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.
