As we posted in a blog last year, the VA disability attorneys at Perkins Studdard have been tracking changes to VA rules making it easier to service-connect certain illnesses in veterans with traumatic brain injuries (“TBIs”). We are pleased that these rules, found in 38 C.F.R. § 3.310, are now in effect as of January 16, 2014. If you suffered a TBI in service and now have one of the five covered illness, VA presumes that the secondary illness is related to the TBI. That means no evidence is required to prove a nexus between the secondary illness and your military service. This rule change does not mean a veteran suffering from one of these five illnesses will be presumed to have suffered a traumatic brain injury; the in service TBI must still be proven with evidence.
Illnesses covered by the Traumatic Brain Injury rule change
The five illnesses covered by the rule change are:
- unprovoked seizures,
- dementia (which the VA understands to include presenile dementia of the Alzheimer type and post-traumatic dementia),
- symptoms of Parkinson’s disease,
- hormone deficiencies caused by changes in the hypothalamus and pituitary glands, and
- depression.
Why was the rule change made?
The Department of Veterans Affairs enacted this rule in response to a report by the National Academy of Sciences, Institute of Medicine (IOM), “Gulf War and Health, Volume 7: Long-Term Consequences of TBI” that found sufficient medical evidence of links between these five illnesses and TBIs like those suffered by veterans in Iraq and Afghanistan.
What does the Traumatic Brain Injury Secondary Illness Presumption mean?
To qualify for the presumption, a veteran must still prove the TBI and must prove the secondary illness is one of the five on the list above. Upon doing that, the VA must automatically consider the illness to be related to the TBI without further medical evidence to establish service-connection. That means less paperwork and review, which should result in faster processing times for these claims.
Whether the presumption is to be applied depends in part upon the severity of the TBI (mild, moderate, or severe as defined by DoD guidelines) and the amount of time between the TBI and the onset of the secondary illness. The criteria are different for each of the five secondary illnesses. Even if the criteria for establishing the presumption are not met, it is important to note that veterans can still establish direct service connection as they could in any other claim.
Questions about Traumatic Brain Injury
Many veterans should benefit from this proposed new VA policy. TBI is called the “signature wound” of Operation Enduring Freedom and Operation Iraqi Freed (OEF/OIF) because of the widespread use of improvised explosive devices (IEDs) among insurgents. Over 250,000 service members suffered a TBI from 2000 to 2012, although health experts believe this number to be much higher in reality. If you have questions about veterans benefits or would like a free consultation with one of our attorneys that handles veterans disability claims, simply complete the “Need Help” form or call the phone number on the right side of this page.
