I've Never Gone Thru The Nod/appeal Process

[Rockhound]

I know I need to file a Notice of Disagreement, but have never done this before, since like a dummy in the past, I never went any further with my claims. But now is different and I plan to appeal as long as it takes, even to the Court if I have too.

I have three issues I wish to appeal, (1) two small painful scars at 10%, (2) Chronic Sinusitis, (3) Chronic Non-Allergic Rhinitis, all secondary to a SC Nasal Fracture and Deviated Septum due to Trauma.

I do plan to seek an IME and IMO for these conditions from a private ENT specialist, in the hopes they will be able to provide the evidence I need to rebut the VA's opinion.

Must I make my intentions to NOD the decision within a time frame other than the year in which I can appeal their decision? When should I, If I decide to ask for a DRO, make my desire known to the VARO?

They gave me written notice on what I can do if I disagree with their decision, but since I have never gone this far with my claim, it's a bit of unknown territory for me and a bit daunting/scary for me as well. I don't take disappointments very well and I am a day and a half without my meds, since I stayed in town to make it to a next day appointment to see my PCP on an un-related issue that I thought I would have to wait a month or so to get. Getting the next day was a god send from from the great spirit that looks over me, so I jumped at the chance to see my PCP so soon.

It does nothing for how I feel like a heal to my cat Tom and kitten Tammi that I had to leave them to fend for themselves for this long, even though I make sure that when I do into town they have plenty of food and water for a few days, just in case of things like this coming up. This will be Tammi's first time this long without my super vision, but Tom being an indoor/outdoor cat has had this forced upon him a couple of times in the past.

Well it's time for me to check in at the VAHC for my morning appointment, so I am off probably till I get home tonight, so please make your suggestions and experiences known so I can make my plans for the next step in the Claims process.

Oh yea, should I wait until this NOD or appeal is done before submitting another claim I have been working for some time to get the evidence I needed and it appears I have it now, but I am pretty sure this claim will take some time due to the issues at hand?

Rockhound Rider

[Shark]

You have one year to file the NOD, but the sooner you file it the faster your appeal gets worked on. I would always ask for a DRO review or hearing as it is quicker if you can resolve it at the RO. You may want to check into getting an attorney, the one I have, Mark Lippman at the Veterans Law Center will up front the IMO costs if he takes your case.

Good luck!

[Berta]

"Must I make my intentions to NOD the decision within a time frame other than the year in which I can appeal their decision? When should I, If I decide to ask for a DRO, make my desire known to the VARO?"

The VA will send you a DRO election form-but it is the NOD that will trigger that.

The NOD MUST be filed within the first year after the decision.

It might take them a year to read it but still the very first thing they do is check the date the NOD was filed.

If not wihin that year period-they do not have to do anything at all further with the claim as the appellate period is gone.

What would be great for you Rockhound is if you could prepare the NOD with argument to rebutt the denial and refer them to the attached IMO- that is if you can obtain an IMO that helps your claim-and can send it with the NOD-

it would be great.

Then again if you can get a favorable IMO prior to NOD year-you could ask them to reconsider the denial based on the IMO. A reconsideration request does not stop the NOD clock but could possibly save some time-

possibly- if the evidence with the request is very probative.

Recon Requests are tricky-

I waited until I had only one week left to file a NOD on a prior VA decision.

They did respond to the reconsideration request prior to that date but failed to mention or consider the legal evidence I sent (it was CUE claim so all my evidence had to be legal evidence)

I am sure they would have jumped for joy if I had allowed that year NOD period to just slip by but I had marked my calendar.This claim has been at the VARO for 5 years and they wanted to send it to the BVA but the recent award I got on another claim has rendered it moot.

I cannot withdraw the claim however until they correct the erroneous award letter I got.I have received more letters from COngressman Filner and James Terry Chair of the BVA and yesterday I responded to them that I still await the proper award letter from the RO as the one I got was legally incorrect and did not even consider what the BVA award was for.

My long point here is that I had to send them legal evidence to support the request for reconsideration.No problem there ,I had plenty and it all came from the VA itself (M21-1 ,38 CFR and OGC Pres ops)but then they failed to consider it and completely altered the basis of the CUE claim.

Like a dope I should have asked for a Reconsideration for my AO death claim with the IMOs I got-but I thought they would actually read my evidence and they didnt-at the RO level.This could have shaved off some of the 6 years that decision took. maybe

Once you file the NOD you can hire an attorney to help you and they would be paid from the retro.

The NOD is the very first avenue of attack to a denial and it should be prepared not in great length but stating exactly why you feel their decision was wrong.

If the RO committed any VCAA errors you are aware of- this should be raised in the NOD.

If they ignored evidence, tell them that-if they listed evidence in the SOC but then failed to consider it, tell them that.

As long as the NOD is filed within the year filing period, more evidence can still be sent in at all time.

When a vet rep writes a generic NOD that simply says the vetern disagrees with the decision dated ----they are missing the best opportunity right away to rebutt the decision.

The I-9 BVA form says Tell us why you feel the decision is wrong so in my opinion this is what the basis of a NOD should be too.

At some point it becomes difficult for the VA to ignore a strong IMO-sometimes they consider IMos right off the bat.

I feel an IMO is the only way that you can resolve these issues.

Rockhound when I succeeded in FTCA and 1151 without IMOs (I never even considered getting one years ago)

that was when the VA was taking moe time to actually read our evidence. But still it took them 3 years in my case to do that and I had to prove I was a competent layperson in addressing medical issues.

These days that is such a high bar to overcome that a strong IMO -although costly- certainly can relieve a claimant of doing the medical work and research to such a level that the VA will actually accept what they present as competent lay evidence.

Competent lay medical evidence CAN award a claim-but the time and toll of the research as well as the potential denials due to being told the lay evidence isnt from a medical professional often makes the cost of an IMO worth the money.

When I got my first IMO the doc asked me point blank if I myself had full confidence in my evidence (this was before he saw it)

I answered I sure did.

I had no doubt that the IMO would be worth the cost.

But then again we take a chance on IM0s because we really cannot determine what the doc will say until they see the evidence.

But even with 3 supporting IMos under my belt at the BVA there were days where I wondered if I was just nuts and my claim had no basis at all. The VA makes us question our own thinking.

[Rockhound]

Thank you Berta! This helps relieve some anxiety I am experiencing on this subject. I do have a question about compitant layman evidence. I was a Hospital Corpsman in the Navy having attained the rank of E-4/Third Class Corpsman. I spent a short period of time as the junior medical officer aboard a small class DD/Destroyer. I was personally in charge of sick call for the Enlisted personel aboard the ship, diagnosing and perscribing medication and keeping medical records that the VARO would consider after service on their claims, when considering if some injury or illness occured while in service. Most of what I had to deal with were similiar problems I have currently with sinusis and or rhinitis, even ear infections, colds, flu like problems and such injuries that you would normally see aboard ship. I even had cause to diagnose a case of viral hepatitus and placing the ship on quarintine until it was lifted by higher authority. one enjury that involved an open fracture brain injury, and eye problems associated with the cleaning of the boiler tubes where personel had to go inside to scrape the sides of the boiler tubes of reosalt like residue that when it mixed with sweat, caused eye irritation and burning which required further evaluation by eye specialist.

After service I went to school to become a EMT II and delivered two babies while undergoing training with my name being written on the cirtificates of birth as the person having facilitated the births. I work as an aid on a stroke unit for a short period and worked a nursing home as well for a temp agency along with private duty for home care aiding a registered nurse.

I am not your tipicle layperson, I understand and can read medical reports and what I do not understand, can access the information that will clear up those deficencies. I have read quite a few different papers on the differential diagnoses and caused for chronic sinusits and rhinitis and can see that it is just as likely as not that any fracture of the nose that causes a deviated septum and that issue is found to be due to such trauma, can be just as likely as not, the cause for a chronic sinusitis or rhinitis condition.

I saw my PCP who wanted to help but she felt I would be better served seeing an ENT specialist and was given a name of one who I could make an enquiry with for a IME/IMO, but their is no guarenty she will assist me in my claim. But that doesn't shut the door on me looking for someone who will. Plus the VA C&P Examiner I thought to be a Dr. turns out to be once again, a Nurse Practitioner. I was led to believe she was a DR. which I find very unethical a best.

I have a lot to do in the following days, I just hope I can make good on all that I need.

Thanks once again for replying, I know you a very busy person of knowledge, I am lifted up that you have been able to take the time once again out of your busy life to help a veteran in need, if only for assurances that I am following the right path on my claim.

I would ask, on my claim for a TBI and residuals that I have been gathering evidence, should I go ahead and submit this claim or should I pospone it for a time, until I get this current claim taken as far as I can? I worry that by submitting another claim, that it will further delay this current one, but waiting will also delay action on this one yet to be submitted.

Rockhound Rider

[etihwr]

If your going to do your own NOD, you can write it like this:

I wish to file a notice of disagreement with the rating decision dated (MM/DD/YYYY).

I wish to appeal the following issues:

(List the issues by the number they were listed by the DVA and what percentage they rated your for or if denied, list that)

Ex:

1. Sleep Apnea, currently rated at 30% disabling,

5. Bilateral Hearing Loss, currently rated at 10% disabiling,

10. Headaches, currently denied.

I wish to have a Decision Review Officer (DRO) adjudicate my appeal.

In support of my claim, I am providing several 21-4142's. These records will describe the nature and severity of my issues. When not going to the doctor, I have been using conservative measures (to include over-the-counter medications, heat, exercise and when necessary - ice).

I wish to elect to have (either no hearing, a hearing - in person, or a telephonic hearing).

If necessary, I am available for an examination for rating purposes. Your attention to this matter is appreciated.

******************************************************

Having done several hundred of these claims, this is a generic appeal. Though the fax number I'm providing is for the regional Office in Roanoke Virginia, once the appeal has been sent in (keep the fax receipt to prove you faxed it in on a timely basis), you will have perfected your appeal. You can fax it to (540) 597-1792. I hope this helps.

You have one year to file the NOD, but the sooner you file it the faster your appeal gets worked on. I would always ask for a DRO review or hearing as it is quicker if you can resolve it at the RO. You may want to check into getting an attorney, the one I have, Mark Lippman at the Veterans Law Center will up front the IMO costs if he takes your case.

Good luck!

[Berta]

Rockhound- I would file the TBI residual claim -if I were you and send it in with the NOD-but then again- hope others advise here- it could compound the issue the NOD will be on-maybe best to wait on the TBI matter ???

I think I saw this TBI claim as in relationship to the disabilities you are trying to service connect at a proper rating.

I know you have a very good medical background.I think VA should take that into consideration.

Rockhound, when I got a PA opining on my AO death claim- I was furious and took the results of the C & P apart medically piece by piece.I sent my statement and supporting evidence right to the BVA in March and in April they awarded.

But they also had my 3 IMOs too which I supported as well with corroborating medical evidence and treatises etc.

This is my point here for you--

I reminded the VA -with my final submission knocking down the PA- (the IMO I ordered and paid for to do that from a real cardiologist had not been prepared yet and I feared that all of sudden after 6 years maybe the older IMOs were again missing from the file the BVA got--)I reminded VA that I successfully won FTCA and Sec 1151 death when I re-opened my dead husband's 1151 claim ( his own words in that claim predicted his death by VA) and that my background in diabetes and cardiology,neurology as a competent lay person -which I had to develop solely to prove my husband's own words-and VA negligence-fully outweighed-obviously- many VA doctors who opined against both the FTCA and 1151 claims over the years -until they actually read the medical evidence.

I also reminded the BVA how I knocked down -along with one IMO- the initial VA examiner-in ways the IMO did not cover-

a point the BVA decision mentioned.

I then went over point by point why the most recent opinion was medically wrong.I also added a prime piece of medical evidence I had just discovered (like a dope) after 14 years-it was right there and like a dope I failed to look up one medical word in the recs.

Bingo- prime facie evidence of my claim-

how could I be so stupid-&^%$#

I think anyone who has obtained competent knowledge in the field of medicine in any way-through education, MOS ,or even through the claims process itself should make this point that they are competent enough to submit lay evidence that is supported by literature in the standand medical community.

Still Rockhound- this becomes an easy way out for VA to deny a claim.

And a strong IMO alleviates the misery of the kind of medical stuff we have to research.

BUT- many claims are won without IMOs -that is a fact-

and I think my AO death claim could have solely rested on the medical evidence- and have been awarded without the costly IMOs.

The IMos said the same things I was telling them-but there is no Dr. before my name.

I always read your posts Rockhound- but only comment once in a while because-as many here agree- an IMO might be the only answer for you.

This does not reflect at all on all the work you have done for your claim------

it is just the way it is these days-

but it pays to let them know you feel you are a competent lay person and that your medical assessments should be given proper weight.

The VA put mountains before me.

They killed the veteran claimant with piss poor care.

Hours before his death Rod wanted my assurance I would pursue his 2 claims if he died.

The mountains became MT Everest before they became mere hills-

Medical evidence is everything.

Everything.

And you are competent - with your background to remind them

that your lay testimony involving the medical evidence- has merit.

I was denied many many times for many issues I had before the VA.I know how upsetting it is for you and for any vet who gets a denial.

But persistence and medical evidence sure pays off.

And an IMO can make that so much easier.

[john999]

I agree that once you file the NOD get a lawyer. They take the case on contingency. You can judge your chances by how eager they are to take it. Otherwise, you can fight it out on your own. NOD is the first step in appeals as you know and the most important step.