NOD & C&P Exam and New Evidence Question

[oscar81]

Hi brothers and sisters,

I'm new to this blog I have been reading a lot of information. But I have a specific question about my situation. When I was rated last time I had 10% for my back, 10% for my knees so I was at 30%. Fast forward till now, in December I filed for an increase of my back issues because I have a sciatica and its really hindering my way of life and that of my family. In January I was given a C&P Exam. The doctor that did it, did ask me question on how was I feeling and then he proceeded to do the tests.

When he did the forward flexion he asked me is that the farthest you can bent and I said yes  (he was asking like not believing me of course). I thought he had actually used his Brom Tool  and also when I did the side lateral flexion he didn't even measure my left side because the exam table was on his way. Well I thought nothing of it when he was filling out the DBQ for my back he didn't ask me that many questions and he was like don't worry I'm going to help you (sure buddy). 

So in February a month later I got my ratings and I was like OK that was pretty fast. When I received it they only raised it to 20% I went to my Benefits website and I saw that the doctor had put that I was able to flex to 40% which is a lie of course and he said I don't loose any power without repetition, but he never did any repetition test either. And other mistakes and answers that I didn't even give him.

So my question is, I did Physical Therapy for the VA in April 2015, for 3 months and it was at an outside location not the VA. So I asked for the records that were sent to the VA and it didn't have all the notes from the Physical Therapist. So after I received my ratings and the letter, on the letter it said that they had seen all my medical records from the VA and my new MRI and all this info that I gave them. But the notes of the PT aren't in there, so I went and requested a copy from the PT that I went to and to my amazement I saw that when I went there the first time he did my measurements and he put it at 20% and when I left after 3 months he was able to help me to get it 22% according to the CFR if I have forward flexion of 30% or less I should be at 40%. 

Is this good enough evidence to send in a NOD? And can I just tell them on the NOD the information that I found from the PT, and how the test was conducted by the doctor that did the Exam? I believe a review by a DRO of the whole case and paperwork would grant me my 40% correct or what do you guy/gals think? I mean my back is getting worse by the years not better so how can the VA think that from 20% flex it can go to 40% when I haven't even had a permanent doctor with the VA for 2 years.

Thank You,

Oscar

[Navy4life]

When was your denial?  

You can file a request for reconsideration but the downside of requesting a reconsideration instead of a notice of disagreement is that if the decision isn't made within the one year appeal period you will have lost any chance to appeal the first decision if you don't get a favorable decision on the request for reconsideration.  I would only do the request for reconsideration if you are ABSOLUTELY positive of the outcome of the claim.

My personal opinion....file an NOD and request a DRO hearing in the NOD