Effective January 16, 2014, the VA has a new rule regarding five medical conditions which have been medically associated with TBI through research by credible experts. The new rule (18 FR 76196) amends 38 CFR 3.310. The new rule came in response to a report of the National Academy of Sciences, Institute of Medicine (IOM), Gulf War and Health, Volume 7: Long-Term Consequences of Traumatic Brain Injury. The new rule establishes that if a veteran who has a service-connected TBI also has one of these five diagnosable illnesses, then that other illness will be presumed to be service connected absent clear proof to the contrary. The five illnesses presumed to stem from a TBI are:
(1) Parkinsonism, including Parkinson’s disease, manifested following moderate or severe TBI;
(2) Unprovoked seizures manifested following moderate or severe TBI;
(3) Dementias (presenile dementia of the Alzheimer type and post-traumatic dementia) if manifest within 15 years following moderate or severe TBI;
(4) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; and
(5) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI.
Although the VA rule is not binding on civilian courts in tort lawsuits for damages for a TBI, in my opinion it should be considered by the factfinder as evidence of a causal connection when the plaintiff asserts that his parkinson’s, seizures, dementia, depression or homone deficiency was caused by his TBI.
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