Traumatic Brain Injury (TBI) and VA Disability Claims

If you have encountered any of these hurdles, Berry Law Firm can help you. We are veterans who assist veterans with seeking the disability benefits they have earned. Our firm’s founder, John S. Berry Sr., served in Vietnam, while John S. Berry Jr. served in Iraq and Bosnia. We realize the TBI risks that military men and women face. We also understand the important role that disability benefits play in the recovery from TBI.

We can review your case and guide you through the VA appeals process. Our firm handles appeals before VA Regional Offices, the Board of Veterans’ Appeals and the U.S. Court of Appeals for Veterans Claims. We have a record of delivering positive results for veterans.

Schedule a consultation with our knowledgeable team today.

What Is Traumatic Brain Injury?

A person with TBI may not appear to be sick or in pain. This is why the medical community often calls TBI an “invisible injury.” Despite the lack of outward signs, a person with TBI has suffered serious damage. TBI greatly disrupts the brain’s ability to function.

Traumatic brain injury typically results from:

  • The head being struck by an object.
  • The head striking an object.
  • A jolt that speeds up or slows movement of the brain.
  • Penetration of the brain.
  • Forces generated from blasts or explosions such as an IED.

A concussion is a mild form of TBI that many service members experience. In most cases, a soldier, airman, sailor, Marine or National Guard member who suffers a concussion fully recovers from the injury. However, in some cases, a concussion carries lingering physical and mental effects, particularly if the person did not receive proper medical care or suffered a repeat concussion.

Many veterans suffer from TBI that occurred in battle. However, a veteran with TBI that occurred outside of combat may still qualify for disability benefits. For instance, a veteran may sustain brain injury in a civilian car accident while on active duty. This injury would qualify for the same service-connected disability compensation as any other injury that occurred during any part of the veteran’s active military service.

How Do You Know If You Suffered TBI?

In addition to immediate pain, TBI carries symptoms that include:

  • Seeing “stars”
  • Dizziness
  • Confusion
  • Loss of memory of the injury-causing event or time surrounding the incident
  • Loss of consciousness, or getting “knocked out.”

TBI symptoms that may develop later include:

  • Persistent headaches or neck pain
  • Sensitivity to light or noise
  • Blurred vision
  • Loss of balance
  • Fatigue or lack of energy
  • Trouble sleeping
  • Ringing in the ears
  • Poor memory
  • Slowness in thinking, speaking and reading
  • Trouble putting thoughts into words
  • Problems with concentration and organizing daily tasks
  • Poor judgment and acting without thinking (impulsiveness)
  • Depression
  • Apathy
  • Irritability
  • Anxiety (fear, worry and nervousness)
  • Outbursts
  • Mood swings
  • Personality changes.

If the above symptoms describe what you experienced at the time of your injury and/or what you are dealing with now, you may be suffering from a form of TBI. You have the option of getting screened for TBI by your regular physician or at a VA Medical Center.

Getting medical attention is important. Severe TBI can be degenerative. Unless you receive timely, proper treatment, the symptoms may grow worse over time.

If TBI prevents you from getting or maintaining a job, affects your relationships or disrupts your ability to perform daily tasks, your injury may qualify you to receive veterans disability benefits.

Although the VA may agree that you suffer from a disability, the VA’s ratings decision may fail to properly reflect the severity of your TBI. You may seek a lawyer’s review of your claim.

How Does the VA Diagnose a Traumatic Brain Injury?

The VA provides disability compensation benefits to eligible veterans who suffer from disabling TBI. To qualify for these monthly, tax-free payments, you must demonstrate that your TBI is service-connected, and that it causes you to be at least 10 percent disabled.

However, the VA does not view TBI as a singular condition. Instead, the VA rates the severity of each condition and symptom that a veteran’s TBI causes. Your disability benefits claim must reflect the diagnoses of each condition or symptom that your TBI causes.

The VA recognizes three ways in which TBI can affect a veteran:

  • Cognitively
  • Emotionally/behaviorally
  • Physically.

When you apply for TBI-related veterans’ disability benefits, a VA evaluator will review your service and post-service medical records. The evaluator may also ask you to undergo a medical examination.

The evaluator will use the VA guidelines, or “diagnostic codes,” to determine your level of physical and emotional/behavioral impairment. To determine your level of cognitive impairment and any physical and emotional/behavioral impairments that are not specifically defined under the diagnostic codes, the VA will use a separate table.

The table is called, “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” It  addresses 10 important “facets” of TBI:

  • Executive function – Memory, attention, concentration, goal setting and planning.
  • JudgmentAbility to identify and understand issues, consider alternatives, comprehend consequences of choices and make reasonable decisions.
  • Social InteractionAbility to interact with other people and respond to situations in an acceptable and appropriate manner.
  • Orientation – Knowledge of self, identity of companions, place, current actions, day of week and time of day.
  • Motor activity – Ability to perform precise learned movements and tasks.
  • Visual-spatial orientation – Ability to follow directions, avoid getting lost, read maps, judge distance and use GPS devices.
  • Neurobehavioral effects – Irritability, verbal and physical aggression, impulsivity, lack of empathy, unpredictability, belligerence, apathy, moodiness and inflexibility.
  • Communication – Ability to express and understand thoughts in spoken and written words.
  • Consciousness – Persistently altered state of consciousness such as a vegetative state, minimally responsive state and coma.
  • Subjective symptoms – All symptoms that do not fit into the other categories.

The table provides criteria for four levels of impairment for each facet. The criteria focuses on how much the condition impairs the veteran’s ability to work for a living, establish or maintain relationships and conduct routine activities of daily life.

If your impairment level is 0, you would receive a 0% disability rating. The other impairment levels and disability ratings are:

  • 1 = 10% rating
  • 2 = 40% rating
  • 3 = 70% rating
  • Total = 100% rating.

The “consciousness” facet only has the “total” rating. This is because any level of persistently impaired consciousness would be totally disabling.

Your disability rating determines the amount of your basic disability benefit. The higher rating that you receive, the more money you receive in your monthly benefit.

If your TBI disability rating is not 100%, the VA will combine the rating with one or more of your additional service-connected disabilities. You would receive a combined disability rating.

How Do You Prove Your Eligibility for TBI-Related VA Disability Benefits?

As mentioned above, after the VA reviews your benefits claim, a claims evaluator may order you to undergo a Compensation and Pension Examination, or “C&P exam,” at your local VA medical center. A VA doctor will conduct the C&P exam and render his or her opinion as to the nature and severity of your condition.

The VA will use the medical professional’s report and VA Diagnostics Codes and the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table as described above to determine a disability rating for your TBI. If you have one or more additional disabilities in your claim, a final rating will come from the VA’s Combined Disabilities Ratings Table.

If the VA denies you have a service-connected TBI or refuses to provide a C&P exam, you have the right to submit your own Independent Medical Examination (IME).

In an IME, a private doctor examines you and provides an opinion as to whether you suffer from a service-connected TBI and the extent of your impairment. An IME carries more weight if the doctor indicates that he or she also reviewed your service medical records and other medical documentation.

You may also support your claim by:

  • Asking your doctor to submit a Residual Functional Capacity Form (RFC). In this form, your doctor provides an overall assessment of your health and states why you should qualify for disability benefits.
  • Asking acquaintances to provide “lay statements” or “buddy statements.” In these statements, people describe their first-hand knowledge of your current condition and/or verify the incident that caused your traumatic brain injury.

How Do You Appeal a VA Decision About Your TBI Claim?

After the VA processes your claim, the VA Regional Office will mail you a letter that states your disability rating and monthly benefit amount. If you disagree with the decision, you have the right to appeal.

The VA claims process provides multiple levels of appeal:

Regional Office

To appeal the initial Ratings Decision issued by your RO, you file a Notice of Disagreement (NOD) with the RO within one year of the decision. If you miss the one-year deadline, the decision becomes final.

Board of Veterans’ Appeals

After it receives your Notice of Disagreement, the RO will issue a Statement of the Case (SOC). The SOC is a detailed review of the claim development and the VA’s review and Ratings Decision. The RO will then certify your appeal and forward it to the Board of Veterans’ Appeals (BVA).

At the BVA, a claims evaluator will conduct a fresh, or de novo, review of the facts and legal issues in your benefits claim. You may request a hearing at this stage. However, a hearing could slow the process.

U.S. Court of Appeals for Veterans Claims

If the BVA’s decision is not in your favor, you can take your case to the U.S. Court of Appeals for Veterans Claims (USCAVC).

The Appeals Court will review the BVA’s decision and determine whether there were errors in applying relevant statutes and regulations to your claim. The Appeals Court will affirm, reverse or send your case back to the BVA with instructions.

If you appeal the USCAVC’s decision, your case would go to the U.S. Court of Appeals for the Federal Circuit. To pursue a further appeal, you would need to petition the United State Supreme Court. If the Supreme Court denies your petition, the Federal Circuit’s decision stands.

Why Hire a Lawyer to Help with Your TBI VA Disability Claim Appeal?

The VA disability benefits system is supposed to be veteran-friendly. However, the rules and regulations governing the claims process can be confusing and frustrating for everyone involved.  You do not have to face the VA and its legal system alone. At Berry Law Firm, we know the way forward.

For many years, we have helped veterans to fight for their VA disability benefits on appeal. Our attorneys understand the claims process, the evidence necessary to establish service-connected TBI, how to maximize the disability rating and how to determine the proper amount of back pay that disabled veterans deserve.

Get help from our TBI VA disability claims attorneys today. Our office – 6940 O St, Suite 400 Lincoln NE 68510.