As most veterans that have suffered from a TBI know, the rating system used by the VA is anything but simple to understand. Most of these same veterans, and their families also know that the VA finally admitted to performing “improper” screenings on at least 25,000 veterans. This admission did result in major changes to the TBI screening and rating process, but it is still far from perfect.
What a lot of TBI victims or their families do not realize, is that there are multiple other “disabilities/impairments” that come into play when dealing with a TBI and the VA rating system. The VA often just messes up when evaluating these medical problems due to the underlying TBI. These problems might be mental, physical or neurological.
The VA uses a Manual called the M21-1 Compensation and Pension Manual. This “manual” is basically the “Bible” for the VA in working claims. It has 11 “Parts” but we are really only concerned about “Part III” which is further broken down into numerous Sub-parts, Chapters, Sections and Sub-Sections. I bet a lot of heads are spinning already and we have only just started! Anyway, we are going to look at “M21-1, Part III, Subpart iv, Chapter 4, Section G- Neurological Conditions and Convulsive Disorders”. This “part” of the M21-1 discusses TBI’s.
What happens in a lot of TBI claims before the VA, the veteran (or his family member) has filed a claim for a “TBI” or maybe even just said “head injury” or “brain injury”. However, there are other problems that often go along with a TBI that MIGHT be entitled to a disability rating which is IN ADDITION to the rating for the TBI itself. Things such as migraines, generalized anxiety disorders, memory problems, self-care, pain, vision or hearing problems and many, many others are associated with a TBI, and could result in additional compensation for the veteran.
The VA, in making their evaluations of the other diagnosis associated with a TBI will always rely upon the “C&P” medical exam/opinion that they have requested. The Doctor writing the opinions will sometimes take the easy way out when preparing their report and this ends up causing lost benefits for the veteran.
The veteran will be confused for sure with this type of finding. Especially since IF the “Rating Decision” sheet is included with the “Notification of Award” sheet that is sent to the veteran, and the Notification of Award letter says the veteran is entitled to 30% for “TBI and adjustment disorder with anxiety & depression”, yet the Rating Decision findings say he is entitle to 10% for the TBI and makes a separate finding of 30% for the Adjustment Disorder with anxiety & depression.
So, again, in the above example, the veteran is awarded 50% total instead of 60%.
TBI claims are very complex and the VA follows very complex regulations and policies when evaluating these injuries. I would always strongly recommending that the veteran or family member assisting the veteran, contact an experienced and accredited representative immediately after receiving an award for a TBI. In fact, contacting an accredited and experienced representative before filing your claims COULD make a huge difference in the outcome. While it is possible to “win” a TBI claim on your own, it is one of the very few claims that I believe require at least the input of an experienced and accredited representative.
TCDD is 2,3,7,8-Tetrachlorodibenzodioxin, a chemical in a group of compounds named dioxins. It is what makes Agent Orange as notorious as it is, and is arguably the most toxic of all the dioxins, which is saying a lot, as dioxins are notoriously toxic.
TCDD wasn’t purposely part of Agent Orange, it’s a by-product of the process by which creates organochloride herbicides. Agent orange was intended to be a mixture of 2,4,5-Trichlorophenoxyacetic acid (2,4,5, T) and 2,4-Dichlorophenoxyacetic acid, (2,4-D) which were commonly used herbicides. There was already some controversy related to the health effects of these herbicides (particularly 2,4,5-T,) but it was the contamination of Agent Orange somewhere during the manufacturing process with TCDD that really made it so deadly.
Often, I hear people talk about illnesses related to Agent Orange as cause by “herbicide.” TCDD isn’t an herbicide, and wasn’t placed in there to kill plants, it was simply an accident, likely caused by Monsanto overheating the mixture during manufacture. (It’s interesting to note that other manufacturers, and even published, peer-reviewed studies had already warned that TCDD could be a contaminant when high temperature processes were used, but Monsanto used this method anyway, perhaps because it was cheaper or quicker.)
Even if the batch hadn’t become contaminated with TCDD, it would likely be the case that vets and civilians would have become ill, just due to the health problems associated with the herbicides, and the crazy amount they were spraying overhead. But TCDD is nasty, nasty stuff, even in small amounts.
Basically, TCDD activates proteins in our bodies called aryl hydrocarbon receptors, which help us protect ourselves from naturally-occurring toxic chemicals like benzene. These receptors trigger the production of enzymes called Cytochrome P450 to break down these hydrocarbons to protect our cells from the damage they cause. This is actually a GOOD thing, and we actually see with miniscule doses, LESS cancer and LESS diabetes in TCDD-exposed rats. However, as soon as you’re exposed to a decent dose for a period of time, everything goes haywire. The body can’t produce more P450 enzymes, so we are unable to break down toxins, and you see huge increases of cancer and the whole mess of health problems that we associate with Agent Orange.
It’s actually a very similar to the way heroin/morphine work and cause withdrawal. Heroin is an opiate receptor agonist, and TCDD is an aryl hydrocarbon agonist. When you take away the morphine, you get withdrawal symptoms because your brain stops making dopamine, since the heroin has been clogging up all the opiate receptors. With TCDD, instead of dopamine, you stop producing P450, whose job it is to break down all these cancer-causing hydrocarbons. It’s like letting loose a cancer free-for-all.
An important part of VA Disability law provides relief if a veteran suffers an injury or dies as the result of “negligent” VA health care, VA vocational rehabilitation, or the VA compensated work therapy (CWP) program. The Statute allowing these benefits is 38 USC § 1151, better known simply as an 1151 claim. A claim under Section 1151 is similar to a medical malpractice claim against the VA, but there are some very important differences.
In order to file an 1151 claim, a veteran or family member has to write the VA indicating that he/she believes that a permanent injury/disability, or death has occurred as the result of an action, or failure to act, of the VA. You MUST be able to show “intent”, in order to apply for 1151 benefits or VA disability benefits. Once this is done, the claims process should be triggered.
In order to win an 1151 claim involving medical care, the veteran or his family must prove: (1) that the disability or death was not the result of willful misconduct, and (2) the “proximate cause” was due to a VA medical provider’s carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or (3) that the outcome was not reasonably foreseeable. If the 1151 claim is due to voc-rehab, or the CWT program, then the rules are different and the veteran or his family member only has to prove “proximate cause”, but not negligence or fault. The VA defines “proximate cause” to mean that the action or event must directly cause the disability or death. In simple terms, it must be the actual cause of the injuries or death.
If a claimant is successful in the 1151 action, then the VA regulations require that the disability or death be treated in the same manner “as if” it were a service-connected injury. This means claims approved under Section 1151 allow veterans or survivors to receive VA Disability Benefits or Dependency and Indemnity Compensation (DIC), as applicable.
Most 1151 claims are very difficult to win because the “standard of proof” is pretty high, and always will require the opinion of a medical expert. Not surprisingly, the VA often fights these claims by saying that the medical providers use proper judgment and provided adequate care. They say the consequences of a medical procedure were foreseeable, or that the patient gave informed consent. This is where the medical expert employed by the veteran or his family comes into play by providing an opinion as to whether or not there was carelessness, negligence, lack of proper skill, etc..
Finally, it is important to know that there are other remedies beyond a Section 1151 claim that may be available in VA malpractice situations; for example, filing suit under the Federal Tort Claims Act (FTCA). The intricacies of filing an FTCA claim are beyond the scope of this blog; however, it is important to have an awareness that alternative remedies exist, and to discuss all options with an attorney that has experience with FTCA claims. At Hale Law Office, attorney Roger B. Hale has the experience to properly evaluate an 1151 or FTCA claim, and to fight for your benefits if a veteran has been injured, or dies due to the negligence of a VA Medical Provider, VA Voc-Rehab provider or a CWT program.