnesses.

How will this affect others who didn't suffer blast injury? I'm advocating for a young paratrooper who has 2 "jump & bump" events in his record. For the uninitiated, an airborne ranger suffers a jump & bump when he leaves his perfectly good airplane and lands on his head, knocking himself unconscious. Although the “signature wound” of the Iraq and Afghanistan wars are those of the IED blast related TBI, your assumptions are correct that others suffer from TBI as well. Young paratroopers; drivers who experience HumVee roll over incidents without IED blast; those exposed to mortar or RPG shelling should also be included in the TBI suspect group. This is the first war that the techniques of Diffusion Tensor Imagining, Functional MRI, and PET scans have been available. If you watch old WWII footage of soldiers with “shell shock” you will note the Parkinson-like tremors, clearly indicating that the soldier has sustained a brain injury, not a “mind” injury. My veteran is now suffering headaches, significant neck pain, sleep disturbances and so on. What will this do for him? Given the current rule, I am not sure what this will do for the Veteran who has NOT been diagnosed at the time of injury, as it states according to the rule. I would, as a physician, assume that all my patients with a history of being in a war/combat zone and having the symptoms described above, would benefit from the complete TBI work up including specialized neuroimagining, endocrine testing, and neuropsych testing for cognitive deficits. In addition, cognitive retraining, and physical/occupational/speech therapy should be available to all who have those symptoms and signs. PTSD & TBI are becoming the signature conditions of this era, much like agent orange is for the RVN era. Are PTSD & TBI interconnected? Traumatic Brain Injury has been a sequella to every war – it is just that in the past, fewer warriors survived to tell about it. Even in reading the post war journals of some Civil War Veterans, the depression, headaches, and symptoms commonly associated with TBI are noticeable in their writings. We just have not looked for it before these wars. MRI/CT windows to the brain were developed after the Vietnam Era, and hence the term, PTSD – Post Traumatic Stress Disorder. What I tell our warriors now is that they are out of their brains, not out of their minds. In fact, several TBI specialists have suggested that PTS (post traumatic stress) is actually a subset injury of a TBI. Jeffrey J. Bazarian, MD, PhD, published his report in the summer of 2012 showing that PTSD was linked to head injuries suffered in combat. Still, other clinicians believe that PTS may be linked to a chemical imbalance of the fight or flight hormones making it more likely for the Veteran to keep remembering the same events while the ability to put down new memory is suppressed. How about the impact on the budget and what this means to caregiver families? The budget impact, I believe, will be significant and with the proposed cuts in Defense and Veterans Administration spending, the significance will be far reaching and negatively impact the current VA system. HOWEVER, I firmly believe that it is time for the tertiary hospitals, the teaching hospitals, and the community health care providers to work with the Veterans Administration to identify, diagnose and treat the returning 450,000 Veterans of Iraq and Afghanistan suspected of having mild TBI. This is the group that needs to be included in the new rule although their immediate effect will place a strain on the budget. They are the majority of the war casualties, and the patients most likely to respond to treatment. Certainly, they far surpass the numbers of moderate and severe TBI which number approximately 1/10th that amount or about 45,000. We have been unable, in the past, to accurately

diagnose mild TBI. Now, with the assistance of newer neuroimaging techniques, we can take a good history; perform neuropsych testing, and have our suspicions of brain injury confirmed anatomically. As we know, the routine CT/MRI are nearly always normal for an individual who has been classified as a “mild” TBI. The amount of funding required to make the proper diagnosis should be shared by the civilian world. After all, it is a society issue due to the co-morbidities of mild TBI which include substance abuse (alcohol, drugs); unemployment; homelessness; incarcerations; and a continuing destabilizing pattern of destruction that may lead to suicide and that will cost, in the end, much more than the projected treatment plan of 1-2 years of cognitive retraining, appropriate therapies, and counseling. It is projected that a year of cognitive retraining and treatment for a Veteran with mild TBI may cost about $25,000.00. However, at the end of that period, you have given the Veteran hope and hopefully, security through education or employment. Compare that to even one year of incarceration which is also, $25,000.00. Can VA prepare for more claims as suggested by Paul? I do not see how the Veterans Administration Hospitals can even be expected to prepare for the new claims suggested. It is why, after serving briefly in a VA outpatient facility performing second level TBI screenings, that I decided to dedicate the remainder of my career to advocating collaborations between the VA and civilian health care facilities. It only makes sense. In the 1930’s, when the VA was founded, there was not much difference between the type of medicine practiced at the VA and at the tertiary centers. Think about it: The only antibiotic of note at that time was sulfa, with Penicillin on the horizon, and most treatments were of the physical medicine variety – Ice, Heat, Compression, Elevation. Now we have super bugs with new antibiotics being discovered almost monthly and newer and more expensive neuro-imaging techniques found at tertiary centers, but not generally found in the rural health care systems where so many of our allvoluntary military arise. The expense of this equipment; the level of training and expertise required, should be shared among our Veteran population. We need to collaborate for the health of our returning Veterans and for the sake of their caregivers, who are generally family members who have also served our country. Telemedicine techniques for TBI rehab, should become a widespread reality in 2013, with our TBI patients and caregivers dialing in for treatment and advice on face time or skype. It truly would assist with the treatment of the co-morbidities, and, in the very near future, be cost efficient and healing. This is the technology age, and our returning Veterans are skilled with electronic communication, so why not use it for healing? How do we prove that the illness of 20 years from today was initiated by the TBI of 2010? There are studies being performed by some of our nation’s leading neuroradiologists, such as Dr. Michael Lipton, MD,PhD, from Albert Einstein University, and these physicians will be performing longitudinal studies on the returning Veterans to show possible progression similar to the studies being performed within the NFL today. This Brain Tracking is most important to define the natural progression of these types of injuries. Brain Tracking is alos one of the major research areas, that Patrick Kennedy and retired General Peter Chiarelli are looking into with their organization: What happens to those who aren't well documented with TBI today when they suffer an early onset of dementia? As noted, there will be ongoing studies making this correlation easier in the future. Journaling by the patient and caregiver is very important documentation about the progression of brain injury; with recovery and with relapse. If a veteran suspects he/she has had even a mild TBI, what should the veteran do from a legal and

medical perspective to prepare for the future? I encourage every Veteran who served in Iraq or Afghanistan, to apply for your VA benefits and be tested for Traumatic Brain Injury, if you experience any of the symptoms forementioned. If you are not diagnosed on the first several encounters, and you continue to note any of the hallmarks for TBI – Headache, Dizziness, “Ringing in your ears (tinnitus); difficulty with light (photophobia), memory loss, difficulties putting down new memory; avoidance of crowds, difficulties processing information; slowed reaction times, sleep deprivation, or difficulties controlling your temper or other emotions, then I suggest you contact your state’s brain injury association for further assistance. The Resurrecting Lives Foundation,, is also available as are several other non-profit organizations such as or other counseling services available in your areas. One VERY IMPORTANT resource for our returning Veterans are the football trainers at their high schools, most of whom are now well trained on the recognition and early testing of TBI through the use of the high school and NCAA testing programs for TBI. KEEP a JOURNAL – always, of your symptoms and situations that you are finding difficult. It will help to establish the diagnosis and plan the treatment. MOST IMPORTANTLY – I advise all our returning 450,000 Veterans who struggle with TBI, along with their families, to SPEAK OUT and REACH OUT instead of acting out. There are physicians, health care providers, athletic trainers, counselors, educators and employers who understand your situation and we are here to help. THANK you for your service to our country, and now we are here to assist you in continuing that service – Please remember – you are out of your brain –not out of your mind, and there is HOPE and HELP at the touch of your MOUSE! Chrisanne Gordon, MD. Chairwoman, Resurrecting Lives Foundation 614-638-1175 Board Certified, Physical Medicine and Rehabilitation.