LVMAC Tidbit — Very First TBI Kinda, Sorta Presumptive Injury List is in Effect

Effective 16 January, a new regulation affecting those veterans living with Traumatic Brain Injury who also have Parkinson’s disease, certain types of dementia, depression, unprovoked seizures or certain diseases of the hypothalamus and pituitary glands takes effect.

From a recent VA news release, “If certain Veterans with service-connected TBI also have one of the five illnesses, then the second illness will also be considered as service connected for the calculation of VA disability compensation.”  The Institute of Medicine has concluded there is sufficient correlation to link these diseases with moderate or severe Traumatic Brain Injury.  Servicemembers who are within 180 days of discharge may also file a pre-discharge claim for TBI and these secondary conditions.

Others have reported this ruling as establishing five new presumptive conditions.  This is incorrect. The VA does not consider them presumptive conditions as they do for certain diseases related to Agent Orange, for example.  Instead, they are purely recognized secondary service-connected conditions if one already has TBI.  All but one, Parkinson’s, have time limits on their manifestation.  And all require moderate or severe TBI.  However, the decision-making process will be essentially the same unless there is evidence to the contrary.  The decision does not preclude separately filing for one of these conditions as being the caused by service.  That is a decision to made with an accredited service officer.

Here’s what what the final ruling says (It will result in the amending of 38 CFR 3.310, the guiding regulation on this matter):

• …[A]bsent clear evidence to the contrary, five diagnosable illnesses “shall be held to be” secondary results of TBI in certain circumstances. The identified circumstances pertain to the severity of the TBI and the period of time between the TBI and the manifestation of the secondary condition. Specifically, paragraph (d)(1) of the rule provides for secondary service connection of the following illnesses:

(1) Parkinsonism, including Parkinson’s disease, manifested following moderate or severe TBI;
(2) Unprovoked seizures manifested following moderate or severe TBI;
(3) Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following moderate or severe TBI;
(4) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; and
(5) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI. If those conditions are met, the secondary condition will be service connected and considered to be part of the service-connected TBI for purposes of providing VA disability benefits.

• The time periods set forth in this rule are based upon available scientific and medical evidence, as summarized by the IOM, and reflect the finding that, when the secondary condition manifests within such time period, it is reasonable to conclude, without the need for further evidentiary development, that the condition resulted from the TBI. Because no time period is specified for Parkinsonism or unprovoked seizures following moderate or severe TBI, secondary service connection will be established if those conditions are manifest at any time after the TBI.

• [On establishing whether one has TBI itself,] Paragraph (d)(3) of the final rule sets forth the criteria VA will use to determine whether a TBI in service was mild, moderate, or severe. Those criteria are the standard criteria that VA and the Department of Defense (DoD) both currently employ in evaluating the severity of a TBI. The criteria consist of five distinguishing factors, each pertaining to the effects of the injury at the time of the injury or shortly thereafter. The rule provides that a claimant need not meet all the criteria of a particular level of severity in order for VA to classify the TBI at that severity level. Rather, VA will rank the TBI at the highest level in which any criterion is met, except where the qualifying criterion is the same at both levels, in which case, VA would look to the other criterion to determine the highest level assignable.

• [On treating one of the five secondary conditions as a contention on its own,] Paragraph (d)(2) of the rule would state that neither the severity levels nor the time limits set forth in the rule will preclude a finding of service connection for conditions shown by evidence to be proximately due to service-connected TBI. It further explains that, if a claim does not meet requirements of this rule for a mandatory finding of secondary service connection, VA will develop and decide the claim under generally applicable principles of service connection without regard to paragraph (d)(10) of this rule.

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As of 16 January 2014