Question About Rating Criteria

[bigoc]

I am currently waiting for a rating decision on my claim for TBI.  I have had the C&P exam for TBI.  

My question is, how a civilian neuropsychological test results would help my claim for TBI?

I had a the civilian test done and while the entire results are long, a few sections of the results almost mirror the rating criteria for total in the VA diagnostic code 8045.

I will list a few results from the civilian neuro test results:

Under Attention:1.  Notable difficulty in selective, focused, and divided and/or alternating attention(moderate)2.  Impairment in concentration (mild-moderate)

Memory:1.  Problems in verbal short-term memory marked by loss of information due to decay or interference(mild)

Learning and Memory:1. Moderate-severe impairment in ability to learn and immediately recall simple familiar words from a list when given opportunities for rehearsal and repetition; notable inability to remember expected number of words after 5 repetitions (CVLT Total List A < 1st %tile), a significantly below-average performance in comparison to age and education cohorts (moderate-severe)

Final diagnoses:

Post-Concussion SyndromeConcussionsDysthymic disorderPost-Traumatic Stress Disorder

Summary:

*  Probable degradation in (1) general intellectual ability and impairment in aspects of cognition, including (2) attention and concentration; (3) language and communication, particularly verbal fluency; (4) learning and memory , especially in the acquisition of new information and recall from short-term memory; (5) and, higher order processes such as cognitive flexibility*Depression with anxiety

I was wondering how this testing would compliment my claim since I included it in my claim and a copy was included with my C&P exam.  During the abbreviated neuro eval the VA does I had similar difficulty with as my civilian test.  There were references to Moderate and Moderate-severe in the civilian test and I feel this meets the rating criteria for rating code 8045 such as "objective evidence on testing of severe impairment of memory, attention, concentration, or executive function resulting in severe functional impairment.  And all of this is assuming service connection.

[bigoc]

Just going off of memory of the regs(for a quick reply-I'll research later) your results would indicate to me a total(100%) rating under the attention, consentration, memory portion of the residuals listed under 8045. But, I have several questions. Was your TBI C&P done by a MD psychiatrist? What was the qualifications of the examiner? I get the impression your neuro-psych testing was done privetly? The C&P examiner will have to determine your functional impairment based on the tests. The rater will make a percentage determination based on the C&P examiners report and not the actuall test results. So I hope you made sure the C&P examiner had a copy of the test or it was in your records before your exam. The reason I beleive your tests indicate to me a total(100%) rating is because mine is very simular. However, I was rated differently under the old regs. Have gotten a copy of your C&P exam results?

So first sorry for the long time to reply.  I have not checked this site in a few weeks, or this particular post for that matter.  I was given a 40% rating and have since filed a notice of reconsideration and received a reply with no change.   

Answer to your questions:  The test was done privately and he was a PHD Licensed Psychologist.  The test was available to the C&P examiner.  I filed a notice of reconsideration, and expectedly I was given a few reasons why that there was no change in the rating.

In the original reason for rating I was told that reference was made in my family doctors records that I had a learning disability at age 13.  This is true, and even with this information I am trying to understand how this effects the rating.  Service injury  aggravating a condition is also part of the rating process and not a eliminating factor.  But I think we are talking about 2 separate issues in reality, but I am trying to play their game and I believe I am still in the right with this.  

In the notice of disagreement reply I was told the C&P exam was the most current evaluation and that is the reason for the lower rating.  At least this is the best I can make of their explanation.  They pretty much said yes we received your private neuro but we like ours(VA) better.  Some kind of reference to the fact that mine privately administer test was done a year ago and the VA test was done 4 months ago and that they need to use the most current test.  I can not imagine this is a legitimate reason for giving a lower rating.  

I have done my claim so far myself.  That has ended and I am in the process of using a attorney and I also believe an IMO is the only way forward with this type of denial or low ball rating. 

[timetowinarace]

So first sorry for the long time to reply.  I have not checked this site in a few weeks, or this particular post for that matter.  I was given a 40% rating and have since filed a notice of reconsideration and received a reply with no change.   

Answer to your questions:  The test was done privately and he was a PHD Licensed Psychologist.  The test was available to the C&P examiner.  I filed a notice of reconsideration, and expectedly I was given a few reasons why that there was no change in the rating.

In the original reason for rating I was told that reference was made in my family doctors records that I had a learning disability at age 13.  This is true, and even with this information I am trying to understand how this effects the rating.  Service injury  aggravating a condition is also part of the rating process and not a eliminating factor.  But I think we are talking about 2 separate issues in reality, but I am trying to play their game and I believe I am still in the right with this.  

In the notice of disagreement reply I was told the C&P exam was the most current evaluation and that is the reason for the lower rating.  At least this is the best I can make of their explanation.  They pretty much said yes we received your private neuro but we like ours(VA) better.  Some kind of reference to the fact that mine privately administer test was done a year ago and the VA test was done 4 months ago and that they need to use the most current test.  I can not imagine this is a legitimate reason for giving a lower rating.  

I have done my claim so far myself.  That has ended and I am in the process of using a attorney and I also believe an IMO is the only way forward with this type of denial or low ball rating. 

So you have had two neuro-psych tests? One from the private Doc and one from the VA?

It does not matter if you had a learning disability at 13. Before you enlisted you had to pass an enlistment exam. Had you been incapable of passing the exam you would not have been allowed to enlist. You were cognativly capable for service.

"Learning and Memory:1. Moderate-severe impairment in ability to learn and immediately recall simple familiar words from a list when given opportunities for rehearsal and repetition; notable inability to remember expected number of words after 5 repetitions (CVLT Total List A < 1st %tile), a significantly below-average performance in comparison to age and education cohorts (moderate-severe)"

This is more than a "learning disability" a 13 year old would have in my opinion. In fact, though I hate to use the word, a score in the 1st percentile in this catagory exceeds the definition for a child to be legaly retarded.

The fact is,your injury has caused significant cognative problems you did not have prior to service. Your rating should include the whole of your disability.

What if a person loses the use of an arm? Would the RO say "You are only entitled to a 20% because when you were 13 you broke your little finger and it didn't work quite right after that."

Damn, the VA pisses me off sometimes.

[bigoc]

So yes I had 2 tests done, one private and one VA at the C&P exam with a VA psychologist.  At least I think it was a VA version of a neuro test.  It was very short in comparison to the private test which was several hours as compared to about 30 min for the VA.  

Everything about both the initial decision and the reply on my notice of reconsideration has been strange.  It is as if the rater looks at the file and sees that there is not an attorney involved, and just low balls and gives less then the required reason for the decision.

Using both a prior to service condition and  some kind of explanation that my privately administered test was not useful for rating my claim is really a stretch for them(VA).  I really thought the only hurdle I was going to have was the fact that I have such a severe injury but I am still able to work.  I thought working would limit the percentage that I would be able to get.  So I think I am going to have another fight on my hands once I get the testing used appropriately in my decision. 

 I really do not see why I can not be rated 100% if that is what the objective testing states and still work.  I have to put a lot of extra effort into making myself employable.  I believe I would be capable of achieving a much greater income without this injury.  

[timetowinarace]

Okay, no, you only had one true neuro-psych test. The 30 min shindig that was done at the C&P is inadaquate compared to the full range testing done privetly. The VA has two choices. Either give you a full and complete neuro-psych testing or use the private tests. NOD the decision based on this. They cannot use a lesser exam and ignore a COMPLETE exam to rate you. Also, they cannot use a possible childhood condition to give you a lower rating.

You will win if you keep fighting.

Do you have a copy of the C&P? If not, get one. You need to know if the examiner had used the private testing results while evaluating you. This is very important.

[bigoc]

Okay, no, you only had one true neuro-psych test. The 30 min shindig that was done at the C&P is inadaquate compared to the full range testing done privetly. The VA has two choices. Either give you a full and complete neuro-psych testing or use the private tests. NOD the decision based on this. They cannot use a lesser exam and ignore a COMPLETE exam to rate you. Also, they cannot use a possible childhood condition to give you a lower rating. You will win if you keep fighting. Do you have a copy of the C&P? If not, get one. You need to know if the examiner had used the private testing results while evaluating you. This is very important.

Thanks for the supportive words.  I read and know about the many crazy things the VA does, but they really do amaze me.  They make little references to many different things but will not completely deny me.  It is as if they want to say here, we can not completely deny you so here is 40%, even though the decision is not inline with our own criteria that we(the VA) made up.

Some of the explanation of the decision you would think they should have completely denied me.  It is amazing how you can have all your ducks in a row and they still deny you.  You go and get an attorney and all of the sudden you get what you deserve.  If you read their reason for the decision I should have gotten completely denied.  This tells me that the VA is not completely confident in their decision.  They should feel that way after the decision that I received.

I think either the raters are under pressure to deny or they are inexperienced at their own rating criteria.  Maybe a combination  of the two.

[timetowinarace]

Thanks for the supportive words.  I read and know about the many crazy things the VA does, but they really do amaze me.  They make little references to many different things but will not completely deny me.  It is as if they want to say here, we can not completely deny you so here is 40%, even though the decision is not inline with our own criteria that we(the VA) made up.

Some of the explanation of the decision you would think they should have completely denied me.  It is amazing how you can have all your ducks in a row and they still deny you.  You go and get an attorney and all of the sudden you get what you deserve.  If you read their reason for the decision I should have gotten completely denied.  This tells me that the VA is not completely confident in their decision.  They should feel that way after the decision that I received.

I think either the raters are under pressure to deny or they are inexperienced at their own rating criteria.  Maybe a combination  of the two.

It's very common for the VA to lowball the initial ratings. I'm quite sure it is intentional. I have not personally met anyone that has not had to NOD and appeal their way to a fair rating. This is especially true for mental disabilities including TBI. I believe it is the main reason for the huge backlog of claims.