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bigoc

Va Grabbing At Straws Again

Question

I had a TBI rating low balled with a pretty desperate excuse.  I am currently service connected at 40% TBI.  I had a civilian neuropsychological exam that showed extensive problems that would have meet the 70 if not 100% rating.  Many references to "severe" deficits.  The evidence is solid and I believe even the VA agrees to this.  Now this is where they(VA) began look for a way out.

Based off the RO decision date as a base line, the decision stated that my private exam was conducted 10 months prior to the decision and the VA exam was conducted 4 months prior to the rating decision and that VA need to use the most current exam available.  The VA exam was the C&P exam and had to be the most current by the way the process of filing a claim works.  In addition the VA tried to use a civilian primary care doctors records that made reference to a learning disability at age 13.  Current exam was conducted at age 28 and the injury was incurred at age 25.  I went through normal schooling my entire life and this reference at age 13 is the only known reference to a learning disability that I can remember.  Another interesting excuse is as follows, it is almost funny how unprofessional the letter is written.

Sorry for the long post but this part is the really interesting read:

Here is some of what the letter reads that I feel is contradictory.

Reason for decision section:

Service connection for residuals , traumatic brain injury [TBI] has been established as directly related to military service.

Now skip through 2 pages of the VA C&P exam results which really do not mention any abnormalities except in one section.  Then you come to the evaluation decision which I will list now.

The examiner's diagnosis was that of mild concussion.  The examiner opined that it was less likely as not that your mild neurocognitive dysfunction was attributed to your service durning combat as you manifested abnormalities prior to military service, and have been able to maintain your same level of functioning(working, physical activity) subsequent to military service.  The examiner's opinion had minimum probative value since it was predicated on a singular report of a learning disability at age 13, per private treatment records in the claimant's file.

In all honesty it seems like the VA said this one is really severe.  Lets throw 40% at him and see if it sticks and drum up some BS to discount a more severe rating.

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Do you have a copy of the C&P?

From my non expert opinion, you've been SC despite the examiners statement of "less likely as not" which is somewhat rare.

There seems to be a contradiction though, because they also state "The examiner's opinion had minimum probative value since it was predicated on a singular report of a learning disability at age 13". I'm guessing because I havn't seen the exam report but it seems the examiner must have felt your cognative issues are more than "mild" as the RO states.

Have you filed your NOD yet? You will get a better rating if you fight this one. You will have to force them to disregard the possible learning disability at age 13. I'm not sure how to go about it though. My thoughts are that if you took the entrance exam before enlistment and passed enough to be admitted into service it should be proof you did not have a signifacant cognative dissorder at entry.

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I do not have a copy of the C&P.  I figure my best bet is to get a IMO from my neurologist stating that a learning disability at age 13 has nothing to do with my TBI.  I really don't think the doctor will disagree with me.  After all my TBI was the result of a IED and then if that was not enough I had a parachute accident that is listed in my service medical records and in the VA decision.  The parachute accident resulted in a diagnosis of a mild concussion.

I should probably know how to do this by now but how do you file a form 9 and what should I include.

Thanks for that help

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I do not have a copy of the C&P.  I figure my best bet is to get a IMO from my neurologist stating that a learning disability at age 13 has nothing to do with my TBI.  I really don't think the doctor will disagree with me.  After all my TBI was the result of a IED and then if that was not enough I had a parachute accident that is listed in my service medical records and in the VA decision.  The parachute accident resulted in a diagnosis of a mild concussion.

I should probably know how to do this by now but how do you file a form 9 and what should I include.

Thanks for that help

Get yourself a copy of your C&P. Read it. It may save you a lot of (1) frustration, (2) guessing, (3) money, (4) time.

Do this BEFORE you start shooting off I-9's and IMO's and all that other stuff.

I'm trying to say, your C&P may be TOTALLY fantastic. Trust me on this. I went the "other" route, and MY foot was the only one with a bullet hole in it, and my lips were the only ones with crow feathers stickin' out!

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Yep, what Larry said.

Also, the neurologist probably won't comment about any relationship between a possible learning disability and current cognative problems. It's not their area of expertise. You'll have to talk to a psychologist, psychiatrist or preferably a neuropsychologist. But look at the C&P first.

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Might be another stupid question, but how do I request a copy of my C&P?  For that matter my whole file as I have multiple conditions I am rated on.  

I did not know I it is as simple as just calling or sending in a form.  With the amount of private doctors I used as evidence they may need a hand truck to deliver the stack to my door.  I am really only partly kidding.  There is a lot of supporting paperwork.  My SMR are about 2-3 inches thick and I believe my private stuff is even more.

On another note I still do not understand how the diagnosis can be of mild concussion and that my "mild" in VA opinion condition is less likely than not attributed to my combat service.  With this they still assigned me 40% TBI.???????  Not that I want to be denied but how could they assign me a service connection with this opinion?

Maybe this is because they are owning up to a concussion listed in my SMR from a parachute accident that was conducted stateside and this is less of a rating than if my neuro injury was incurred in combat as I claim.  The parachute accident was post(about 18 months) IED blast which first caused the TBI and I believe this injury further aggravated my condition.  

Edited by bigoc

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