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Notice Of Disagreement?

notice of disagreement claim nod tdiu

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#1 SSGmajik

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Posted 24 July 2012 - 01:18 PM

I wanted to get some thoughts on how I should approach my disagreement with the VA's decision on my rating. I filed 10/2010 for TDIU. I received a rating decision in 04/2012 and my TDIU was deferred. All ratings below are all service connected.

In my rating decision for both my neck and lower back were lowered, because of the C&P doctor statement from my exam in 11/2010. My lower back was lowered from 40% to 20%, because C&P examiner said I had a forward flexion of 60 degrees, but he did not even do a ROM exam! Also, in 03/2010 my Neurosurgeon did a ROM exam a said I was limited to 10 degrees due to increased pain! Again, C&P examiner said that he did a ROM and I performed all movements and he stated "Physical examined revealed no objective evidence of painful motion, spasms, or weakness". I'm in constant pain and have a lot of spasms, especially when being put through a ROM exam, and my sciatic nerve is damaged and causes weakness in my right leg! All documented in my medical file. I am also on strong pain medication! My neurosurgeon also stated in his notes that my condition will only deteriorate and get worse. The VA has all this documentation as well.

Same exact scenario happened with my neck. No ROM exam, but C&P examiner put same BS as above and said I had a forward flexion of 35 degrees and it lowered my neck from 20% to 10%.


So, last week I saw a physical therapist at the VA who performed a ROM exam with a goniometer by request from my PCP. He measured each movement 3 times. Relevant measurements were on average, Lumbar Flexion 11 degrees, and cervical flexion 29 degrees. According to the CFR 38 part 4.71a my lumbar should have stayed at 40% as well as my neck at 20%.


I'm not sure what to do from here. I saw my VSO and he showed me my TDIU claim has not even been looked at since a rating decision was made in April. Plus, he thought it was unusual for a claim to be this old and complex that there was only 6 notes in the system on my claim.

Should I file a notice of disagreement now and add this new ROM as new evidence and ask why the ROM performed by my neurosurgeon in 03/2010 was overruled by the C&P examiner?

What other proof due I need that shows that the C&P examiner lied or to discredit him?

Does anyone have a good format for a Notice Of Disagreement letter?

Any help, info, & opinions is always appreciated!

Thanks,
SSGmajik

#2 71M10

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Posted 24 July 2012 - 02:30 PM

SSGMajik,

Do you have the exams? My experience has been that those doctors that are to lazy to do the exam right are also to lazy to falsify it right also. If they don't list three measurments in the exam notes, immediately send a request to have the exam thrown out since it was not completed correctly. I tried to find it in the CFR but can't quite lay my hands on it, but after a certain period of time, a rating cannot be reduced on the results of just one examination(other members help us out with the citation please). Did they list these other medical documents in the decision as evidence? If they didn't (and VA had them) I would indicate in my NOD that the C&P examiner conducted no range of notion testing and this is supported by progress notes by Dr. X on Y date. Are you rated for the neurological deficits/problems casued by your back? If they haven't, ask for a rating for that in your NOD per the footnotes on "Ratings of the Spine".

Best of Luck!

#3 SSGmajik

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Posted 24 July 2012 - 02:51 PM

SSGMajik,

Do you have the exams? My experience has been that those doctors that are to lazy to do the exam right are also to lazy to falsify it right also. If they don't list three measurments in the exam notes, immediately send a request to have the exam thrown out since it was not completed correctly. I tried to find it in the CFR but can't quite lay my hands on it, but after a certain period of time, a rating cannot be reduced on the results of just one examination(other members help us out with the citation please). Did they list these other medical documents in the decision as evidence? If they didn't (and VA had them) I would indicate in my NOD that the C&P examiner conducted no range of notion testing and this is supported by progress notes by Dr. X on Y date. Are you rated for the neurological deficits/problems casued by your back? If they haven't, ask for a rating for that in your NOD per the footnotes on "Ratings of the Spine".

Best of Luck!


Thank you 71M10! The VA only used the C&P examiner's measurements and did not even say anything about my neurosurgeons measurements. I do have a copy of the C&P exam and the examiner did not state that he measured each movement 3 times. I got a copy of it 2 months after the exam and sent a letter to the VA asking for a new one stating that a ROM was never performed. The VA does have my Neurosurgeon documentation, but did not list it as evidence in my rating decision. Any advice on how I should word and format a NOD? Currently my total rating is.....

Depression- 50%
Lumbar- 20% (Was 40%)
Neck- 10% (Was 20%)
Radiculopathy/nerve damage- 10%
Residuals, Surgical Scar- 0% (Was 10%) C&P examiner also lied on this one too. Never touched my scar, which it has scar tissue attached to my nerve and burns & stings when touched!

#4 jvretiredvet

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Posted 24 July 2012 - 03:21 PM

but after a certain period of time, a rating cannot be reduced on the results of just one examination If a particular evaluation has been held for less than 5 years, a proposal to reduce can be made strictly on the basis of one examination or set of evidence ( 38 CFR 3.444© http://www.benefits....ART3/S3_344.DOC ) . However, Revision of Decisions, specifically 38 CFR 3.105(e) http://www.benefits....ART3/S3_105.DOC would appear to be valid as well.

If a particular evaluation has been held for 5 years or more, it isn't appropriate to propose to reduce on a single examination or set of evidence.

Readers, please do not confuse this with the 10 & 20 year rules.

SSGMajik,

Do you have the exams? My experience has been that those doctors that are to lazy to do the exam right are also to lazy to falsify it right also. If they don't list three measurments in the exam notes, immediately send a request to have the exam thrown out since it was not completed correctly. I tried to find it in the CFR but can't quite lay my hands on it, but after a certain period of time, a rating cannot be reduced on the results of just one examination(other members help us out with the citation please). Did they list these other medical documents in the decision as evidence? If they didn't (and VA had them) I would indicate in my NOD that the C&P examiner conducted no range of notion testing and this is supported by progress notes by Dr. X on Y date. Are you rated for the neurological deficits/problems casued by your back? If they haven't, ask for a rating for that in your NOD per the footnotes on "Ratings of the Spine".

Best of Luck!



#5 SSGmajik

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Posted 24 July 2012 - 03:50 PM

but after a certain period of time, a rating cannot be reduced on the results of just one examination If a particular evaluation has been held for less than 5 years, a proposal to reduce can be made strictly on the basis of one examination or set of evidence ( 38 CFR 3.444© http://www.benefits....ART3/S3_344.DOC ) . However, Revision of Decisions, specifically 38 CFR 3.105(e) http://www.benefits....ART3/S3_105.DOC would appear to be valid as well.

If a particular evaluation has been held for 5 years or more, it isn't appropriate to propose to reduce on a single examination or set of evidence.

Readers, please do not confuse this with the 10 & 20 year rules.


Thank you for the info, I will look into these.

#6 carlie

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Posted 24 July 2012 - 06:06 PM

The VA does have my Neurosurgeon documentation, but did not list it as evidence in my rating decision.
Any advice on how I should word and format a NOD?


If your Neuro's documentation was current and YOU submitted it or provided
a ROI for it - it should be shown in the evidence section and addressed somewhat
in the R&B section.
If it is not and it can be used as a basic reopen like N&M and factored in.
It's not exactly a reopen in our understanding but that is how VBA will classify it.
JMHO

#7 SSGmajik

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Posted 24 July 2012 - 06:40 PM

If your Neuro's documentation was current and YOU submitted it or provided
a ROI for it - it should be shown in the evidence section and addressed somewhat
in the R&B section.
If it is not and it can be used as a basic reopen like N&M and factored in.
It's not exactly a reopen in our understanding but that is how VBA will classify it.
JMHO


Thank you Carlie! The evidence was current and was submitted with my claim in 10/2010 & an ROI was as well. They did not have it listed in the evidence page in the rating notification letter nor was it mentioned in their reasoning for lowering it. They only stated evidence from the C&P exam. Is there a form I need to send to reopen my claim with this evidence?

Sorry, but I do not know what R&B or N&M stands for.

#8 free_spirit_etc

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Posted 24 July 2012 - 08:15 PM

Thank you Carlie! The evidence was current and was submitted with my claim in 10/2010 & an ROI was as well. They did not have it listed in the evidence page in the rating notification letter nor was it mentioned in their reasoning for lowering it. They only stated evidence from the C&P exam. Is there a form I need to send to reopen my claim with this evidence?

Sorry, but I do not know what R&B or N&M stands for.


New and Material (evidence)
Reasons and Bases (for the decision)

#9 SSGmajik

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Posted 24 July 2012 - 08:17 PM

New and Material (evidence)
Reasons and Bases (for the decision)


Thanks for letting me know!

#10 free_spirit_etc

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Posted 24 July 2012 - 08:20 PM

There is an interesting thread HERE about C&P exams.

Wing's post #3 also shows part of a BVA decision where the Board found
:
"Given the fatal deficiency in the March 2008 examination report, as well as the inadequacy of the January 2008 examination report, there was no evidentiary basis to conclude that the Veteran's hearing loss had improved. 38 C.F.R. § 3.344©. There was no other evidence on file at the time of the reduction that suggested any improvement in the disorder. Consequently, there was no basis for the reduction, and the 20 percent rating is restored, effective from the date of the reduction."

#11 fiasco007

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Posted 24 July 2012 - 09:56 PM

Thank you 71M10! The VA only used the C&P examiner's measurements and did not even say anything about my neurosurgeons measurements. I do have a copy of the C&P exam and the examiner did not state that he measured each movement 3 times. I got a copy of it 2 months after the exam and sent a letter to the VA asking for a new one stating that a ROM was never performed. The VA does have my Neurosurgeon documentation, but did not list it as evidence in my rating decision. Any advice on how I should word and format a NOD? Currently my total rating is.....

Depression- 50%
Lumbar- 20% (Was 40%)
Neck- 10% (Was 20%)
Radiculopathy/nerve damage- 10%
Residuals, Surgical Scar- 0% (Was 10%) C&P examiner also lied on this one too. Never touched my scar, which it has scar tissue attached to my nerve and burns & stings when touched!



How can they just randomly lower your rating like that? I have heard the horror stories but I am yet to experience it myself 1st hand. I have also heard people talk about not submitting a claim cause they might lower their overall rating. Is there that many mistakes and random variables in any one person's record that upon closer examination, they could find XYZ reasons to lower your rating?

Maybe i just dont "Get it" can someone explain?

#12 SSGmajik

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Posted 24 July 2012 - 10:12 PM

There is an interesting thread HERE about C&P exams.

Wing's post #3 also shows part of a BVA decision where the Board found
:
"Given the fatal deficiency in the March 2008 examination report, as well as the inadequacy of the January 2008 examination report, there was no evidentiary basis to conclude that the Veteran's hearing loss had improved. 38 C.F.R. § 3.344©. There was no other evidence on file at the time of the reduction that suggested any improvement in the disorder. Consequently, there was no basis for the reduction, and the 20 percent rating is restored, effective from the date of the reduction."


Wow! At least they admitted their mistake, but to put the veteran through all this trouble is ridiculous! It's unfair that we have to prove their mistake, but they can lower our rating or state our condition is improving without proof!

#13 SSGmajik

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Posted 24 July 2012 - 10:18 PM

How can they just randomly lower your rating like that? I have heard the horror stories but I am yet to experience it myself 1st hand. I have also heard people talk about not submitting a claim cause they might lower their overall rating. Is there that many mistakes and random variables in any one person's record that upon closer examination, they could find XYZ reasons to lower your rating?

Maybe i just dont "Get it" can someone explain?


They simply went by my C&P examiner who apparently was disgruntled! He pretty much made up my whole C&P exam! All my medical evidence shows my back condition is deteriorating & will not improve, but only get worse! I was even approved for a medical retirement from government job right before I filed my claim! They do what they want & hope you just don't fight it, but if you do you have to prove them wrong!

#14 iraqx2

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Posted 25 July 2012 - 06:01 AM

Yes, use it ! The Notice of Disagreement is one of the veteran's most important tool. I've written several during my battles. It sounds like you have the medical evidence to disprove what they are saying and unjustly lowering your rating.

Heck, you can also disagree that not only the rating should not have been decreased but rather INCREASED. Their decision opened up a new door for you of 365 days for you to appeal. Your case has now avenue to go to a DRO hearing, BVA, up to Court of Veterans Appeals.

Last time the VA tried to screwed with my rating, they failed and it went the other way and I won.

But also, your paperwork and all the examinations must be in order. I would 1st start by getting a copy of your VA medical exams and go thru it with a fine tooth comb.

Good Luck

#15 Notorious Kelly

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Posted 25 July 2012 - 06:12 AM

SSGmajik,

I don't have any advice.

Just wanted to say I'm sorry you're having to deal with this unecessary anxiety.

Fight em & win! Posted Image

#16 SSGmajik

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Posted 25 July 2012 - 06:22 AM

SSGmajik,

I don't have any advice.

Just wanted to say I'm sorry you're having to deal with this unecessary anxiety.

Fight em & win! Posted Image


Thank you, I appreciate that! There are so many of us that unfortunately have deal with some type of VA BS!

#17 SSGmajik

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Posted 25 July 2012 - 06:25 AM

Yes, use it ! The Notice of Disagreement is one of the veteran's most important tool. I've written several during my battles. It sounds like you have the medical evidence to disprove what they are saying and unjustly lowering your rating.

Heck, you can also disagree that not only the rating should not have been decreased but rather INCREASED. Their decision opened up a new door for you of 365 days for you to appeal. Your case has now avenue to go to a DRO hearing, BVA, up to Court of Veterans Appeals.

Last time the VA tried to screwed with my rating, they failed and it went the other way and I won.

But also, your paperwork and all the examinations must be in order. I would 1st start by getting a copy of your VA medical exams and go thru it with a fine tooth comb.

Good Luck


Thanks for the help! Would you happen to have a example letter or a template on what & how to write a NOD? I'm trying to write it, but I don't want it to be too long were they start to skim it & not pay attention to the evidence again. Should I request a DRO hearing or any of the others? Thanks again for your help!

#18 USMC5811

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Posted 25 July 2012 - 07:10 AM

Using the hadit.com search engine - I found the following for a sample of a NOD:

www.hadit.com/vaclaimslibary/law/nodsample.gif

For some reason having problems posting the link to the NOD sample but if you just type: Sample of Notice of Disagreement in the search box of hadit.com (located just above the title of this thread) you will be able to click on the link it provides.

Hope this helps a little.....sorry about the troubles they are causing you.


There is also some good information - scroll down to Carlie's post here:

http://www.hadit.com...ew-officer-dro/

Edited by USMC5811, 25 July 2012 - 07:14 AM.


#19 SSGmajik

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Posted 25 July 2012 - 07:21 AM

Using the hadit.com search engine - I found the following for a sample of a NOD:

www.hadit.com/vaclaimslibary/law/nodsample.gif

For some reason having problems posting the link to the NOD sample but if you just type: Sample of Notice of Disagreement in the search box of hadit.com (located just above the title of this thread) you will be able to click on the link it provides.

Hope this helps a little.....sorry about the troubles they are causing you.


There is also some good information - scroll down to Carlie's post here:

http://www.hadit.com...ew-officer-dro/


Thank you, this is great info! Hopefully I can get my NOD letter out today or tomorrow. I just don't want to mess this up!

#20 iraqx2

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Posted 25 July 2012 - 07:55 AM

An NOD is just like a formal " business" letter format. Make the headers, date, to and from, topic, and title, etc.

Explain it, simple and to the point what your disagreement is. Most importantly, why. Send it to the VA and they will send ( or should ) send you an acknoledgement letter that you have filed a dissagreement. From there, they will ask for more information and evidence. Send it to them and keep track of everything. Make new appointments for your disabilities, be on their radar, always. The ball is in their court now.

Please also keep in mind that the NOD will also serve as a " bridge " for retro pay.

Good luck

#21 Berta

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Posted 25 July 2012 - 08:13 AM

SSGmajic stated

"I was even approved for a medical retirement from government job right before I filed my claim! They do what they want & hope you just don't...." etc.

You are right- they hope we do not question their decisions at all.

Was the med retirement from the fed job for the same SC conditions? If so does VA know that?

I know a local vet who was given 10% by VA but retired from the VA ,his employer,medically for the same condition.And also gets SSDI solely for the same condition from what he told me .I think FERS disability requiores application to SSDI too.

I gave him the TDIU form, urging him to see the rep who handled his 10% (which he never appealed.)
That was 4-5 years ago.
His philosophy, he stopped by the other day, is since there is such a backlog of claims he will wait until all that calms down and then file the TDIU form so it will go faster and he wont have to wait so long for a decision. Posted Image
I have given up trying to explain he might well be losing TDIU comp at 100% rate every month he procrastinates.

You claim sounds similiar as to the Federal disability but you sound definitely Proactive!!!- and I suggest not only to file the NOD but refer in the NOD to an attached TDIU form and then fill out,copy and mail the 21-8940 form available here at hadit.

We have suggestions here as to how to prepare the form.

"The VA does have my Neurosurgeon documentation, but did not list it as evidence in my rating decision." That point should definitely be made in the NOD. and that this neuro documentation was more accurate and explicit in detail than the C & P exam was as to the extent of that specific condition.

Is this a VA neuro or a private Neuro- and if private would they possibly prepare an IMO for you at a low fee if you need one?

Edited by Berta, 25 July 2012 - 08:19 AM.


#22 SSGmajik

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Posted 25 July 2012 - 09:06 AM

An NOD is just like a formal " business" letter format. Make the headers, date, to and from, topic, and title, etc.

Explain it, simple and to the point what your disagreement is. Most importantly, why. Send it to the VA and they will send ( or should ) send you an acknoledgement letter that you have filed a dissagreement. From there, they will ask for more information and evidence. Send it to them and keep track of everything. Make new appointments for your disabilities, be on their radar, always. The ball is in their court now.

Please also keep in mind that the NOD will also serve as a " bridge " for retro pay.

Good luck


Thank you for the advice, I greatly appreciate it! I'm going to get started on the letter!

#23 SSGmajik

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Posted 25 July 2012 - 09:18 AM

SSGmajic stated

"I was even approved for a medical retirement from government job right before I filed my claim! They do what they want & hope you just don't...." etc.

You are right- they hope we do not question their decisions at all.

Was the med retirement from the fed job for the same SC conditions? If so does VA know that?

I know a local vet who was given 10% by VA but retired from the VA ,his employer,medically for the same condition.And also gets SSDI solely for the same condition from what he told me .I think FERS disability requiores application to SSDI too.

I gave him the TDIU form, urging him to see the rep who handled his 10% (which he never appealed.)
That was 4-5 years ago.
His philosophy, he stopped by the other day, is since there is such a backlog of claims he will wait until all that calms down and then file the TDIU form so it will go faster and he wont have to wait so long for a decision. Posted Image
I have given up trying to explain he might well be losing TDIU comp at 100% rate every month he procrastinates.

You claim sounds similiar as to the Federal disability but you sound definitely Proactive!!!- and I suggest not only to file the NOD but refer in the NOD to an attached TDIU form and then fill out,copy and mail the 21-8940 form available here at hadit.

We have suggestions here as to how to prepare the form.

"The VA does have my Neurosurgeon documentation, but did not list it as evidence in my rating decision." That point should definitely be made in the NOD. and that this neuro documentation was more accurate and explicit in detail than the C & P exam was as to the extent of that specific condition.

Is this a VA neuro or a private Neuro- and if private would they possibly prepare an IMO for you at a low fee if you need one?


First, thank you for your help Berta!

Yes, my OPM medical retirement was do to my service connected conditions and the VA has my award letter from OPM and what conditions were used for my approval.

I already applied for TDIU in 10/2010, but they tried to increase my disabilities first. They deferred my TDIU and my VSO showed the note that the rater stated that my TDIU was deferred, because the C&P examiners results conflict with my medical documentation. Which I'm happy they noticed something was wrong with my C&P, but they apparently did not look at it for my rating!

My Neurosurgeon is a private dr and he wrote an IMO that I sent in with my initial claim, but again I don't think they truly cared. They did list it as evidence in my rating decision letter.

One thing I've slacked on is applying for SSDI. I need to apply, but I have a hard enough time keeping up with all my VA stuff, but I really need to get going on it though!

Yeah, that Vet needs to apply for TDIU now and not wait. Like you said he's losing money each month. Maybe he needs to work he can file it with a financial hardship which should expedite his claim anyway!

Thanks again for your help!

#24 SSGmajik

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Posted 26 July 2012 - 01:48 PM

I wanted to also ask if anyone would know if I should add some new conditions with my notice of disagreement or if I should wait and file a new claim after they decide my TDIU? I was diagnosed with GERD do to medications I'm on for my service connected condition and stress. I also developed an endocrine disorder that caused me to lose 50 pounds in 3 months and another 20 pounds in 6 months. That was over 4 years ago, but the endocrinologist has just recently related it to my pain medication for my back (service connected). Also with this endocrine disorder I developed gynecomastia in both sides.

Does anyone know where these would fall in the CFR 38 part 4? The endocrine disorder does not have a name, just states endocrine disorder in my medical file. I just feel like I'm falling apart!!!!!!!

#25 71M10

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Posted 26 July 2012 - 02:24 PM

Anything listed in a NOD that was not part of the claim that was decided is SUPPOSED to be set up as an additional claim. It won't be catastrophic to your NOD if you plan on going the DRO route, but it will prevent any transfer to BVA until the other new claims have been decided.

My experience has been that the VA gets horribly confused, doesn't do what they are supposed to when you present them with two things at once!

Best regards,

#26 SSGmajik

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Posted 26 July 2012 - 03:25 PM

Anything listed in a NOD that was not part of the claim that was decided is SUPPOSED to be set up as an additional claim. It won't be catastrophic to your NOD if you plan on going the DRO route, but it will prevent any transfer to BVA until the other new claims have been decided.

My experience has been that the VA gets horribly confused, doesn't do what they are supposed to when you present them with two things at once!

Best regards,


Again, thank you! I think I'll just wait and file it as a new claim after they close out my NOD and TDIU. Like you said, they get confused and I don't want them to get this NOD wrong!