color: SOME SOLDIER'S MOM: VA to Raise TBI Benefits

Monday, September 29, 2008

VA to Raise TBI Benefits

VA to Raise Traumatic Brain Injury ( TBI) Benefits

The Dept. of Veterans Affairs announced last week changes to its schedule for rating disabilities for Traumatic Brain Injury (TBI), the "signature wound" of Iraq and Afghanistan.

A VA press release noted, "Traumatic brain injuries result in immediate effects such as loss or alteration of consciousness, amnesia and sometimes neurological impairments." In some cases "prolonged or even permanent problems with a wide range of impairment in such areas as physical, mental and emotional/behavioral functioning may occur." People with TBI may experience headache, sleep difficulties, decreased memory and attention, slower thinking, irritability, and depression.

22,000 veterans presently are being compensated for TBI, including 5,800 Iraq and Afghanistan veterans. Those already receiving compensation for TBI injuries can be reevaluated under the new rating schedule criteria. The VA stressed, however, that veterans with the "most severe" forms of TBI would not receive much, if any, extra compensation because the current rating schedule provides adequate compensation in such cases. The rating schedule change mainly has the potential to affect those with mild or relatively moderate TBI who may have been assigned low or modest ratings in the past.

Under the new rules, TBI ratings will be based on the degree of "cognitive impairment" and other "residuals" of TBI. These may include mild to severe loss of memory, attention, concentration, judgment, motor activity, visual spatial orientation, ability to communicate and other functions. The rating schedule goes into effect in late October. Because of the complexity of each individual evaluation, it's not possible to assert that a particular person or particular condition would receive a particular rating increase.

Courtesy of MOAA
and the Veterans Administration

Note: Some news coverage indicates that all veterans presently being compensated for mild/moderate TBI will automatically receive increased compensation (my combat-wounded veteran said, "Mom, the VA doesn't give you anything without you having to ask for it in double triplicate first.") He's right.

According to the Final Rule published in Federal Register* the amendment applies to all applications [for benefits] received by the VA on or after the effective date of the new rule, and the old criteria will apply to applications received prior.

However, a veteran whose residuals of TBI were rated by the VA under a prior version of the rule will be permitted to request a review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether the VA receives any additional evidence.

Note, however, that the effective date of any increase in disability compensation based solely on the new criteria will not be retroactive to the original disability but no earlier than the date of the new criteria (estimated to be late October 2008). Also note that the rate of compensation will not be reduced based solely on the new rating criteria [see pp 1-2]. However, note that in response to many comments on the effective date of the new criteria and suggestions that making veterans apply for a review is burdensome and suggestions that the VA conduct its own reviews for (at least) all post 9/11/01 TBIs, the VA declined to make changes to those provisions and said, "however, consistent with 38 U.S.C. 1155, any review under the new criteria will not result in a reduction in a veteran's disability rating unless the veteran's disability is shown to have improved." [p. 52] So, yes, there is apparently a risk of reduction of disability compensation on some other grounds if you apply for a review.

* pages 1-60 of the document is a discussion of comments and change/no change to the draft rule published back in August; pages 61-71 contain rating criteria, discussion and notes for evaluators.

Finally, I spent a career reading the Federal Register and the United States Code and the Code of Federal Regulations (along with a myriad of states' laws and rules and regulations), and it never ceases to amaze me: 71 pages (OK, double spaced, I'll grant) for a mere AMENDMENT to a diagnostic code. The entire "Unanimous Declaration of the Thirteen United States of America" (also known as the Declaration of Independence) is less than 6 pages (double spaced)... 1,317 words including the title. No wonder people give up trying to get benefits they've earned.
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