A Purple Heart recipient from the Iraq War and his wife have filed a grievance against a doctor at the VA Medical Center at Fort Harrison, accusing him of practicing outside the scope of his expertise when evaluating the residual effects of traumatic brain injury.

On Nov. 8, 2013, a screening panel with the Montana Board of Psychologists found reasonable evidence that VA psychologist Robert Bateen caused retired U.S. Army Capt. Charles Gatlin unreasonable risk of mental harm and financial loss by using the incorrect panel of tools to assess the residuals of his traumatic brain injury.

The board also found cause that Bateen failed to consider Gatlin’s prior medical evaluations, and that Bateen erred by offering opinions in an area of psychology for which he was not qualified to practice.

“He’s a psychologist making neuropsychological observations,” Gatlin’s wife and caregiver, Ariana Del Negro, said last week. “It’s as if the VA sends a patient with cancer to an eye doctor for assessment.”

The state Board of Psychologists agreed in part when it found reasonable cause in November. The results are now being contested by Assistant U.S. Attorney Victoria Fancis, who’s representing Bateen before the Hearings Bureau with the Montana Department of Labor.

In her motion to dismiss the case, Francis argued the state board lacks jurisdiction in the matter, saying it can’t pursue claims against employees for actions taken as a federal worker. She also said Bateen followed VA protocol when examining Gatlin, and that Montana doesn’t require a psychologist to have a specialization in neuropsychology.

Francis has asked the Hearings Bureau to dismiss the case, saying such claims represent a form of “interference and intimidation” of the VA and its employees. If the findings stand, she added, it could increase the VA’s cost of providing mental health care to veterans.

“The result can be that in every case where there is a TBI, the board will need to require a full psychological battery in order to avoid claims against (its) employees by state licensing boards,” Francis said. “This can have significant monetary consequences and delay.”

Francis said she wasn’t free to discuss the ongoing matter and referred to her motion to dismiss the case.

David Scrimm, chief of the Hearings Bureau in Helena, said the hearing has been set for early June. However, the motion filed by Francis arguing the state lacks jurisdiction may trump the issue altogether.

“If the U.S. attorney is correct, that would strip the board of jurisdiction,” Scrimm said. “If not, we’ll move forward with the hearing.”

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While awaiting the outcome of the hearing, the Missoula couple turned its focus to the U.S. House Veterans Affairs Committee and its Subcommittee on Oversight and Investigation.

Gatlin and Del Negro testified before the subcommittee late last month in Tuscon, Arizona, where they accused the Fort Harrison VA of gross malpractice and of systematically downgrading TBI injuries to post traumatic stress disorder to cut treatment costs.

They asked the subcommittee to initiate an investigation into whether the state board’s findings on Bateen and the VA constitute criminal actions aimed at reducing benefits awarded to disabled veterans.

“They’re intentionally and systematically downgrading ratings across the board,” said Gatlin. “They’re arguing PTSD all the time. They’re arguing medical literature that’s not proven and finding the most convenient one and using it.”

Gatlin served as a scout reconnaissance platoon leader within the 25th Infantry Division during the Iraq War. While on patrol near Kirkuk on Sept. 28, 2006, an improvised explosive device detonated 20 yards away.

Gatlin lost consciousness in the blast and was initially hospitalized at the Balad Medical Center, where he was diagnosed with traumatic brain injury – one of the war’s signature wounds.

Over three years, Gatlin underwent three lengthy neuropsychological exams administered by three licensed neuropsychologists. Each test found deficits in multiple cognitive areas, including impaired visual attention, fine motor skills and the speed at which Gatlin processed information.

The final neuropsychological test, conducted in 2009, found that while Gatlin’s brain injury had stabilized, the deficits would likely be permanent. Based on the findings, he was medically retired from the Army with a 70 percent disability rating.

But what began as a positive experience with the VA took a turn in 2011 when Gatlin met Dr. Bateen at the Fort Harrison VA. The appointment was needed to establish Gatlin’s service-related benefits, known as CP within the VA.

During the exam, Bateen used a test known as RBANS, or the Repeatable Battery for the Association of Neuropsychological Status. The exam lasted one hour, Gatlin said, and it didn’t include the battery of tests he’d endured with prior doctors.

Surprised by the brevity of the visit, and with Gatlin’s disability claim riding in the balance, the couple asked the VA if the hospital planned to use Gatlin’s three prior neuropsychological exams to make its determination on benefits.

“We insisted that if the results weren’t going to be used appropriately, my husband should be referred for a proper neuropsychological assessment,” Del Negro said. “Our petition fell on deaf ears and my husband was assigned only 10 percent for residuals of TBI.”

After his exam, Bateen reported that Gatlin’s test scores had fallen within the average range. Bateen’s diagnosis suggested PTSD was at the root of Gatlin’s deficits. While it was possible Gatlin had a cognitive disorder, Bateen wrote, “it has apparently resolved.”

Dr. Alison Cernich with Mental Health Services, under the Department of Defense, reviewed Gatlin’s exam file and supported Bateen’s findings and methods of testing. In her appeal to the Board of Psychologists, Francis also noted the RBANS test had been cleared by the VA for use, and that Gatlin’s frustrations were misplaced.

“In essence, the veteran in this case made claims to the Montana Board of Psychology as a collateral attack on the denial of a certain level of benefits provided by the VA to the veteran wherein the veteran disputes the disability rating,” Francis said. “The veteran, and now the Board of Psychology, seeks to attack the manner and method of the CP residual exams…”

Gatlin and Del Negro said their requests for further testing were denied. During the Tucson hearing, the couple accused the VA of not contracting with outside neuropsychologists, leading Gatlin to suspect the hospital was intentionally downgrading disability exams “in house” in order to save money.

The VA Montana Health Care System denied such claims, saying it has providers who are highly trained in the complexities of TBI.

“We are unaware of any directive that would downgrade benefits claims,” said Terrie Casey, the voluntary service chief with the Montana VA.

Still, the couple is working to build evidence proving its suspicions.

“I find it hard to believe that a doctor (Bateen) who’s been practicing medicine for more than 20 years is that incompetent,” Gatlin said. “I think the VA is telling him to do it. I think it’s the other big secret the VA has.”

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Tana Ostrowski, a member of Gov. Steve Bullock’s Traumatic Brain Injury Advisory Council, raised similar concerns in her own testimony submitted during the Tucson hearing.

In 2011, the Community Bridges program with the Rehabilitation Institute of Montana received a contract with the VA to provide care to brain injury patients. Over the course of two years, however, the clinic didn’t receive a single VA referral, Ostrowski said.

The residential program closed at the end of 2013.

“Yes, we thought we would be receiving referrals,” said Ostrowski, director of care for a post-acute brain injury rehab center in Missoula. “It’s why we went after the VA contract in the first place.”

Casey said the VA provides care for TBI patients within its own network. She said the Montana VA has one neuropsychologist on staff in Behavioral Health and one that works on a fee basis.

The agency also contracts with other VA centers.

“VA Montana has providers who are highly trained in the complexities of TBI,” said Casey. “We also utilize our national network which is specialized to address TBI needs. We network with and refer to our regional TBI center in Denver and ‘powerhouse’ centers in Minneapolis and Palo Alto (California).”

Gatlin and Del Negro said they’re frustrated with the VA. While their case appeared easy at first, given Gatlin’s prior diagnoses of TBI, they said it has since turned into a stressful nightmare.

They worry about the implications to other vets and their families who don’t have the time, energy and means to challenge the system. If they’re suffering from TBI, they added, the challenges may be even greater.

“This case is no longer about holding a doctor accountable for violating the tenets of his licensing with the state,” Del Negro said. “The VA has now made it a case regarding state versus federal rights. We just want to get the VA out of our life.”