Julie1975

Congrats and thanks for sharing!

I just wanted to give an update on my NOD. Had to take a break for a few months because thinking about my entire case and the crappy job the rater did would cause me severe stress and anxiety. So I'm refreshed but still overwhelmed. I ended up reopening my claim (request for increase) in eBenefits and just uploaded my entire NOD in a very neat and orderly fashion. I realize I can't appeal that route but I wanted to get something in the system. I was searching and searching where to send my hardcopy NOD but the VA's website had very limited information on NODs. I believe I have to send it all to the intake center but I'm extremely apprehensive about sending my file there. I have faxed over three items so far to the intake center (with confirmed receipt via fax) and every time they claim they didn't receive my information. So now I ponder the best method to send my hard copy NOD. The more I look into the NOD process, the more I'm confused. It's really hard for me to focus so one day I may feel sharp as a tack and the next I'm all over the place.

haha, yes my 23-page decision letter just has me shaking my head in confusion. Couldn't make this up if I tried. Another bizarre example is where they combined my GERD/IBS and gave me 10% for GERD. My STRs and C&P clearly documents my diagnosed IBS w/constant constipation/diarrhea My decision letter states: Your IBS "warrants a noncompensable evaluation based on: Alternating diarrhea and constipation". 38CFR clearly states a 30 percent rating is awarded for IBS with "alternating diarrhea and constipation" What the what?? lol

I know :( I'm in the process of figuring out where to send my NOD. The rater seemed to do this on quite a few items. On one of my contentions, there wasn't even a complete sentence to explain the denial. Like many here, my case was hastily decided due to the raters being overworked, understaffed, and pressured to turn out cases quickly. Just wish there was an easier avenue for reconsideration.

I was rated at 10% for both my left and right lumbar radiculopathy so I'll share the exact wording in my letter and the evidence I provided. The rating for my right is pretty spot on but I'm disputing the rating for my LLR. In my BBE letter the rater stated: "We have assigned a 10 percent evaluation for your lumbar radiculopathy, left lower extremity based on: mild incomplete paralysis. A higher evaluation of 20 percent is not warranted unless the evidence shows nerve damage is moderate. Although the examiner reported moderate symptoms, your wholly sensory symptoms are more suggestive of a mild severity level for VA rating purposes." The examiner wrote in my C&P exam: "Reflex exam indicated left ankle was 1+; sensory exam noted decrease in sensation in the lower leg / ankle (L4/L5/S1) on the left, and a decrease of sensation in the foot/toes (L5) bilaterally. The VA C&P examiner indicated symptoms of radiculopathy also included constant pain that was severe on the left lower extremity, moderate intermittent pain on the lower left extremity and mild on the right. Paresthesias and or/dysesthesias was mild on the right lower extremity and moderate on the left lower extremity. Numbness was mild on the right lower extremity and moderate on the left lower extremity." I find it puzzling that whoever rated my package went against the VA's own examiner medical exam; he/she did this on multiple items in my claim. The records I provided included a nerve study which was abnormal and consistent with my radiculopathy symptoms. I also provided my STRs (entire VA package was over 1,000 pages) so my LLR is well documented. In the last three years alone, my records reflected 26 visits (sick call's, doctor visits, lots of missed work, ER visits, injections, etc) relating directly to my lower back pain and my radiculopathy. They weren't just "I'm in pain" visits but some were detailed such as decreased sensation during exams, etc. I have a severe flare up at least once a month whereas I'm unable to straighten my leg. Anyway, just wanted to provide more detailed insight on my case for radiculopathy. Hope it helps. Good luck to you.

Congrats on the quick win! If you reopen the claims, are they effective back to the original effective date? I'm filing a NOD for the same reasons (VA overlooking examiner notes/diagnoses) and would prefer to do it through eBenefits.

Gastone, Thanks for all the information and the replies. I did read through GA 11-812 and what seems like a million other VA regs and guidance. I will include everything I reference that was not mentioned in the explanation portion of my BBE letter. I'm not disputing most of the C & P exam and felt my examiner for my general exam was very thorough and overall did a great job of capturing my disabilities. I really don't understand how the individual who rated my package came to their conclusion on the eight items listed above. Three or four items appears as they went against the examiners opinion/exam. Are these Raters doctors?. For example on my bilateral Carpel Tunnel, my BBE letter stated: "Although the examiner reported moderate symptoms, your wholly sensory symptoms are more suggestive of a mild severity level for VA rating purposes". On my examiner worksheet the doc confirmed a "positive Phalen’s Sign on the right and left median nerve and a positive Tinel’s Sign on the right and left median nerve". The examiner indicated my symptoms included: "constant pain in both my left and right upper extremities and paresthesias and or dysethesias in both my right and left upper extremities". The sensory exam reflected "decreased sensation for light touch bilaterally in my hands/fingers at (C6-8)". So I have a few items like that whereas the rater essentially didn't give a lot of weight to the examiners exam/opinion (I know I sound like a broken records on this but it seems the VA picks and chooses what they want to believe on those exams). I called one of the VSOs here in my area and got the guys answering machine saying his office was moving. To be honest, his message was a turn off and lacked the professionalism I would expect from a VSO; which is the same reason I didn't use the Purple Heart organization here in my city. Needless to say I am still without a representative and may just do all the work myself. I have a call into the VA this morning and going to ask them if they received my SISOC and Privacy Act Request for my C-File. Can't wait to check out the link you post on the Appeal Avoidance program. I know this entire process will take another year or two and I'm okay with waiting (today at least I feel that way, haha). It is what it is, ya know?

So I've been doing a lot more research and didn't realize how clueless I was on terminology used by the VA. I do have a couple more questions: 1) When I'm doing my appeal, to support my request I am referencing doctor visits that I already provided the VA. Should I also include copies even though I already sent my entire STRs to the VA when I originally submitted my claim? I don't want to inundate the DRO with documents they already have but...if it makes the DRO's life easier, I'd rather include them. I submitted about 1000 pages of medical records in my original claim. 3) Not one item from my medical records was referenced in my BBE letter. Is that normal? Gastone - I did not find very much info on the Appeal Avoidance Program. I'm pretty good at Googling and just didn't come up with much. Since I've last posted, I submitted the SISOC to request consideration of the additional items the VA suggested I claim. I also faxed off a request for a copy of my entire C-file. I'm also pasting below the beginning of my NOD letter (this will be a continuation to the VA appeal form). I would love some feedback. My entire appeal is up to 27 pages thus far. I just need to fine tune it, get a copy of the new items and attach them. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ JANE A. DOE VA File Number: xxxxxxxxx Refer to: xx/xx Notice Of Disagreement on Claim Filed 12/01/2013 Rating decision on 10/01/2014 Rating adjudicated by: Salt Lake City Regional Office Greetings, This is a notice of disagreement (NOD) to some of my initial VA rating decisions I received on 10/01/2014. Specifically, I disagree with the ratings cited in the attachments which includes my initial ratings for: 1) Thoracolumbar Spine 2) Irritable Bowel Syndrome; 3) Carpal Tunnel Syndrome, Left Hand/Wrist (major); 4) Carpal Tunnel Syndrome, Right Hand/Wrist (minor); 5) Lumbar Radiculopathy Lower Left Extremity; 6) Migraine/Chronic Headaches; 7) Vertigo; and 8) Entitlement to 100 percent Individual Unemployability. Each contention in disagreement is cited in the attachments. I respectfully request a "De Novo Review" by a Decision Review Officer. Please note that my disability claim was handled under the Benefits Delivered at Discharge program and was adjudicated by the Salt Lake City Regional office. If the VA satisfies my NOD on all issues, I withdraw my request and consider this matter closed. The key issues I wish to bring to your attention during this complete review are listed in the attached addendum. I have also taken the liberty of identifying some of the key medical documents relating to these issues. Any new items not originally attached to my original claim will be identified under the medical evidence section and in the supporting documents section as “NEW”. My husband assisted me in typing this NOD and obtaining the evidence. Thank you for you time and consideration on this matter. Sincerely, Jane A. Doe

Gastone, I will definitely check it out. I was looking at the MMWR and just had to sigh at the pending NODs in the current inventory. I've worked on my NOD for the past week and have the "guts" of my disagreement on each contention with exception of IU (I think it's up to 23 pages--my head hurts, my hands hurt, and my poor husband is a one finger typer, hehe). I feel a little beat down about it all and I'm having the never-ending flare up of my sciatic nerve pain which isn't helping. I think I'll fax of my "SISOC" for the feet issues the rater suggested. At least get those in the queue. I have been looking at the 2014/2013 BVA decisions to guide my word usage and noticed they are sooooo far behind. I'll let you know which route I go and what I find. Thanks a million for all the input. Time for me to Google "VA Appeals Avoidance Program" Sorry one more question...how would I know if my bilateral carpel tunnel (Median Nerve) and bilateral radiculopathy (Sciatic Nerve) were rated using the bilateral calculator (not sure if I'm saying that correctly)? I don't see it mentioned anywhere on my letter and both math equations equal exactly 90 percent.

Congrats on the quick success!

Berta, Thanks for the recommendation; I will use two separate forms. Yes, I do have a copy of the MRI results and planned on submitting it in my NOD package. Although all the ROMs mentioned above were included in my initial package, I plan on attaching them to the NOD with the MRI. This is only one of eight ratings I'm working on for the NOD....sigh - Julie

Thank you all for the thorough responses. I will submit that NOD and determine the best way to proceed; and check out the VA publication mentioned above. One more question...if the rater stated I may be entitled to additional benefits. He/she said to use a Statement in Support of Claim to file for, what looks like, degenerative joint disease in my toes and other foot issues (plantar fasciitis and 4 other feet conditions). Can I use the same form 21-4138 to include my NOD and file a claim for what the rater suggested? Rootbeer22: I will definitely keep you posted and cross my fingers, and arthritic toes, for both of us :)

Gastone, Thanks for the quick reply! I have not filed the NOD yet--I just received my BBE Monday so am going through everything. I do not have a VSO Rep and did the claim myself. All of the information I mentioned above (minus the MRI) was available to the Rater and included in my claim file. I'm not sure why the rater didn't consider my complete medical history; he/she seemed to use the C.F.R. loosely. I have other items rated just like my spine, such as carpel tunnel. My carpel tunnel (median nerve) was confirmed through a Nerve Conduction Test two years ago; the VA's contracted C & P examiner clearly marked "INCOMPLETE PARALYSIS = MODERATE" on both Left and Right wrists/hands but yet the rater stated in my BBE letter "Although the examiner reported moderate symptoms, your wholly sensory symptoms are more suggestive of a mild severity level for VA rating purposes". Boggles my mind that the rater seems to be disputing the physical exam I had with the VA contracted C & P examiner. It seems to me that this particular rater would pick and choose which ratings apply without considering all evidence. Additionally, I was denied IU and one of the rater's justifications for denial was that i applied for Vocational Rehab, which, according to the rater, is suggestive that I am able to be employed. The crazy thing is, if the rater had dug a little deeper and actually looked at my Voc Rehab application, he/she would have seen that I applied for the VA to assist me in making appointments, getting medical treatment, and aid in my daily living activities. Nowhere on my Voc Rehab app did I state I was looking to be employed. I had a horrible migraine the day of my Voca Rehab briefing so I no-showed. Physically, I just can't work a normal, full-time job. :( The only specialist I see at this point are my Pain Management Doc and my General Practitioner. Anytime I see another specialist as soon as they hear I am under the care of Pain Management, they won't touch me with a ten foot pole. My C & P exams were contracted out and I do have a complete copy of all my C & P exams, which I referenced above under the December 2013 date. I was Medically Boarded in the military so that's why there is the other ROM from the VA--I wasn't treated there, I was sent for the exam in case they medically discharged me from active duty. I think it may be time for me to find a good VSO to help with my claim. Do I need to send in the disagreement on plain letterhead or do I have to use their form and specify what I'm disputing? I was rated 10% or greater on 13 separate conditions and plan on filing a NOD on six of my SC conditions they rated. Thanks again, Julie

Good morning! I am working on a lengthy NOD for my initial rating. There are things that appear to me were overlooked or not considered. I hope it's okay if I piece-mail it in this thread for feedback. I'm still working on my opening statement but I broke down each contention below using a format found on this site. :) Here is the first one for my spine, my husband helped me with it. Please let me know what you all think; I've never appealed before so welcome constructive feedback. All medical evidence that I state below will be attached to my NOD. Specifically, I disagree with the ratings for the following: -------------------------------------------------------------------------------------- 1. Thoracolumbar Spine Rating a) WHAT: I disagree with the decision for 20% assigned for my thoracolumbar strain and lumbar degenerative disc disease status post spinal fusion, L5, S1/Spinal cord stimulator implants and laminectomy/Pain syndrome with degenerative changes per X-ray. b) WHY: My medical records and C & P exams reflects forward flexion of the thoracolumbar spine not greater than 30 degrees when factoring in the provisions of 38 CFR 4.40 & 4.45, and as cited in DeLuca v. Brown, 8 Vet. App. 202 (1995). In regards to my medical contention for the spine, forward flexion not greater than 30 degrees is a more accurate picture of my chronic spine condition, also known as DDD, Spinal Fusion, and Pain Syndrome. As stated in my and my husbands support letter to the VA in my original claim, I am not able to bend over and pick up items due to limited motion of my spine. If I drop an item on the floor I am unable to pick it up and will leave the item on the floor until my husband or kids pick it up. My husband has relocated many items in our home so they are within my reach without having to bend forward (i.e. shampoo, soap, utensils, towels, etc). My ability to bend forward has remained extremely limited. When considered as a whole, my disability picture clearly reflects limited flexion as noted in the medical evidence below IAW C.F.R. §4.7. c) Evaluation Seeking/Percentage: 40% in accordance with 38 C.F.R § 4.71a; based upon my range of motion of my thoracolumbar spine not greater than 30 degrees and including/considering my newest MRI which reflects my spine is continuing to deteriorate. d) Medical Evidence: - 12/17/2014: A range of motion was performed at QTC, San Antonio on as requested by the VA. While the examiner initially marked my forward flexion of the thoracolumbar spine at 60 & 40 degrees respectively, he noted additional limited function of my thoracolumbar spine. The examiner stated the following on my Thoracolumbar Spine Conditions Worksheet, section 20 in the remarks section: "There are contributing factors of pain, weakness, fatigability, and/or incoordination and there is additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The degree of ROM loss during pain on use or flare-ups is approximately 20 degrees for flexion, 10 degree thorocalumbar extension and all other directions". Forward flexion on this exam was 20 degrees for flexion and the combined ROM for my thoracolumbar spine was 70 degrees combined. Additionally, I’ve had three other range of motion exams and I have included a new MRI completed after my initial claim file date: - 08/19/2011: Range of motion test conducted by Audie L. Murphy VA Clinic in San Antonio Texas was as follows: forward flexion of the thoracolumbar spine is 25 degrees with evidence of painful motion at 20 degrees. Combined range of motion of the thoracolumbar spine not greater than 130 degrees. With painful motion, combined range of motion of the thoracolumbar spine not greater than 80 degrees. This exam noted that I had functional loss and/or impairment of the thoracolumbar spine with the following contributing factors: Less movement than normal, pain on movement, interference with sitting, standing and/or weight bearing. A goniometer was used and repetitive testing was completed during this exam. - 04/01/2011: Range of motion test conducted by Physical Therapy at the 359th Medical Group, Randolph AFB, Texas was as follows: forward flexion of the thoracolumbar spine is 20 degrees and a combined range of motion of the thoracolumbar spine not greater than 270 degrees. A goniometer was used but repetitive testing was not completed during this exam. - 12/03/2009: Range of motion test conducted by Physical Therapy at Wilford Hall Medical Center, Lackland AFB, Texas was as follows: forward flexion of the thoracolumbar spine is 27 degrees and a combined range of motion of the thoracolumbar spine not greater than 130 degrees with evidence of painful motion in each direction. A goniometer was used and repetitive testing was completed during this exam. - 03/25/2014: I had an MRI on 03/25/2014 which was not available when I filed my original claim. The MRI revealed: “L4-5 disk level: Disc is normal in height and signal. Small broad-based posterior disc protrusion with mild bilateral facet arthrosis and ligament flavum hypertrophy which results in mild bilateral subarticular zone narrowing and mild bilateral neuroforaminal narrowing. No significant central canal stenosis. L5-S1 disk level: Disc space height loss status post discectomy and disc spacer placement with mild endplate spondylosis with small posterior projecting osteophytes. No significant posterior disc protrusion. There is a small amount of abnormal tissue circumferentially about the thecal sac at the L5-S1 disc space level with asymmetric increased tissue in the left lateral recess and left neural foramen which results in moderate central canal stenosis. Abnormal tissue in the epidural space at L5-S1 favors granulation tissue, though exam is limited without IV contrast, which extends into the bilateral neural foramen resulting in moderate right and moderate to severe left neuroforaminal stenosis and mass effect on the exiting L5 nerve roots. IMPRESSION: Postoperative changes status post L5-S1 laminectomy and posterior fusion and L5-1 discectomy and disc spacer placement. Abnormal epidural tissue at the L5-S1 level favoring granulation tissue results in moderate canal stenosis at the L5-S1 level and moderate right neuroforaminal narrowing and moderate to severe left lateral recess and neuroforaminal narrowing with mass effect on the exiting L5 nerve roots.”

One more thing I wanted to add...they left off one of my kids in my award; my daughter who is a full-time student. So I just now applied in eBenefits using the "add dependents" app and once I submitted everything, I noticed I had a new claim listed. I refreshed and the claim went to complete. She is already reflected on my AB8 letter. I'm just stoked it took less than a minute to add my daughter. It took my husband two-years to add our son. Good to see the VA making improvements.

Thanks all! I received partial retro today as well as my BBE. I do have some questions about my C&P vs. Rating, so will post them in the appropriate forum. I am definitely appealing a few things. They did add in that they received my IU claim and it was denied :(. I just don't understand as my day-to-day living isn't anywhere near normal and I missed a ton of work the last four years of my career as indicated on my VA Form 4192; I believe it was 81 days missed in the last 12-months (even more the years prior). I retired because of my health issues and included a doctor's letter, my husbands letter, and my letter reflecting my daily struggles. My primary care physician stated I missed a lot of work and am not able to be gainfully employed due to my SC conditions. They added that my vocational rehab application was indicative of me being employable. Funny thing is, when I applied for the VR, I indicated I would like them to assist me in obtaining counseling, help with appointments, and help with daily living activities. I did not indicate I wanted assistance with obtaining employment as that wasn't my intent. The day I was supposed to have my VR briefing, I had a horrible migraine and couldn't get out of bed so no-showed for the briefing (the VA rated me 0 for my migraines/headaches). On a positive note, I was surprised to see that they indicated the following: "We have reviewed your records and they suggest you may be entitled to an additional benefit. Please tell us on the enclosed form that you want to file a claim for right patellofemoral syndrome and chrondromalacia; right breast scar; hallux valgus, plantar fasciitis with bilateral heel spur; and distal toes degenerative joint disease (fusion) both 4th and 5th toes IIPJ, with scars". Not sure what most of that is other than I've had some minor feet issues here and there. Anyway, hope everyone's having a great Monday!

Thanks for all the positive comments! I'll post an update when I receive my retro. Berta, According to eBenefits, none of my ratings were 40% or greater, but I'm still hoping they deferred IU.

Hello all. Looks like the VA is busy at work pushing through a lot of cases at the end of this FY. :) After submitting my BDD claim last June, eBenefits finally closed my claim and my AB8 states 90%. While I'm grateful I will be appealing a couple of the ratings (spine/sciatic nerve/median nerve/headaches). Some of the ratings do not match up with what the C&P examiner indicated on my worksheets. I am not working due to my disabilities and am puzzled my IU application isn't reflecting anywhere. Good thing I kept a copy of it after the VA stamped it last June. Now I'm just waiting on my letter so I may see why I was rated lower than my exams indicated. The backpay will be a relief too.

Congrats!

Thank you, US VET.

Good morning. I received my final VA rating yesterday and they rated my spine at 20%. Based on my initial post above, can anyone provide guidance on whether I have a case to appeal this rating? I've read about the DeLuca factor and although the C&P examiner marked my ROM at 40 degrees with pain, (honestly not sure why this rating was marked as I physically can't bend forward this far), he put in his notes that my ROM is limited to 20 degrees during pain or flare ups. I am also planning on filing an appeal for my lower left radiculopathy (sciatic nerve pain). I was rated 10% for this but I am limited on my functional ability due to the nerve pain. My latest MRI (which the VA does not have) reflects moderate to severe spinal stenosis. In my STRs, I have many many appointments and pain mgmt injections for my nerve pain with my pain ratings consistently at 8 or 9 on the pain scale. I also filed for IU with my initial claim but do not see that in eBenefits. I'm hoping I have a case to appeal based on the rating not reading the exam notes. I'm new to all of this so appreciate any guidance. Thanks! - Julie

Thanks for the warm welcome!

Hello all. This is my first post but I have been lurking for a while and appreciate all the great advice from this network. I received a copy of my C&P exams and was hoping for opinions on my spine ROM measurements. The examiner indicated my forward flexion ends at 60 degrees with pain at 40 degrees. On the section marked "Is there functional impact of ability to work?" he marked <YES> stating "The impact of the thorocolumbar spine condition on the claimants ability to work is moderate impairment for physical work and mild for sedentary work". In the remarks section he indicated "There are contributing factors of pain, weakness, fatigability, and/or incoordination and there is additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The degree of ROM loss during pain on use or flare-ups is approximately 20 degrees for flexion, 10 degree thorocolumbar extension and all other directions". I guess my question is, will examiners read all the remarks on these exams and use the ROM in the remarks section? Or will they use the data in the 'initial range of motion' section? I'm not sure why the doc indicated 20 degree forward flexion in the remarks section but marked it differently on the 'initial range of motion'. I realize I won't know how it's read until I get my final rating but just wanted to see if anyone else has had prior experience with this type of issue. Additional info: I've have three other ROMs (one from the VA and two from the military docs), I submitted with my claim so hopefully those will help my case (they were all under 30 degrees for forward flexion). Thanks :) - Julie