New Rules for Veterans Disability Related to Brain Injury (TBI)

Veterans with brain injuries or related illnesses that resulted from military service will soon have an easier time getting disability compensation.

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Thousands of service members returning home from Iraq and Afghanistan suffer from traumatic brain injury (TBI). So many, in fact, that TBI is called the “signature injury” of these wars. This has been attributed in part to the common use of roadside bombs (IEDs), fire bombs, and other explosives by insurgents.

Traumatic brain injury is characterized by both physical and psychological impairments, and oftentimes, veterans suffer from residual effects of TBI. In those cases, the VA may not recognize those residual symptoms as being caused by traumatic brain injury, and this creates a limitation on the benefits a veteran can receive.

A New Regulation for Brain Injuries

Because the Department of Veterans Affairs (VA) has been criticized for underestimating the effects of TBI and not awarding benefits to many veterans suffering from TBI, the VA has proposed a revised regulation, 38 CFR 3.310, to help more veterans with TBI to qualify for benefits.

The proposed rule recognizes five illnesses as being caused or worsened by TBI. A veteran who can establish service-connection for traumatic brain injury (that is, that the TBI resulted from military service) may be able to get an increase in benefits based on these illnesses once the new rule is finalized.

Illnesses That Will be Presumed Service-Connected to TBI

After the proposed rule becomes final, the following diseases will be presumed to be service-connected:

  • Parkinson’s disease that is diagnosed following moderate or severe TBI
  • seizures for which no cause has been established following moderate or severe TBI
  • certain dementias if diagnosed within 15 years after moderate or severe TBI
  • depression that is diagnosed either:

     

    • within three years of moderate or severe TBI, or
    • within one year of mild TBI
  • hormone deficiency diseases that are diagnosed within 12 months of a diagnosis of moderate to severe TBI.

How Will the VA Rate the Severity of a TBI?

The VA will use the following evidence to rate TBI as mild, moderate, or severe:

  • MRI, PET, or other scans
  • length of an altered mental state or altered state of consciousness
  • length of loss of consciousness
  • length of amnesia, and
  • score on the Glasgow Coma Scale (a test used after head injuries).

The level of TBI severity will be determined as of the time the injury occurred, not on the basis of current symptoms. If inadequate medical evidence is available, the veteran may not be entitled to a presumed service-connection under this section. 

The Benefit of Presumed Service Connection

When the VA presumes that a condition is service-connected, this means the veteran does not have to prove that the illness or injury was caused while they were in service. Medical evidence won’t be needed because the VA decides that the mere existence of the disease or medical condition is enough to establish service connection. This is much easier than having to submit evidence to prove the disability was caused during service.

However, even if the illness or injury doesn’t entitle the veteran to presumed secondary service connection under the proposed rule, an application for benefits can still be made under other service connection rules. See this article on the various ways to establish service connection to get benefits.

Gulf War Registry Exam

Veterans who would like to be evaluated for TBI, brain injuries, and illnesses resulting from TBI may be eligible for a Gulf War Registry Exam. This is a free exam that does not require enrollment in the VA health care system. Veterans are eligible for this exam if they served during 1990-1991 in Operation Desert Storm, Operation Iraqi Freedom, Operation New Dawn, Operation Desert Shield, or the Gulf War. To ask for the Gulf War Registry Exam, call the Environmental Health Coordinator at your local VA medical center or clinic.

When Will the New Rule Become Final

The VA has not yet indicated with this new rule will become law.

How to Apply for Veterans Disability Benefits

Use VA Form 21-526, the Veteran’s Application for Compensation and/or Pension, to apply for disability benefits. You can find this form on the VA website or fill it out online. See this article on how to apply for veterans benefits for more information.

Further Information

For more information on TBI and resulting illnesses, see the Defense and Veterans Brain Injury Center at www.dvbic.org/. If you have denied disability benefits for lack of a service connection, or you are eventually denied benefits for an injury connected to a TBI, talk to a disability lawyer. Look in Nolo's Lawyer Directory for a disability attorney in your area.

You can also get Social Security disabillity benefits for TBIs with lasting consequences. For more information, see Nolo's article on getting Social Security disability for a TBI.

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