Va Didn't Consider My 4 Hour Neuropsychological Exam When Rating My Tbi Claim.

[Steve Ham]

Hello, I filed a NOD 17 August 2010 as a result of a rating decision for a Traumatic Brain Injury(TBI) rating increase dated 6 March 2010. The rating decision did not list the 4 hour Neuropsychological Test that was administered to me on 9 December 2009 as evidence. Before filing the NOD, I filed a request for reconsideration. The VA letter dated 4 August 2010 I received stated “We have no record of a VA examination conducted in December of 2009.” I filed a FOIA request and was told there was no record of the examination. I filed another FOIA request and found the examination results sandwiched between unrelated stapled documents. I sent the examination results to the VA and according to ebenefits they received the document 9 February 2012. Ebenefits lists the NOD as appeal pending. I have called the VA several times and the following is a timeline synopsis:

September 2012 - The VA received my Notice of Disagreement (NOD) on August 20, 2010, for my appeal seeking an increased rating for Traumatic Brain Injury. The VA records showed my appeal is under review by the Decision Review Officer.

31 January 2013 – Called VA today. I was told that my appeal is in the rating stage. The appeal has been rated and is being reviewed to determine if it is ready for award or if more information is needed or if there are any errors.

March 2013 – Called VA today. I was told today that my appeal is waiting for the DRO to finish the review. I told the VA person what I was told in January and she said, “that’s right.” I then asked her how long does that normally take and she said it takes about 194 days. So, I’m not sure what stage of the DRO review the appeal is in, or how long it could take.

April 2013 – Called VA Today. I was told today that my appeal is in the decision phase. The DRO is finalizing the decision. The DRO is the sole approval authority. The DRO will send a SOC after the decision is finalized, no matter if the appeal NOD is approved or denied ( I think the VA respondent was mistaken. I think I will only get a SOC if the NOD is denied.) There is movement and it shouldn’t be too much longer according to the VA.

7 May 2013 – Called VA Today. They told me today the appeal is awaiting the DRO Review???????

I know others have been waiting longer than me even though the NOD is approaching three years old. I don’t know if I should just continue to wait or if I should take some other kind of action. I don’t have a good feeling about it since the VA keeps changing their responses. The Neuropsychological Test was administered by a QTC Doctor contracted by the VA. I’m confident the results of the test warrant an increase in compensation. I would appreciate any advice I could get. I am a new member and this is my first post, however I have been following the Had-it forum for a long time. I have a lot of confidence in Had-it. I don’t have a representative because I felt I could do just as well if I did my own research and used Had-it as an expert resource. Thanks

[71M10]

If you have eBenefits with a premium access, log in and check the exam appointments section and see if they have scheduled/requested any additional C&P opinions. They sent my stuff back out three times trying to get an answer they wanted. Finally they ended up granting on the medical evidence they were given 5 years ago. They definately try to develop to deny. Patience and persistance are your watch words. If you don't mind paying the cost (usually 20% of retro) you could bring an attorney on-board. I don't know that it intimidates the VA, but it does keep things a bit more arranged and ready to roll if you need to head to BVA.

Best regards,

[john999]

I think if you have a very complicated claim or tons of retro then it is a good time to bring in a lawyer. If you don't understand how to win your claim then that is also a time to bring in the lawyer. If you have a claim that involved 30 years of retro that turned on some point of law and you are at least at the BVA then that is probably a good time for a law man. It is much easier for an objective person to get a grip on your entire claim and all ways to crack it. I remember telling my lawyer for my CUE that the VA doctor never asked me a word about my employment history. I knew this was not a good exam, but the lawyer knew the law that the VA violated by not focusing on both my social and employment impairment, and could quote precedents. A lot of times we vets know we are being screwed but we just don't know the exact legal terms. The lawyers know these things.