VA SEEKING TO PROMULGATE A REGULATORY CHANGE IN HOW IT HANDLES SECONDARY ILLNESSES
On 7 December 2012 (Pearl Harbor Day), the Department of Veterans Affairs is proposing to change its disability compensation rating rules to add five diagnosable illnesses which are secondary to service-connected Traumatic Brain Injury (TBI). It would improve the timeliness of decisions. To accomplish this, the VA proposes to add a new subsection to its adjudication regulation by revising 38 CFR 3.310 to state that if a Veteran who has a service-connected TBI also has one of the five illnesses, then the illness will be considered service connected as secondary to the TBI.
It also does two other things:
1) For the first time, the VA defines the terms of severity (mild, moderate and severe) to make them consistent with Department of Defense (DoD) guidelines.
2) Establishes rules for service connection based in part upon the severity of the TBI and the period of time between the injury and onset of the secondary illness. The proposed rule does, nevertheless, allows a veteran to establish direct service connection in the event the time and severity standards are not met.
The date of promulgation of the new regulation is unknown, since it is currently out for public comment and subsequent review.
The VA reports its decision is based on a report entitled, “Gulf War and Health, Volume 7: Long-Term Consequences of TBI,” published over four years ago in December 2008 by the National Academy of Sciences, Institute of Medicine (IOM).
However, Secretary Shinseki seems to be making headway in speeding up — if not expediting — the cycle of identifying injuries and illnesses in a war, conducting reliable studies on them for disability rating purposes and issuing regulations (guidance) to administer claims. Yes, it is still taking a long time. TBI was identified as a signal war wound around 2004 shortly after our introduction into Iraq. But in comparison with what has been done for the Vietnam War veteran, over the issue of Agent Orange illnesses, the turnaround is lightning fast. Nor do we doubt the possibility exists the VA faced and faces hurdles in the Administration and in the Congress.
So what does the report say these five related illnesses are? According to the VA,
… the IOM’s Committee on Gulf War and Health concluded that “sufficient evidence of a causal relationship” (the IOM’s highest evidentiary standard) existed between moderate or severe levels of TBI and diagnosed unprovoked seizures. It also found “sufficient evidence of an association” between moderate or severe levels of TBI and Parkinsonism; dementias (which VA understands to include presenile dementia of the Alzheimer type and post-traumatic dementia); depression (which also was associated with mild TBI); and diseases of hormone deficiency that may result from hypothalamo-pituitary changes.
14 December 2012