If you do not understand how VA rates or weighs TBI residuals this article will help.
Are Your VA TBI Residuals Related to Service?
Before VA will assign a rating for TBI, it must first determine whether it is related to service. The question is whether VA should award service connection for TBI. Generally, VA will deny service connection for TBI unless the following elements are met:
Proof of a current diagnosis,
Proof of an in-service event, disease or injury,
and
Proof of a medical nexus between the first 2
elements.
Do you have a current TBI diagnosis
If you file a claim for TBI without a confirmed diagnosis, then you should expect VA to deny the claim. It is not enough for the veteran to say they have VA TBI residuals. Before VA will rate TBI, it must confirm that it has been medically diagnosed. For VA purposes, only one of the following specialties can diagnose TBI:
Neurologist,
Neurosurgeon,
Physiatrists, or
Psychiatrist.
Traumatic brain injury (TBI) occurs when a sudden trauma causes damage to the brain. If you had sudden head trauma during service, you may have VA TBI residuals in the following areas:
Cognitive (such as decreased memory, concentration, or attention),
Emotional/behavioral (such as anxiety, crying spells, short temper), or
Physical (such as seizures or balance problems)
If you have any of these symptoms, then you should probably get checked for a TBI. To prove the current diagnosis element, one of the approved specialties must provide the diagnosis.
In-service event, disease or injury
According to the Department of Defense, more than 313,816 service members have sustained a TBI in training or combat. Common causes of this kind of head trauma include blast-related concussion events resulting from training or combat. In fact, TBI is known as a signature injury of the Iraq and Afghanistan wars due to the frequency of IED attacks. However, a simple fall down a 10-foot ladder could also damage the brain.
If you cannot prove that your VA TBI residuals are related to service, then VA may assume that it happened after discharge. For this reason, it is critical that service members document any and all head injuries. Your case is much easier to win if head trauma is clearly documented in your service medical records. In the absence of official records, statements from witnesses would be helpful.
Medical nexus is required to prove VA TBI residuals
Proving the first 2 elements of the claim is not enough. To win a TBI claim, you still need medical evidence linking your current diagnosis to the in-service event. In most cases, a statement from your doctor can provide a medical nexus.
Fortunately, a medical nexus does not have to express 100% certainty. Instead, here is the question: is it at least a 50/50 chance that the TBI was caused by in-service head trauma? If your doctor’s answer is “Yes” and he provides a reasonable explanation, then you have your medical nexus.
Rating VA TBI Residuals
After VA concedes service connection for TBI, it turns to the rating percentage. The rating percentage determines how much money VA must pay to the veteran. The ratings for TBI residuals are covered in the VA Schedule of Ratings.
VA divides the rating criteria for VA TBI residuals into 10 categories. Veterans are then rated based on the level of severity and impairment in each of these areas:
Memory, attention, concentration and executive
functions: Executive functions include goal setting, planning, self-monitoring,
and flexibility in changing actions when they are not productive.
Judgment: Is the veteran able to make reasonable
decisions?
Social interaction: How often does the veteran
act appropriately in social situations?
Orientation: Is the veteran aware of who, where,
and when he is?
Motor functions: Is the veteran able to perform
previously learned motor activities (such as riding a bike)?
Visual spatial orientation: Does the veteran get
lost even in familiar surroundings? Is
he able to point at or name own body parts?
Subjective symptoms: Symptoms that cannot be
measured with objective tests, such as panic attacks and thoughts of suicide.
Neurobehavioral effects: Examples include lack
of motivation, verbal aggression, physical aggression, and lack of empathy.
Ability to communicate: Can the veteran
communicate either by spoken or written language? Can he communicate basic needs?
Consciousness: Is the veteran in a coma or a
vegetative state?
VA rates TBI residuals on a scale of 0, 1, 2, 3, or total. Each increment corresponds to a disability rating:
0 = 0% (normal functioning)
1 = 10% (mild)
2 = 40% (moderate)
3 = 70% (severe)
Total = 100%
If any residuals of TBI are rated “total”, then VA will award a 100% rating. If no residual is rated “total”, then VA must rate based on the highest rated residual. For example, let’s say a veteran has TBI residuals in 3 out of the 10 categories. He has a 1 for Judgment, a 3 for Ability to Communicate, and a 2 for Orientation. In this example, VA will award 70% because 3 is the highest residual rating.
Because memory deficits are common VA TBI residuals, a veteran should always have an advocate. Disability Help Group specializes in TBI cases and is here to answer your questions now.
VA rates TBI residuals on a scale of 0, 1, 2, 3, or total. Each increment corresponds to a disability rating. 0 = 0% (normal functioning); 1 = 10% (mild); 2 = 40% (moderate); 3 = 70% (severe); or Total = 100%.
How does VA review TBI residuals?
VA divides the rating criteria for VA TBI residuals into 10 categories. Veterans are then rated based on the level of severity and impairment. For example, Neurobehavioral effects include lack of motivation, verbal aggression, physical aggression, and lack of empathy.
What medical nexus proves TBI?
To win a TBI claim, you still need medical evidence linking your current diagnosis to the in-service event. In most cases, a statement from your doctor can provide a medical nexus.
Understanding the basics will help you learn how VA Rates TBI. Traumatic brain injury (TBI) occurs when a sudden trauma causes damage to the brain. According to the Department of Defense, more than 313,816 service members have sustained a TBI in training or combat. Common causes of this kind of head trauma include blast-related concussion events resulting from training or combat. In fact, TBI is known as a signature injury of the Iraq and Afghanistan wars due to the frequency of IED attacks. However, a simple fall down a 10-foot ladder could also damage the brain. Any veteran who suffered TBI during service should obtain a VA rating to fairly compensate for this significant injury.
Only Specific Doctors can Diagnose TBI
Because TBI involves damage to the brain, it may affect nearly every other body system. Any symptoms secondary to the initial brain trauma are called residuals. Before VA will rate TBI, it must confirm that it has been medically diagnosed. For VA purposes, only one of the following specialties can diagnose TBI:
Neurologist,
Neurosurgeon,
Physiatrists, or
Psychiatrist.
Ultimately, TBI is a medical question best answered by a doctor. However, a veteran and his family should be on alert if any common TBI residuals present themselves.
Common Residuals – VA Rates TBI
There are 3 main areas of dysfunction that may result from TBI:
Cognitive (such as decreased memory, concentration, attention, and executive functions of the brain)
Emotional/behavioral (such as anxiety, crying spells, panic attacks, short temper), and
Physical (such as motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems).
If you have any of these symptoms after a sudden hit to the head during service, then you should get checked for TBI immediately.
VA Rates TBI
After VA concedes service connection for TBI, it turns to the current TBI residuals. VA divides the rating criteria for TBI residuals into 10 categories. Veterans are then rated based on the level of severity and impairment in each of these areas:
Rating based on level of severity
Memory, attention, concentration and executive functions: Executive functions include goal setting, planning, self-monitoring, and flexibility in changing actions when they are not productive.
Judgment: Is the veteran able to make reasonable decisions?
Social interaction: How often does the veteran act appropriately in social situations?
Orientation: Is the veteran aware of who, where, and when he is?
Motor functions: Is the veteran able to perform previously learned motor activities (such as riding a bike)?
Visual spatial orientation: Does the veteran get lost even in familiar surroundings? Is he able to point at or name own body parts?
Subjective symptoms: Symptoms that cannot be measured with objective tests, such as panic attacks and thoughts of suicide.
Neurobehavioral effects: Examples include lack of motivation, verbal aggression, physical aggression, and lack of empathy.
Ability to communicate: Can the veteran communicate either by spoken or written language? Can he communicate basic needs?
Consciousness: Is the veteran in a coma or a vegetative state?
TBI disability rating
0 = 0% (normal functioning)
1 = 10% (mild)
2 = 40% (moderate)
3 = 70% (severe)
Total = 100%
If any residuals of TBI are rated “total”, then VA will award a 100% rating. If no residual is rated “total”, then VA must rate based on the highest rated residual. For example, let’s say a veteran has TBI residuals in 3 out of the 10 categories. He has a 1 for Judgment, a 3 for Ability to Communicate, and a 2 for Orientation. In this example, VA will award 70% because 3 is the highest residual rating.
Special Monthly Compensation -VA Rates TBI
If you are trying to get the most VA compensation for TBI, then do not stop at the standard rating criteria. Depending on the circumstances, a veteran may be entitled to Special Monthly Compensation for TBI. This would be in addition to any ratings VA assigns under § 4.124a.
How We Won This Case
We represented a 30 year-old combat veteran of the Army. He came to us with a 10% rating for residuals of TBI. After developing the case, we urged VA to rate his TBI residuals at no less than 70%. In addition, we discovered that his mother had been his primary caregiver since his return from military service. Among other duties, the veteran’s mother assisted with medication management, personal hygiene, reminding him of and taking him to appointments, and paying his bill. The local VA hospital had already appointed the mother as his VA caregiver. We argued that the record clearly showed the veteran has a permanent need for regular aid and attendance due to his TBI. In response, VA increased the TBI rating to 70% and granted Special Monthly Compensation at the (r)(2) rate. As a result, the veteran’s monthly payment changed from $264.02 to $8,343.91.
Every C&P exam involves the doctor asking questions of the veteran. The doctor relies on the veteran to explain his symptoms, some of which may not present or observable on the day of the exam. Because memory deficits are common TBI residuals, a veteran should attend C&P exams with a spouse, family member, or friend who knows them well. They can fill in the blanks if the veteran is unable to either remember or communicate certain residuals during the exam.
What is a VA Disability Nexus Letter for PTSD? If you’re reading this, then you are probably familiar with the basics of a VA disability claim. Before we discuss what a medical nexus letter is lets review the basics. To win a VA disability claim, the veteran must prove all required elements of that specific claim. In general, VA will only grant your claim if you prove these 3 elements:
Current diagnosis of a disability,
In-service event, disease or injury, and
Medical nexus between the first 2 elements.
A veteran’s doctor can provide a current diagnosis. Either service records or witness statements can prove the in-service event. The medical nexus requirement is often the most challenging element to prove.
What is a VA Disability Medical Nexus Letter for PTSD?
A good medical nexus letter can be the difference between winning your PTSD claim and losing it. However, it is not enough for a doctor to state that the current diagnosis is related to the in-service event. Unless the letter meets certain requirements, VA will not accept it as evidence. A strong medical nexus letter should:
Be written by a qualified medical professional,
Be based on the veteran’s medical history both
during and after service,
Include an opinion on the likelihood that the
veteran’s disability was caused or aggravated by the in-service event, and
Include an explanation for the opinion that is
easy to understand.
VA Disability Nexus Letter for PTSD: Qualified medical professional
As the term suggests, only a medical professional can provide a medical nexus letter. This means that a veteran should only seek this from someone with the appropriate medical training. In limited circumstances, non-doctors such as physician’s assistants and nurse practitioners can write medical nexus letters. However, keep in mind that VA may get a competing nexus letter from someone more qualified than a nurse practitioner.
In all cases, a veteran should seek the most competent medical professional for this important task. For example, if you need a medical nexus letter for PTSD, then you should probably consult a mental health professional like a psychologist or psychiatrist. A PTSD nexus letter from an orthopedist probably would not help your case. Choose your author wisely, and make sure the letter includes his/her qualifications and contact information.
VA Disability Nexus Letter for PTSD: Medical history provides context
When it comes to what caused a disability, context is everything. If the medical professional doesn’t know the service and post-service medical history, then how can he tell what caused the disability? This requirement helps VA avoid paying veterans for disabilities unrelated to service. Let’s say a veteran is seeking a medical nexus letter for PTSD and PTSD. He tells his doctor that the PTSD must have been related to racial discrimination he suffered in service, and the PTSD followed soon after. However, his medical records show there was no PTSD diagnosis until he was involved in a fatal car accident 12 years after discharge. If the doctor writes a medical nexus letter without this context, then VA would probably reject it outright.
VA Disability Nexus Letter for PTSD: What if the doctor is not 100% sure?
While the burden is on the veteran to prove his claim, the standard of proof is much lower than in criminal or civil cases. A VA disability nexus letter for PTSD does not need to express 100% certainty. It does not even need to be beyond a reasonable doubt. If your doctor finds there is at least a 50/50 chance that your disability is related to service, then that is enough to win. In other words, a good medical nexus letter states that it is “at least as likely as not” that the disability is related to service. Of course, if your doctor believes it is more likely than not, then this only strengthens the nexus letter. The more context a veteran provides, the more certain a doctor can be of the relationship to service.
VA Disability Nexus Letter for PTSD: How did you get to your conclusion?
Most of the value of a medical nexus letter comes from its reasoning. If it only contains data and conclusions, then VA will reject it. A nexus letter that merely lists the evidence reviewed without explaining why it led to the conclusion has no value. At a minimum, the explanation must allow VA to conclude that the doctor applied valid medical analysis to the facts pf the case.
Example of a VA Disability Nexus Letter for PTSD
Let’s say you are seeking a medical nexus letter for PTSD. For the past 5 years, you’ve seen a psychiatrist for regular treatment. After the doctor agrees to help, you give him full access to your military and civilian medical records. During his review, the doctor notes that you had in-service medical treatment for symptoms of PTSD. The doctor also notes that the PTSD was diagnosed less than 2 years after service. After reviewing medical literature, the doctor agrees that “it is at least as likely as not that” your PTSD is related to your military service. His medical nexus letter should explain why the in-service symptoms and the post-service diagnosis matters. It should also cite any medical literature that supports his opinion. This would be a very strong medical nexus letter for PTSD.
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Can I Work and Get TDIU? Many veterans are unable to support themselves because of service-connected disabilities. Congress decided to take care of these veterans with a special benefit called TDIU. Also known as Unemployability, TDIU pays the same monthly amount as a 100% disability rating. Under 2019 rates, VA will pay TDIU recipients a minimum of $3,057.13 per month tax free. The whole point of TDIU is to compensate veterans who cannot maintain a full-time job due to service-connected disabilities. In most cases, VA will only award TDIU if the service-connected disabilities combine to at least 70%.
TDIU v Unemployed
The terms “Unemployability” and “Unemployed” look and sound alike, many veterans assume that cannot work to get TDIU. This is a common misconception.
Amount You Can Earn
VA will grant TDIU to a veteran that works if the employment is considered “marginal.” 38 C.F.R. § 4.16(a). VA considers employment “marginal” if the veteran earns LESS than the federal poverty threshold for one person (in 2018, $12,784 per the U.S. Census Bureau).
Sheltered Work Environment
Regardless of your income, you may still be eligible for TDIU if you work in a sheltered environment. Sheltered work environments include self-employment or a family business. If you are your own boss, you can probably take as much time off as your medical conditions require. Similarly, a family business is probably more accommodating to a veteran’s disabilities than the average workplace. Also, your family or yourself would likely pay at a rate higher than you could earn at another job.
Example: Difficult TDIU Work Case
Take the example of a veteran with a 70% rating for PTSD who works as a Financial Advisor. With the help of his doctors, he is able to manage his PTSD symptoms while earning over $100,000 a year. Because he earns above the poverty threshold despite his PTSD, he is not a good candidate for TDIU.
Example: Good TDIU Work Case
A 60 year-old veteran owns a roofing company. He has an 80% overall rating for PTSD, diabetes, and diabetic neuropathy. He lost his last 2 jobs because his PTSD led to angry confrontations with customers and his bosses. This is why he started the roofing business. His PTSD impairs his ability to maintain relationships with friends, clients, and workers. As his diabetes worsened over the years, he hired more workers to handle the physical labor. Over the past 5 years, he hired and fired over 20 workers. During the same period, another 15 workers resigned because of his offensive outbursts. This veteran is eligible for TDIU because he is employed in a sheltered environment.
Are you entitled to work and get TDIU based on marginal employment? Call the experts at Disability Help Group, 1-800-800-3332. Or, click here to request a free evaluation.
If you would like to read more about the regulation on TDIU, click on this link, 38 C.F.R. § 4.16(a).
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Children or grandchildren of a Vietnam vet exposed to Agent Orange who are disabled could seek help through Social Security benefits in addition to benefits through the Veteran’s Administration (VA).
The VA recognizes some birth defects – like spina bifida – as service-connected, and research has shown that Agent Orange exposure could be related to other conditions as well. This has led to the creation of an organization that focuses on education and assistance to children of vets. Founded by two daughters of Vietnam vets, Children of Vietnam Veterans Health Alliance, Inc., focuses on meeting the needs of those affected by a parent’s exposure during the course of their service.
There are many cases where children of vets have unexplainable illnesses, diseases and other health problems that aren’t family disorders. Some suffer not only physically but emotionally as well. Additionally, there are many who cannot work and are unable to perform daily tasks.
Whatever the source, if someone is suffering from a disabling condition and is unable to engage in substantial gainful activity, he or she may qualify for Social Security disability benefits. The medical condition must also meet Social Security Administration’s (SSA) definition of disability.
It may help to talk with a representative familiar with disability cases. With the help of legal counsel, an individual can learn if veteran’s disability benefits are available, or if Social Security disability benefits may be attainable.
There may be confusion about one’s rights to benefits. Or there could be uncertainty about how to complete the paperwork and the types of supporting documentation that must be gathered. Don’t hesitate to contact the Disability Help Group today.
