Writing The Nod

[jessie0054]

Hello again:

I am trying to write the NOD letter for my son.

Can you look it over and give me any pointers [ Be gentle it my first time!!]

Dear Sir/Madam

I received a rating decision dated November 20th 2006.

Consider this letter to be an offical Notice of Disagreement [NOD] regarding the following disability:

Degenerative Disc Diease of the Lumbar Spine, Rated at 10%

I disagree with Rating decision due to the following reasons:

[a] At no time during my C&P examination on October 4th 2006 did the examiner measure my range of motion with a goniometer. Title 38 part:

Accurate measurement: Accurate measurement of the lenght of stumps, excursion of Joints, dimensions and location of scars with repect to landmarks should be insidted on. The use of a goniometer in the measurement of limitation of motion is indispensable in examinatios conducted within the department of Veterans Affairs. Muscle atrophy must also be accurately measured and reported.

The Range of motion measurements used in my rating decision were results taken from the December 9th 2002 examination done by Dr. C----- 4 years prior to my C&P exam [ this record is in my file.

[c] The C&P examiner stated on page 28 of his c&p report this " The Range of Motion was deffered because he [ the examiner] didn't want to risk a Flare Up of my back pain.

[d] The examiner also stated in his report that i was to avoid twisting, bending or stooping.

[e] On page 29 of the C&P exam on October 4th 2006 the examiner also writes that there are effects on my usual daily activies = Chore= moderate, Exercise= Moderate, Sports=Prevented.

[f] The examiner also wrote that i only have intermitted low back pain which you treat with non-steroidal anti-inflammatory medication as needed. THIS WAS NOT A TRUE statement. I was taking on a daily routine basis as perscribed by my pcp for my chronic back pain the following medications and dosage;

Aleve 220mg tablets, 2 tablets 4 times a day.

Flexeril 10mg tablets, 2 tablets 3 times a day.

Gabapentin 300mg capsules. 3 capsules [900mg] 3 times a day.

At the time of the C&P exam i had just broken on right wrist the day before and was on Demerol 50mg tablets 1 tablet 4 times a day.

In March 2007 my pcp added an analegsis ointment applied to my back 4 times a day.

[g] The side effects of my medications, Drowsiness, dizziness, incoodination, mental confusion also interfer with my activies of daily living. Puts myself and others around me in danger on the job and while working.

[h] The C&P examiner also wrote on page 24 of the exam report " The lumbar spine condition more likely than not prevents him from working his mechanic job in my opinion. Mechanic work would require him twisting, bending and stooping which should be avoided. [Please see the attached Job description for a mechanic]

The Examiner also wrote " he [me] states Range of Motion of the l spine is not additionally limited by pain, fatque or repetitive use and that the additional loss of motion due to pain, fatique, weakness or lack of endurance. He answered "No"

This is not a fair and true statement as i was not ask about the above statement during the exam. If i had been ask i could have told him that just about any activity that i have to use my back for causes Pain. Standing to just wash the dishes i have to avoid the usual twisting and turning mmotions. i step from side to side. Same goes for sweeping the floor. I try to do whatever i can to avoid a flare up.

[j] Ankylosis is mentioned in the decision letter. Due to the 2 level disectomies and the spinal fusion fixed my lower spine in a neutral position [ zero degrees] But it wasn't taken into consideration.

[k] Statement in the decision letter states: Follow up report 6 weeks after surgery you reported only mild discomfort in the low back with no recurrence of radicular pain down the right leg. Dr C----- provided the opinon that you would be able to be gainfully employed with limitations on heavy lifing by the end of june 2006.

I was still at that time at 6 weeks post surgery still taking large doses of Narcotic pain medications. I'm sure that would have had a strong influence on the level of pain i was experencing on that day and things i might have said. I didn't seek treatment of the addiction i had developed over the prior 10 months before surgery until sometime in July 2006.

As for the limitation as to the heavy lifting he placed on me i was not employed at the time i was under Dr C------ care and hadn't worked since July of 2005 so he wasn't aware that i was a diesel mechanic by profession. The only work i have done or trained for since getting out of the military. It requires actions and movements that i can no longer do due to the 2 plates, rods and screws in my back tha prevent these actions.

[l] The last statement in the decision letter " since there is likelihood of improvement, The assigned evaluation is not considered permanet and is subject to future examination"

Please see the attached NEW MRI dated October 4th 2007. My condition continues to deteriate and now includes changes to the T11 and T12 as well as new changes to L1-L2, L2-L3,L3-L4, L4-L5, L5-S1.

Also see the New Progress notes attached with new stripations placed on my activities by my pcp as to no Prolonged Sitting or Standing.

[m] i beleive the whole picture of my disability warrants a highter rating of at least 40%.

I fully intend to continue to appeal until the benifits i seek have been granted.

I am requesting a DE Novo review.

I will be waiting your reply:

Sincerely:

Anything i need to change?? Add??

Thanks Jessie

[Pete53]

Since it is almost a year you should include a Form 9 with your statement. I recommend that you fill the Form 9 and add see attached statement.

[jessie0054]

Since it is almost a year you should include a Form 9 with your statement. I recommend that you fill the Form 9 and add see attached statement.

Thanks Pete:

I have sent the Form 9 to my son for him to sign and will add that attached statement in the letter. I am just waiting to get everything ready to send out when i get it back from him.

Jessie

[Berta]

Jessie- this is excellent!

When a vet attacks a faulty C & P like this- they sure help themselves get closer to an award that is appropriate.

I dont mean attacking the doctor- but step by step attacking the statements they made in the C & P with evidence that combats it all.

One question- is your son still employed?

If not has he formally applied for TDIU? I suggest attaching the TDIU form to this NOD if he is not working.

I see this statement in the C & P as supportive for TDIU: although it only specifies the mechanics job.

" The lumbar spine condition more likely than not prevents him from working his mechanic job in my opinion. Mechanic work would require him twisting, bending and stooping which should be avoided. [Please see the attached Job description for a mechanic]

If he applies for TDIU make sure he also applies for SSA and check Yes to # 18 and then under Remarks $ 25, refer to attached page and there he should tell them of the side affects of his meds that hinder employment - (if he cannot drive due to the meds or SC condition, and anything else the VA should consider for TDIU award.

I will attach the TDIU 21-8940 form

TDIU_form.pdf

[jessie0054]

Jessie- this is excellent!

Thanks Berta: I appreciate this coming from you!! It mean a lot!!

When a vet attacks a faulty C & P like this- they sure help themselves get closer to an award that is appropriate.

I dont mean attacking the doctor- but step by step attacking the statements they made in the C & P with evidence that combats it all.

One question- is your son still employed?

Yes he is still trying to work, He has too to support himself and his 10 year old son.

If not has he formally applied for TDIU? I suggest attaching the TDIU form to this NOD if he is not working.

I see this statement in the C & P as supportive for TDIU: although it only specifies the mechanics job.

" The lumbar spine condition more likely than not prevents him from working his mechanic job in my opinion. Mechanic work would require him twisting, bending and stooping which should be avoided. [Please see the attached Job description for a mechanic]

If he applies for TDIU make sure he also applies for SSA and check Yes to # 18 and then under Remarks $ 25, refer to attached page and there he should tell them of the side affects of his meds that hinder employment - (if he cannot drive due to the meds or SC condition, and anything else the VA should consider for TDIU award.

Berta.

i don't think it will fly since he is still working. Also he applied for SSA when he was going through Chemo for his cancer and again doing the 12 months he was off because of his back and having surgery.They said that following the surgery he could go back to work by June 2006. Well at the time they denied him he was already off work for a year, So basically he was forced to return to work and yes as a mechanic as that is the only thing he knowns and has been working at since he was 14 years old. He has a great boss who is also a Veteran and he watches my son's condition worsen daily. He has tried to help by taking him out of the manual labor and created a position with in the office. But now his pcp has put further restrictions on his avoiding sitting and standing for prolonged periods. So i don't know what his boss well look at this. He can't do the mechanic job and now the office job, you know a man can only go so far as to keep him working and the money coming in i don't see him putting up with it for very much longer. His boss wants to retire and i don't beleive the new owner will keep my son working with his health conditions.

He was denied both times he applied for SSA and he is so fed up with the system!!!

Jessie

[Berta]

Jessie- I assume his cancer is NSC-

Is there any way in which his SC condition medically has 'aggravated' the cancer?

I did a topic here available under the search feature for claims of "aggravation" for secondary service connection.

If a SC disability "aggravates" a NSC disability then the level of aggravation can be service connected as secondary.

[jessie0054]

Berta:

Jessie- I assume his cancer is NSC-

No this cancer was not service connected even thou his oncologist [ out side the VA] wrote a letter in support of my son's claim that both his cancer's [ Appendix and Blood Cancer] in his opinion were caused by his exposure to the jet fuels, Benzene and the fumes and exhause of the jet fuels caused both his cancer's.

They service connected his Blood Cancer but not the appendix.

I am still looking for that connection. I have found in a medical journal that said that this cancer is caused by Gastrisis [spelling?] He was treated in the Military with Gastroenteritis on one occ.

He was treated however several times as a child in the hospital before service with appendix flare ups. it is listed as a condition on his entry exam into the Navy.

I don't know if this would or could be linked to the aggravation by the fumes and exhause of the Jet Fuel or not.

Is there any way in which his SC condition medically has 'aggravated' the cancer?

I don't know. I guess maybe it could with the right IMO Maybe?? Since his oncologist links both the cancers to Jet Fuel. I don't know if one [ blood cancer] might have caused the appendix cancer or am i trying to strech it too far in thinking??

I did a topic here available under the search feature for claims of "aggravation" for secondary service connection.

If a SC disability "aggravates" a NSC disability then the level of aggravation can be service connected as secondary.

Thanks again!!

I appreciate all your thoughts and help!!

Jessie