Proposed Traumatic Brain Injury Rule Change Could Benefit Veterans

Good news! In December 2012, the Department of Veterans Affairs announced a proposed rule change that should make it easier and quicker for veterans suffering from certain effects of traumatic brain injuries (“TBI”) to get benefits payouts and access to medical treatment.  Although the new rule is not in effect yet, we are expecting the VA to make an announcement in the near future on the rule’s finalization.

What does the proposed rule do?

This new rule would add a new subsection to 38 C.F.R. § 3.310, the federal regulation dealing with traumatic brain injuries.  This new subsection would create a presumption that five illnesses are the result of traumatic brain injuries (TBIs).  As a result, these illnesses would be presumed to be service-connected if the TBI was service-connected. For the complete wording of the proposal, click here. The five illnesses covered by the proposed 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
  • Depression

A veteran must still prove the traumatic brain injury is service-connected.  The veteran must also prove the secondary illness is one of the five on the list above to qualify for the presumption.  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.  This 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.

Why did VA propose this new rule?

This decision by the VA was prompted by 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.

Many veterans stand to benefit from this proposed new VA policy.  Traumatic brain injury 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.

This change in 38 C.F.R. § 3.310 is good news to veterans suffering from the effects of TBI, but it remains to be seen what this will mean overall to the VA’s claims review process.  It may create an influx of new claims and add to the backlog that already exists.

Our firm has been monitoring these developments on the VA’s handling of claims related to TBI and secondary illnesses.  Although this presumption is intended to streamline the process, the proposed regulation appears to have enough gray area that may result in many claims being denied in error.  If you have any questions in how this proposed new regulation may affects you or a veteran you know, please contact us for a free consultation by filling out the “Need Help” form at the right or by dialing the phone number at the upper right of this page.

UPDATE

VA adopted a rule on TBIs and secondary illnesses.  Read more about it in this article.

Travis Studdard is an attorney who focuses on representing veterans in VA disability compensation claims.  He regularly writes about issues that are important to veterans and their families.

You can subscribe to his Veterans Disability channel on YouTube.

It has been a pleasure working with Jason and firm, very knowledgeable and professional, He did awesome job to get settlement that I need for my workmen comp case which was fair in my case, cause the insurance company was trying low ball me and not give me nothing but Jason fix that ….I truly recommend Perkins&studdard any workmen comp case that you have and also want thank Tina also for helping me along this process Thank you Perkins&studdardjahbari swint
Thank you Jason and Tina for everything you've done. Much appreciated. Great law firm! Great results!! Thank you!!! (Austin and Valerie)Valerie Mellinger
Travis and the team working on my VA claim are awesome. I’m happy with their integrity and diligence on working on my claim.Chris “Greybeard” Mullennix
I can't express enough how great it was to work with Perkins Studdard. They are extremely knowledgeable, professional and keep you aware of everything happening with your case. Very friendly from the front office to Mr. Perkins. I would HIGHLY recommend Perkins Studdard!James Strickland
I recommend Travis for an Veteran that has been dealing with constant denial with claims. He also , cover cost for my nexus letter when I ran into financial troubles , that helped me win my case.edwin Cook
I highly recommend Travis Studdard to represent anyone looking to help with VA claims. The VA is very difficult to deal with when attempting to get benefits from service connected injuries, at least that's my experience. Travis and his team knows the VA system and the legal procedures to help you get what you deserve. Travis was kind and passionate with me throughout this process and therefore, I highly recommend this law firm to represent DAV's.Terry Hembree
Such an awesome team. They spoke to me like a person and helped me through every decision with knowledge.Kevin Collett
Highly recommend this firm. Did exactly what they said they were going to and fairly timely. The VA is sometimes extremely difficult to navigate but this took all the leg work away from me and got me the result I thought was fair.Andrew Boone
Amazing staff, very informed along with excellent communication. Within just a few weeks of work, Mr Studdard was able to make things happen that normally take years! Highly recommendJacob Sylvester
Perkins Studdard LLC is the place you need to be if you have a Workers Comp case going on! Mr. Jason Perkins and his staff get the results that you need. They work with you and fight for you.Coming from another lawyer my husband and I were really surprised and appreciated the communication and honesty and understanding throughout the entire process. My husband loves the videos because they held so much information and helped him understand what what was going on. Thank you so much for representing us!!!Deborah Tompkins

Related Posts

Contrast:

Font Size: