Va Grabbing At Straws Again

[bigoc]

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.

[bigoc]

Thanks Larry.  That makes sense not to request the whole file.  I was just concerned what they were looking at.  wanted to make sure they had to whole picture and the obvious of asking my private doctor to tell me what he sent them is a nightmare for many reasons that are more to do with the various doctors office staff.

The advice on how to get the C&P exams is very helpful.  I had no idea where to start on that one.

[bigoc]

Long delay in getting my response back from the VA. Finally the reached their decision that was a mirror image of their first decision. The denied my claim based on the fact that the VA neuro exam is a more recent by a year than my neuro exam that was submitted with my claim.

More conflicting claims in the letter are as follows: The VA letter states that a TBI can not get worse or better over time. Even more ironic at the end of the letter it is stated that this is subject to further evaluation in the future. Why if it can not change per their own statement?

I suppose they are treating my request for increase based on a change in condition and not on evidence already in my file that I believe was not properly evaluated. I believe the VA and me may be arguing 2 different points. I do not know how to make it any clearer that my request is for a reconsideration of the original claim at the original condition and exam results and not a current change in condition. Yet the results of the 2 exams are vastly different. Of course my privately administered exam shows much more significant deficits than the VA exam.

All of this is more clearly stated in that my condition has not changed and the evidence is still the same. My exam says one thing and the VA exam says my condition is significantly less of a severity.

[Vync]

Long delay in getting my response back from the VA. Finally the reached their decision that was a mirror image of their first decision. The denied my claim based on the fact that the VA neuro exam is a more recent by a year than my neuro exam that was submitted with my claim.

The VA's exam was newer than your civilian exam because the VA was likely playing dragass in getting you an appointment. You initial entry said your exam was 10 months prior, but the VA exam was four months prior, which means your exam was probably a total of six months newer than the VA exam. I do not know where they say it is more recent by a year, unless you had additional VA exams at a later date. Please note that if you are already service connected and are requesting a higher rating, the VA likes to give an examination so they can determine if your condition has worsened.

More conflicting claims in the letter are as follows: The VA letter states that a TBI can not get worse or better over time. Even more ironic at the end of the letter it is stated that this is subject to further evaluation in the future. Why if it can not change per their own statement?

Conflicting VA statements happen all the time. One of my exams said I did not have a condition, but also said I had it at a minimal degree. Regarding TBI, it may get better over time based on the concept of 'plasticity', which means because other parts of the brain may compensate for the damaged part. I also knew a guy who was in a car accident and developed epilepsy. A few years later he had brain surgery, which luckily corrected the epilepsy, but still had lesser deficit problems.

I suppose they are treating my request for increase based on a change in condition and not on evidence already in my file that I believe was not properly evaluated. I believe the VA and me may be arguing 2 different points. I do not know how to make it any clearer that my request is for a reconsideration of the original claim at the original condition and exam results and not a current change in condition. Yet the results of the 2 exams are vastly different. Of course my privately administered exam shows much more significant deficits than the VA exam.

If you are filing for an increase, the VA will typically look back 12 months prior to the C&P exam for evidence for evaluating your current condition. Was your request actually for a reconsideration or NOD of your original claim?

All of this is more clearly stated in that my condition has not changed and the evidence is still the same. My exam says one thing and the VA exam says my condition is significantly less of a severity.

I am not an expert on TBI, but want to recommend looking into a few other factors. You might consider looking up the curriculum vitae of each doctor to determine if your doc has better/more experience than the VA doc. The VA loves to overrule external doctors, but if their doc is significantly less experienced than your doc, you might be on to something. You might also consider revisiting your civilian doctor so he can take a look at the VA response and see if he will write you a medical opinion in your favor.

[Pete53]

Might be time to talk to a lawyer or get an updated IMO. I had to get a second one for the same reason.

Pete

[john999]

I agree with that referral to a lawyer. A lot of these sharp lawyers know doctors who will do IMO's for you. If a claim gets into appeals and starts to go round and round I think it is time to get a lawyer. You have a TBI so the very fact that you can do the heavy lifting of an appeal weighs against you. I am not saying you can't, but why stress yourself.