Traumatic Brain Injury Notebook With a StethoscopeA traumatic brain injury (TBI) often affects nearly every aspect of a Veteran’s life—creating physical impairments as well as changes in cognitive function and the ability to relate to others. When the effects of a TBI make it impossible to maintain substantially gainful employment, Total Disability Individual Unemployability (TDIU) benefits provide medical care and monetary compensation at the 100% schedular rating level. 

How the VA Rates a TBI

Disability ratings for Veterans with TBI are based on the symptoms experienced as a result of the trauma and measured according to an Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified, under 38 CFR § 4.12a. There are 10 potential categories considered in rating a TBI:

  • Impairment in memory, attention, concentration, and executive functions
  • Decline in written and/or verbal communication skills
  • Altered judgment
  • Inhibited social skills
  • Diminished motor activity
  • Visual-spatial disorientation
  • Subjective symptoms such as depression and anxiety
  • Neurobehavioral effects such as irritability, impulsivity, and verbal aggression
  • Lack of awareness of surroundings
  • Loss of consciousness

Each category is rated 0, 1, 2, 3, or total. A 0 corresponds to a 0% rating, which means the injury is related to military service but causes no symptoms. A 1 corresponds to a 10% mild rating, a 2 corresponds to a 40% moderate rating, a 3 corresponds to a 70% severe rating, and total corresponds to a 100% rating. If any category receives a total rating, a Veteran is considered 100% disabled. If no category receives a total rating, the Veteran receives a rating corresponding to their most severe category of symptoms.

Please note that veterans can only receive ratings for symptoms associated with a single disorder. For example, a veteran who uses depression symptoms to receive a rating for a TBI can’t request separate benefits for their depression.

Imaging tests, including CT, MRI, and PET scans, are crucial in diagnosing a TBI. However, reports from neurologists, psychological reports, buddy statements, and lay statements can also be valuable evidence in supporting a higher disability rating.

Conditions With a Presumed Service Connection to a TBI

Unfortunately, Veterans with TBI often suffer from multiple serious medical conditions. If you’ve experienced a moderate or severe service-connected TBI, the VA must presume that the following conditions are also service-connected:

  • Seizures with no other identifiable cause
  • Parkinson’s disease
  • Hormone deficiency diagnosed within one year of moderate or severe service-connected TBI
  • Dementia diagnosed within 15 years of moderate or severe service-connected TBI
  • Depression diagnosed within three years of moderate or severe service-connected TBI or within one year of mild TBI

Each of these conditions receives a separate rating, and then the conditions are added together to provide your total disability rating. However, since no Veteran can be more than 100% disabled, the VA uses what is often referred to as VA math to calculate your total rating. This formula begins with your most significant disability and then calculates how your lesser conditions affect the non-disabled portion of your body.

Qualifying for TDIU

Often, Veterans with a TBI don’t qualify for a 100% disability rating under schedular criteria but have symptoms that are severe enough to prevent them from working. In this case, they may be able to receive TDIU benefits.

To be eligible for TDIU, a Veteran must:

  • Be unable to maintain substantially gainful employment. This is typically defined as earning above a poverty-level wage in a position where no special accommodations are being made for a Veteran’s disability.
  • Meet the disability percentage criteria. With a single service-connected condition, a Veteran must be rated at 60% or more. With two or more service-connected conditions, one must be rated at least 40% disabling, and the combined rating must be 70% or more.

It is typically necessary to have a vocational expert testify as to the specific ways in which your symptoms are preventing you from obtaining suitable employment. Social Security Disability Insurance (SSDI) determinations can also prove helpful in supporting your claim for TDIU, although it’s possible to qualify for SSDI and not be eligible for TDIU since each program uses slightly different criteria.

Get the Benefits You Deserve

Veterans with TBI often find that their request for TDIU benefits has been unfairly denied. When this happens, working with an experienced attorney is the best way to protect your rights throughout the appeals process. Call the office of Sean Kendall, Attorney-at-Law, or fill out the contact form on this page to schedule a free, no-obligation initial consultation. You’ve served your country, and we’re here to serve you.

 

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