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bigoc

Tbi Va Low Ball Help

Question

I am rated by the VA for TBI at 40%. I have had a neuro-psych exam and the findings fit the 70% criteria. The VA rated me lower because of a finding of a learning disability referenced in my childhood doctors files. Yes this is what they used to give me a lower rating. I guess it amounts to a preexisting condition. I filled a NOD stating and referring to the exam. I believe the time as passed to file another NOD. I should have asked for help earlier but it is what it is.

Is there anything I can do? Possible have another exam.

Also the neuro exam that I refer to was privately administered and submitted by me with my claim. The VA never sent me to have an exam other than meeting with a psychologist to answer a few questions. I am certain it was not an full neuro-psych exam.

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Did you take an entrance exam?

Have you heard back from the NOD? You need to find out the status of your claim. A NOD probably shouldn't refer to your exams if they state a prior condition because they are aware you could be rated higher without the prior condition. The NOD should be made on the fact that they cannot differentiate the two cognative disorders. Learning disability and TBI are both cognative dissorders and would be rated as one rating if both were SC. Since they cannot seperate the two for testing and get two seperate test results you have to be rated on your current level of functioning. There is absolutley no way they can determine a childhood learning disability has effected your functioning 30% and TBI effected your functioning 40%. The only thing they can determine is that your current functioning loss is 70%.

Without cognative tests when you were a kid, no comparison can be made to determine how much of your cognative problems came from TBI or a "learning disability". Your childhood doctors opinion was subjective and cannot be verified. Your current tests are objective and cannot be refuted.

You completed service, passed training, was able to function as a soldier. You could not have had a substantial disorder at the time. The criteria for 70% is substantial.

I can't remember the federal codes anymore(my own TBI,lol) but there is the one about excaberated conditions.

A learning disability is not the same as organic brain damage but would be rated the same. Just like the VA cannot give you two seperate mental health ratings such as PTSD & Depression because they cannot differentiate the two on functioning, they cannot differentiate (seperate) your current functioning between a learning disability(cognative disorder) and organic cognative disorder due to trauma. They have to rate you on your current functioning or deny the claim. There is no way to say what your functioning would be today without the TBI so they cannot say you were 30% before the TBI and only give you 40% for the injury. I beleive you can win on this alone. I'll have to look it up later but I beleive this is stated quite clearly in the schedule for rating mental disabilities.

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§ 4.22 Rating of disabilities aggravated by active service.

In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at that time. It is necessary therefore, in all cases of this character to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule, except that if the disability is total (100 percent) no deduction will be made. The resulting difference will be recorded on the rating sheet. If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made.

This is what I mean. Take note of the last sentance, "If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made."

There is no way the VA can know the degree of disability you may have had at time of entrance without a specific evaluation at that time.

You need to NOD on this basis.

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Thank you very much for your kind replies. The reference to the degree of disability being ascertainable at entrance in service is very helpful. I will write a NOD on this basis. The only problem I have is that I am checking the date from the decision I received from the VA. I am not sure of the date as of now. I am in the middle of moving residences and my VA paperwork is packed up but I will check today. I may have a problem with the length of time that has passed.

If the years time to file a NOD has passed do I have any other options?

If not, I have not one to blame but myself. I should have kept up on this and should not have let this go on as long as I have.

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bigoc,

What is the date of the Rating Decision that granted TBI as SC'd at 40 % ?

You posted,

"The VA rated me lower because of a finding of a learning disability referenced in my childhood doctors files. Yes this is what

they used to give me a lower rating. I guess it amounts to a preexisting condition. I filled a NOD stating and referring to the exam."

When you get back together with your paperwork, please post exactly and completely, what is stated in the Reasons and Bases

in regards to the issue of TBI.

Only leave out personal info like name, claim #, address, etc..

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Ok the Rating decision for 40% TBI was granted on 26 June 2009. I did however file a letter asking for a review and reconsideration on 16 July 2009 asking to reference the privately administered neuro-psych test I included with my claim. This private exam referenced and included many descriptions in the results to "mild, moderate, significant short-term memory difficulty, clinically significant problems." I can get into more detail I just wanted to set the stage for the significance of the results of the private neuro-psych exam.

I believe there are 2 problems I have or the VA depending on how you look at it. 1. The finding is based on my private exam. To my knowledge the VA never administered a full neuro-psych exam. The exam the VA conducted was very short in nature about 30-45 minutes of questions. In asking a fellow veteran about his process at the same facility for TBI claim he is going through, he received the same line of questioning and was then sent to an outside facility to have a full neuro-exam administered. The VA letter under REASONS FOR DECISION there are several several paragraphs that start with "A level of severity of 0" which of course is favorable for a low ball offer. I am not sure what the section of reasons for decision is based on since I do not believe the VA ever conducted a full exam only preliminary. It is as if the VA examiner "pencil whipped" a full neuro-psych exam with out conducting one.

First I will include the response I originally stated with the reference to a childhood learning disability:

"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 during combat as you manifested abnormalities prior to military service, and have been able to maintain your same level of functioning (working , EMT/Fire Company, 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."

Here is the VA response to my letter asking for a reconsideration:

"You submitted a treatment report from (private facility) dated June 17, 2008. This report was considered in our recent decision. It was also reviewed and referenced by the VA examiner during the VA examination conducted on April 23, 2009. Although this report does indicate a greater severity of symptoms in some areas, it was conducted approximately ten months earlier than our VA examination and four months before you filed your claim. Our decisions must be based on the most current assessment of a disability. A review of the current VA examination and our Rating Decision dated June, 26, 2009, does not reveal any error. A higher evaluation for your residuals of traumatic brain injury is not warranted by the evidence of record. "

Sorry for the long post but it is rather complex

Edited by bigoc

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