TBI Service Connection

The June 2016 TBI Service Connection News.

So here’s the big TBI news….came out of the VA on June 1, 2016……bottom line up front:

If you have a TBI, and the VA denied your TBI Service Connection claim using a medical opinion by a non-qualified examiner, the VA will give you a new TBI Compensation and Pension exam and a chance to secure service-connection back to your original claim date.

That’s HUGE for Veterans – and the VA is patting itself on the back for taking this “Bold” action.

Let’s give credit where credit is due.

The VA did respond and did take “bold” action – I cannot recall the last time that a VA Secretary did something so broad and sweeping and immediate to effectuate a needed change in practice. So kudos to Bob McDonald for stepping up and doing the right thing one more time.

However, let’s not forget that Veterans and their advocates have been asking the VA to fix this exact problem since 2007.

It’s taken an 8 year investigation and media campaign to get the VA to a place where it was ready to take “bold action” to help the Veterans with TBI that it is charged to take care of.

The Story Behind TBI Service Connection and the VA TBI C&P Exam Fiasco.

Here’s how it went down:

Soooo….the VA’s own policy states that when a Veteran has a Traumatic Brain Injury, and he or she is seeking TBI Service Connection, the only doctors that can provide “nexus opinions” (aka, TBI Compensation and Pension exams) are the following types of medical personnel:

  1. Psychiatrist,
  2. Physiatrist,
  3. Neurosurgeon
  4. Neurologist

Problem is, since 2007, the VA has been using pretty much anyone to do these TBI Compensation and Pension exams.  

We have seen MANY cases where the VA used Nurse Practitioners to conduct complicated nexus opinion exams on Traumatic Brain Injury – or TBI – claims and appeals.

This is the metaphorical equivalent of asking the teenager next door to get your new  Mercedes running and back on the road again, simply because he worked a summer job at the Exxon repair shop down the street.

Sure, he may get it right – he may even be a “Mercedes Mechanical Guru”, but there’s a pretty darned good chance he’s not qualified to conduct diagnostic testing on your Mercedes.

Nurse Practitioners are skilled medical personnel – they train a lot and know a lot.

But they are, in no circumstance, qualified to diagnose TBI, no less render complex etiology, nexus and impairment rating opinions in  TBI service connection claims.

So this guy named Ben Krause – an investigative journalist, a Veteran and now a licensed attorney – figured this out, and started using the Freedom of Information Act (FOIA, pronounced FOY-uh) to gather information about how, exactly, the VA was falling short.

A team of investigative journalists in Minnesota picked up on Ben’s research, and began exploring how the VA was – again – failing to properly take care of the Veterans it was charged to take care of.

A few years later, a team of investigative journalists in Texas found a whistle-blower in the VA who showed the same problem in Texas that Ben had found in Minnesota. 

A HUGE shout out to these awesome Investigative Journalists in Minnesota and Texas- it seems, most of the time, that the Press is doing more to help our Veterans than the VA.

It was no longer disputable that the VA was using unqualified and untrained examiners to render TBI Compensation and Pension exam opinions on the etiology and degree of impairment suffered by Veterans with a TBI, and that the denial of TBI Service Connection benefits and treatment was the direct result of those inadequate opinions.

Additional documents released under the FOIA showed the following numerical ranking, by VA Regional Office, of the MINIMUM number of Veterans who were denied medical treatment – or VA Benefits – because the VA provided exams by unqualified or untrained practitioners:

Regional OfficeAffected  Veterans
Winston-Salem2,992
Atlanta2,091
Seattle2,076
Houston1,800
San Diego1,394
Los Angeles1,288
Muskogee1,279
Waco994
St Paul742
Montgomery950
Roanoke818
St Petersburg652
Detroit485
Salt Lake City477
Cleveland428
Louisville409
Milwaukee383
Portland370
Albuquerque331
Nashville309
New Orleans309
Indianapolis309
Denver301
St Louis298
Phoenix277
Oakland250
Philadelphia234
Columbia212
Little Rock209
Boston171
Honolulu167
Chicago149
Buffalo133
Reno102
Pittsburgh102
White River Junction101
New York86
Baltimore80
Sioux Falls77
Hartford77
Wichita70
Jackson66
Huntington55
Boise55
San Juan54
Des Moines51
Lincoln47
Newark46
Manchester45
Fort Harrison45
Providence36
Cheyenne27
Togus25
Anchorage21
Washington10
Fargo10
Wilmington8
Manila5
Total*24,588

What’s really scary about this is that TBI is very closely linked to CTE – a disease that has caused more than a handful of NFL players to commit suicide.

With 22 Veterans a day committing suicide, the VA screwed the pooch royally here – denying almost 25,000 Veterans a proper diagnosis, medical care, and/or benefits may well have led a good number of Veterans to take their own lives.

The Path Forward on TBI Service Connection and the VA TBI C&P Exam.

Listen, the Veterans Law Blog is all about Information, Power, and Action – giving you the information you need to have the Power in your VA Claim to push the VA to take prompt Action.

So, rather than rant on about the VA – again – screwing over the men and women in its charge, let me tell you how to use this information to improve your VA Medical care and benefits.

This guidance applies if ANY of the following describe you:

  1. You THINK you might have a TBI, or have some symptoms of a TBI, but are not sure
  2. You are SURE you have a TBI, whether or not you have been diagnosed
  3. You filed a VA Benefits claim for service connection of a TBI (or symptoms that might be a TBI even though you aren’t sure)  before June 1, 2016
  4. Your claim was denied because the VA expert was not a psychiatrist, physiatrist, neurosurgeon or neurologist

What to do:

  1. If you do not have any time remaining in the 1 year to file a Notice of Disagreement to the Ratings Decision denying your TBI Service Connection claim:
    1. Immediately contact the VA – in writing – and ask that the VA reopen your claim for TBI Service Connection (or service connection of symptoms that MIGHT be a TBI, if you’re not sure) based on the VA Secretary’s promise of equitable relief
    2. Ask that the old medical opinion be struck from the record, not relied upon by the VA at all, and ask for a NEW medical opinion from a psychiatrist, physiatrist, neurosurgeon or neurologist who is qualified and trained in diagnosing, rating, and assessing the etiology of TBI
    3. Ask that the VA, consisting with the Secretary’s announcement, give you the Effective Date of the original claim date – and past-due benefits back to that date –  if the VA concludes you now have a service-connected TBI
  2. If you DO have time remaining in the 1 year to file a Notice of Disagreement to the Ratings Decision denying your TBI Service Connection claim:
    1. Do all of the above, with one exception: do it on the VA’s mandatory NOD form, VA Form 21-0958
  3. Submit any written requests to the VA Evidence Intake Center by Certified Mail, Return Receipt Requested, even if you file the appeal or claim to reopen on eBenefits.  
  4. If you are STILL denied service connection of your TBI, or not properly rated, or if the VA flat out takes no action, it’s time to start talking to an accredited VA attorney that has experience working with Veterans with combat and non-combat TBIs.

If this post left any of your questions unanswered, feel free to send me a question using the green support button in the lower right corner.

(Click here to get a FREE copy of the Veterans Law Blog eBook: “How to Choose a VA Claims Attorney”…this FREE eBook is LOADED with insider info to help you find the right attorney for your VA claim or appeal).

 

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