Nod Not Yet Under Review

[Ron II]

Situation

1. I filed a NOD that likely will be reviewed in March 2008 at the earliest.

2. The NOD petains to a heart condition where the VA rated at 10% METs. I was not given a stress test. I was assigned a METs level of 7 which equals 10%.

3. My one and only stress test, done more than 12 months prior to the filing of the claim, showed

my MEPs as 6.2 which equates to 20%.

4. My stress test with a private doctor has been moved up to December 26th. The results should be available in the first week of January 2008.

5. I intend to forward the results to the DRO as soon as they are received. I assume they will show MEPs of 6.2 or lower. In any case, I intend to forward the results.

Questions

If the earlier stress test results are deemed too old (i.e., more than 12 months) to substantiate a higher rating, could the new results be used during the NOD review as justification for a higher rating?

I ask this question since the new results would not have been in the file, so the term "notice of disagreement" seems inaccurate. Or...am I just too concerned about semantics?

[Berta]

"If the earlier stress test results are deemed too old (i.e., more than 12 months) to substantiate a higher rating, could the new results be used during the NOD review as justification for a higher rating?

I ask this question since the new results would not have been in the file, so the term "notice of disagreement" seems inaccurate. Or...am I just too concerned about semantics?"

I would -if I were you- print off the 21-4138 at the VA web site or just write them a letter when you get these new results and ask that they be properly considered when the VA decides your claim.

You could state that this attached medical information (copy of what you get)probatively supports your claim and is sent in addition to the NOD you filed on (date)to render a proper rating.

Make sure your c file # is on anything you send -I always use the name and address stickers I get from the DAV, PVA etc and put them on each page of anything I send too.

Edited December 21, 2007 by Berta

[rdawg]

you can submit evidence up until they review it. That's one benefit of a DRO review vs. withrawing the NOD and asking for a reconsideration based on the new evidence. With the DRO review they have to consider the claim based on evidence of record at the time of reviewing. You are allowed to submit new evidence since the last decision and they are not.

I never had a C&P and was denied twice at the RO level. I got an IMO from DR. Bash and submitted that while I was waiting for a DRO review. After waiting 10 mos I withdrew my NOD and asked for a reconsideration based on the new evidence. I ran the risk of them ordering a C&P and having a negetive opinion (their C&P is always against the vet) on record. If I waited for the DRO review they would have only had the favorable opinion to use.

It worked out. They rated my claim just on the examination and IMO by Dr. Bash and awarded me SC on all issues to the level I thought was fair.

[Ricky]

During the NOD process you can submit new evidence forever as long as the DRO has not issued a rating/SOC. However, if the new evidence is used to justify the increased rating they will more than likely use the date of the new evidence as the effective date of the award.

About the only way to get around this is if the doc that issues the new evidence states that your disability was the same as the current level (time of new evidence) when you first submitted the claim.

This is where the receipt of claim or when the date of entitlement arose rule comes into play.

Many vets complain about this alot. When they submit a new claimed issue and say hey my back has gotten worse without any evidence to support it. Then 18 months later the VA gets around to conducting a C&P and the examining doc says yep his back is worse. The date the evidence proves the increase in disability is the date of entitlement is the date medical evidence proves the disability has increased and not the date of receipt of claim.

In your case you have old evidence which does not provide proof of an increase in the disability and you will be submitting new and recent evidence which does provide proof of the increase. Therefore the date the entitlement arose (increased disability) is the date of the evidence.

This is why all veterans need to submitt some type of evidence when they ask for an increase. That way if the VA does hee haw around and make you wait forever for and exam then you at least have a leg to stand on when you argue the EED. Without evidence then you are just spitting into the wind. I know that this is a little off topic from your question but it is in the same arena and is the most misunderstood issued by veterans.

Good luck with your increase.

[john999]

Ricky

That is exactly what happened to me. I had a appeal for a higher rating from 30% in the system for about 3 years. Then I lost my job and applied for SSDI. When I got my rating decision the VA used the SSDI date because that is the evidence they used to rate me at 70%, or so they said. Three years of retro lost, but who is going to not submit evidence like SSDI? They did not even grant TDIU with the SSDI. I had to fight for that as well, but eventually got the ED same as SSDI date. I say send all your evidence and keep sending it. Retro is important but winning the claim is more important. My VARO is very stingey so you better have good evidence and lots of it to get a high rating.

[Ron II]

"If the earlier stress test results are deemed too old (i.e., more than 12 months) to substantiate a higher rating, could the new results be used during the NOD review as justification for a higher rating?

I ask this question since the new results would not have been in the file, so the term "notice of disagreement" seems inaccurate. Or...am I just too concerned about semantics?"

I would -if I were you- print off the 21-4138 at the VA web site or just write them a letter when you get these new results and ask that they be properly considered when the VA decides your claim.

You could state that this attached medical information (copy of what you get)probatively supports your claim and is sent in addition to the NOD you filed on (date)to render a proper rating.

Make sure your c file # is on anything you send -I always use the name and address stickers I get from the DAV, PVA etc and put them on each page of anything I send too.

Thank you; I will follow your sound advise. I completed my stress test (nuclear) today and should have the results by Friday or Monday.

[Ron II]

Re: "In your case you have old evidence which does not provide proof of an increase in the disability and you will be submitting new and recent evidence which does provide proof of the increase. Therefore the date the entitlement arose (increased disability) is the date of the evidence." per Ricky

I kind of thought so since my old evidence did not occur within 12 months prior to the rating. Thank you for the information.

Cheers!