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Lawmakers in the US Senate are pushing back against the VA for denying traumatic brain injury (TBI) patients because of the agency’s flawed disability tests.
Unresolved questions about the Department of Veterans Affairs’ efforts to root out 25,000 veterans have resurfaced.
Kare 11 News originally exposed what led to a nationwide overhaul of the VA’s compensation system, with Senators Tammy Baldwin and Tammy Duckworth calling the agency on the carpet for veterans still suffering.
These lawmakers are demanding answers about how well the VA actually cleaned up the last scandal involving TBI. Hint, it didn’t go well.
In the VA TBI Denial Scandal
The infamous TBI denial scandal first surfaced when I began independently investigating how the agency trains its disability examiners for traumatic brain injury exams.
From 2007 to 2015, the Department of Veterans Affairs used unqualified doctors and nurses to perform initial disability exams for concussions, agency documents and veteran reports revealed.
VA TBI Specialists
For initial TBI disability examinations, the agency requires that the veteran be first examined by a neurologist, neurosurgeon, psychiatrist or physiatrist, according to VA’s own policy. Residuals after a TBI diagnosis can be assessed by other clinicians such as nurses (which often results in a poor outcome).
TBI dementia screening
Even if the VA solved the problem of unqualified examiners, the catch at the time was that once TBI was documented, veterans were sometimes evaluated with neuropsychological screening by a psychologist and inadequate tests such as dementia screening tests such as the MoCA or RBANS.
Using a screening tool designed to detect is one thing. Relying on that screening tool to assess all residuals of a TBI is another.
TBI imaging studies
Other veterans receive substandard imaging such as a CT scan years after a head injury instead of an MRI to detect brain damage. A CT scan is good for evaluating active brain bleeding, not chronic brain damage years later.
I brought the information and data to AJ Lago on Kare 11. From there, AJ exploded into infamy with his team through his coverage and field research. This led to a congressional investigation and a watchdog investigation involving the VA Office of Inspector General. AJ’s team even won some awards for important works.
RELATED: Who’s Behind the TBI Scam?
Due to public pressure, the VA eventually agreed to offer an equitable relief plan in which veterans who did not receive an exam from one of the four specialists would be eligible for a new exam. If the outcome is favorable, the VA promised to provide an effective date from the date of the claim.
About 25,000 veterans were affected, and many more veterans were not notified even though their conditions were involved.
It was 2016. Veterans had one year to request a new test, whether or not they were notified.
Bad TBI Denial Tomah VA
Now, these senators are demanding answers in the wake of Brandon Winschek’s case. The Marine Veteran’s claim examination was handled by the Tomah VA located in Wisconsin.
As for Winneshake, after an exam from an unqualified examiner, he continued years later to see a neurologist — one of four specialists — in 2016. The result was not good.
That neurologist used an inadequate dementia screening tool for the exam, which led to a false result. The veteran was denied the benefits he wanted.
Only in 2021 could the veteran be screened by a qualified psychologist to assess the veteran using tools with better fidelity than the dementia screening tool.
Winnesheek received his benefits, but the VA only granted him an effective date of 2020, not the date he originally filed for a claim in 2011.
Is this fair? No, it means that the implemented equitable relief scheme did not fully solve the problems. Although in theory it corrected the problem of unqualified examiners, it did not address the use of substandard test instruments.
The veteran seems to agree, with at least two senators pushing back against the VA to find out more. In a letter to Secretary Denise McDonough, she highlighted the problems reported by veterans:
Veterans have reported discrepancies with their TBI diagnoses to our offices, particularly within the Tomah and Minneapolis health care systems. Some veterans say they receive only brief screening tools without undergoing significant diagnostic tests, such as CT scans. Others chose to seek care outside the VA healthcare network and, after imaging and testing, were diagnosed with a TBI despite a previous VA denial. As a result, these veterans miss out on important treatments to alleviate their symptoms and receive disability benefits.
They asked the Secretary to provide a response to clarify how well the equitable relief addressed the underlying issues in obtaining the benefits they were entitled to:
1. Have VBA and VHA implemented all of the recommendations included in the September 2018 0IG report, and has VA taken any additional steps to ensure veterans receive adequate TBI medical examinations?
2. How many veterans requested reexamination for TBI-related issues? How many people were relieved of this;
3. How many veterans were denied equitable relief because they missed the one-year deadline?
4. If a veteran believes they have not received an accurate TBI diagnosis, what is the procedure for receiving a second opinion in rural VA facilities where only a TBI specialist is available?
Six years later, the VA has yet to provide public accountability for that relief package.
Related: Off-label treatment for PTSD
Current TBI Denial Issues
One of the biggest problems I have seen and heard from other attorneys is the VA’s use of contract examiners who frequently conflate PTSD with TBI.
This often results in a reduction in the overall disability rating. Otherwise, it may prevent the veteran from securing permanent and total benefits due to (im)potential improvement of PTSD.
Is the anti-pyramid approach correct here?
Not often.
The reality is that medial science has the ability to distinguish between many symptoms of TBI and PTSD. However, examiners frequently (and incorrectly) claim that such symptoms cannot be distinguished from “mere speculation.”
remember A TBI injury is a physical injury to the brain. PTSD is a mental health disorder. These are not the same type of condition, but they sometimes share symptoms.
Is there a way to win? Yes, but going it alone is dangerous.
To win in these situations, veterans often need to hire an attorney who will hire an expert to evaluate the medical evidence. Those veterans who go it alone often get stuck in the appeal hamster wheel or give up.
Abandonment is the most tragic outcome, especially since some health care is only available through the VA with a rated TBI. As for these veterans, they often go without the care they need and deserve because VA Uncle Sam is trying to save a buck off the vets’ backs.
Anyone with questions about these wrongful TBI denials and bad exams should not hesitate to contact us at Krause Law PLLC by phone or at (612) 888-9567. [email protected].
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