December 9, 2019
How TBI and PTSD work together with mental health and headaches for your VA Disability claim

How TBI and PTSD work together with mental health and headaches for your VA Disability claim

Because of the United States involvement in
Operation Enduring Freedom and Operation Iraqi Freedom in Afghanistan and Iraq, the US military
has seen drastic increases in members who have suffered TBIs largely due to the tactics
employed by the enemy, guerrilla insurgency with improvised explosive devices and explosively
formed penetrators. My name is Zack Evans, and I work for Woods
& Woods. I’m an attorney that represents veterans against
the VA for compensation benefits. Today, we’re talking about traumatic brain
injury ratings. The VA rates TBI as based on four categories
and those are discussed in 38 CFR 4.124a. The diagnostic code is 8045 for residuals
of traumatic brain injury. The first of these four categories is cognitive
impairment. This includes things like memory, concentration,
attention, executive functions. Executive functions include goal setting,
planning, organizing. This is one of the more difficult categories
to bring forth evidence to prove your TBI severity level and that’s because of the nature
of a traumatic brain injury. It’s a lot different from, say, a knee injury
where we can look at an x-ray and we can see calcifications or bone spurs, or we can see
on an MRI like a torn meniscus. We can observe the loss of range of motion
in a knee injury. Head injuries, especially closed head injuries,
are especially difficult to deal with in terms of objectively analyzing the individual symptoms
that flow from them. The reason for this is that a TBI isn’t really
an individual distinct disability in and of itself. Rather, it’s a cluster of disabilities or
symptoms that flow from a single event, the event being the brain injury. Another of the four categories that are discussed
in 4.124a is emotional and behavioral dysfunction. TBIs are often experiences comorbid with mental
health disorders. Usually the mental health disorder, some level
of severity will flow from the brain injury itself. The VA is instructed that if mental health
is diagnosed in service connected, that you should rate based on the mental health rating
criteria. The truth is that the VA will sweep as many
emotional and mental health symptoms into non-service connected mental health problems
as possible. For this reason, I strongly recommend developing
mental health alongside your traumatic brain injury as well as headaches, and I’ll get
to the headaches specific here in just a moment. But this means you’re going to need a few
different kinds of expert opinions. Likely, you’re going to need a psychiatrist
or psychologist and a medical doctor, preferably a neuropsych if you have access to a neuropsych. These are the types of experts that are qualified
to administer TBI compensation and pension exams on behalf of the VA, and those are the
types of opinions that the VA likes to rely upon. Another area of limitation as described in
the TBI rating schedule is the Physical And Neurological Dysfunction. These are things that can be readily observed. Motor and sensory dysfunction, headaches,
they’re very important. Pain, seizures, gait, coordination, balance
issues, incontinence, reflex problems. 38 CFR 4.124a assigns a point system based
on all of these different categories, so you’ve got 10 facets and this point system as you
rate each facet or category of impairment gives you a raw score and then assigns a rating
based on the most severely rated category. The raw scores are 0, 1, 2, 3 and in certain
symptoms or categories, you have what’s known as a total rating. And total is akin to a 100% or a finding of
incompetence would be a good way to think about that, someone who is consistently disoriented
to one of the four aspects, person, time, place, or situation. The zero raw score relates to a 0% rating,
one to a 10% rating. Two, as your highest aspect score, will get
you a 40% rating. A three will get you a 70% rating, and then
total is a 100% rating. The reason that I wanted to talk about the
ratings and the raw scores in particular is because there’s a VA regulation. There’s a rule that’s really important to
understand when you’re looking at TBI ratings, and that’s the rule against pyramiding. Essentially, it just means that you can’t
get two separate compensable ratings for one disability or manifestation. A really good example of that is headaches. I have an example here, veteran Tom is service
connected for his headaches and traumatic brain injury. His headaches are due to his TBI, and those
headaches are classed as subjective symptoms, so they’re in the subjective category. And there’s a CFR table that speaks to that
under subjective symptoms. And the CFR table allows a max raw score of
two for headaches which corresponds to a 40% rating, but that’s no matter how severe the
headaches are. That’s even if your headaches are characterized
as prostrating attacks which just means they require you to lay down and rest for the headache
to subside. Diagnostic code 8100, under which migraine
headaches are rated, tops out at 50%. Now, the VA is supposed to award the higher
benefit but often sweeps these into TBI ratings and uses it as a no man’s land because TBI
disabilities are so difficult to quantify and evaluate. And they’ll just awarded a zero on migraines
and cite the rule against pyramiding. They’ll say, “Well, we compensated you in
your TBI rating, and you actually received a maximum for that subjective symptom at 40%. But because we can’t pyramid, we can’t compensate
you twice, you’re not going to get the 50 under headaches.” We see that all the time that is inappropriate. Because of the overlap between mental health
ratings, TBIs, and headache ratings, I operate on a TBI rule of three which is that if you
are pursuing traumatic brain injury, you should almost always develop alongside that mental
health and headaches. You should do that in concert, and that is
to hedge your risk from the VA trying to sweep severe symptoms that are … The mental health
and headache ratings, or mental health and headache symptoms as a result of TBI, are
some of the most easily recognizable widespread symptoms that are suffered by TBI patients,
veterans. They’re demonstrable, so you can observe them. You can readily calculate how they affect
somebody’s life. And so they take those and they sweep them
into other categories, other areas, and reduce the amount of your compensable TBI rating. If you have any questions about your traumatic
brain injury claim, or the rating that you’re receiving or should be receiving for a TBI,
give us a call or go online. Visit us at Woods & Woods.

2 thoughts on “How TBI and PTSD work together with mental health and headaches for your VA Disability claim

  1. Can you file a fdc for tbi with a secondary claim of migraines and another secondary claim from the tbi for PTSD? What’s the best way to connect it and get their higher rating the veteran deserves?

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