Nod Or Reconsideration

[pilgrim01]

I received a decision on March 16 2009 for my ankle of 10%. In my c-file the doctor stated that I had full ROM. The doctor did not do a test to find out if I had full ROM! I also filed a RECONSIDERATION for a issue I had with my back from that same report. That doctor also said I had full ROM and she didn't do a ROM test, either! My RECON for my back is currently at the Ready to Rate stage and I am awaiting a decision. I think I will be lowballed for my back. Well, my doctor ordered ROM tests and I had the appointment this morning. The doctor that did the ROM tests used the ROM tool and measured my back and ankle ROMs. I can pick up a copy of her notes tomorrow.

I want to know should I file a RECON for the ankle (before Mar 16, of course) and file a NOD for my back when the decision comes in? Do I file these together or separate? I know time is of the essence right now. Thank you.

[pilgrim01]

Listen to carlie, I did & got 100% shedular 100% & a large retro pay.

babyray

I do and I am. She is part of the reason why I am filing a NOD now. :o

[pilgrim01]

I like your NOD, it seems to have all that is necessary:

1. any communication expressing disagreement with said decision,

2. A desire to contest the result.

I would add my 2 cents worth, however:

1. Make sure you have addressed all the issues in the NOD even if those issues were not addressed by the decision. For example, if you applied for PTSD, AND the RO decision addressed your degenerative joint disease but did not say a word about your PTSD, include it in your NOD something like this:

"I have 2 issues that I disagree with:

1. My degenerative joint disease of the right ankle should be a higher rating of at least 30%.

2. My PTSD was not mentioned in the decision and I disagree with a "deemed denial" of my PTSD claim."

2. Make sure you mail your NOD Certified mail return receipt Requested because RO's are notorious at shredding your NOD then claiming they have no record of it. Keep a copy safe, maybe by emailing it to yourself.

3. If you have other issues pending, mention them in your NOD also. If any part of your evidence was not included in "reasons and bases" for decision, mention that, too.

4. Good luck, and hunker down for a long appeal.

Since I know that the doc said I had full ROM on my back should I include that, too, even though I don't have full ROM on my back? I haven't received my decision on it yet, but it is at the Rating Board. How would I say something about my back? The ROM I had on my back form the Mar 4th test said: FLEX: 0 - 20 deg, EXT: 0 - 10 deg, Sidebending R: 0 - 20 deg, Sidebending L: 0 - 20 deg, Rotation R: 0 - 15 deg and Rotation L: 0 - 30 deg. So, how would I include my back ROM in this NOD even though I haven't received a decision on it yet? I just saw in the copy of my c-file that the doc said I had full ROM when she didn't even do a ROM test!

[broncovet]

Pilgrim

There has been some discussion about "deemed denied" claims on this board. To sum it up, if the Veteran is seeking multiple benefits (hearing loss, PTSD, tinnitus, etc) and some of these are NOT addressed by a RO decision, the courts have ruled that the others are "deemed denied", that is you have gotten a denial on the other issues. While the "deemed denial" issue is highly controversial, the bottom line is the courts can, and have, "started the one year appeal clock" when an issue was not even mentioned! Then, the Va has said the one year appeal period expired, so the Veteran has to meet the CUE standard, and the bottom line is it is one of the VA's "bag of dirty tricks" we have to watch out for.

I call a deemed denial a "secret denial". Altho there are some cases which have weakened and delivered blows to this RO dirty trick, still it pays to be safe and NOD all the issues..even if the RO did not address them.

I would say it something like this:

NOD

I disagree with the decision dated Feb 14, 2010 for the following issues:

1. I disagree with the 10% rating on my foot, as I think it should be higher because..... and .... etc.

2. I also disagree with the possible "deemed denial" of my back condition, even tho this was not addressed in the Feb. 14, 2010 decision. Va regulations require that the VA consider all applicable evidence and claims before rendering a decision, and I am in dispute of any RO decision that fails to address all my issues as I am entltled to a RO decision, along with "reasons and Basis" for all claims submitted.

Signed,

Joe P. Veteran March 4, 2010

[pilgrim01]

Pilgrim

There has been some discussion about "deemed denied" claims on this board. To sum it up, if the Veteran is seeking multiple benefits (hearing loss, PTSD, tinnitus, etc) and some of these are NOT addressed by a RO decision, the courts have ruled that the others are "deemed denied", that is you have gotten a denial on the other issues. While the "deemed denial" issue is highly controversial, the bottom line is the courts can, and have, "started the one year appeal clock" when an issue was not even mentioned! Then, the Va has said the one year appeal period expired, so the Veteran has to meet the CUE standard, and the bottom line is it is one of the VA's "bag of dirty tricks" we have to watch out for.

I call a deemed denial a "secret denial". Altho there are some cases which have weakened and delivered blows to this RO dirty trick, still it pays to be safe and NOD all the issues..even if the RO did not address them.

I would say it something like this:

NOD

I disagree with the decision dated Feb 14, 2010 for the following issues:

1. I disagree with the 10% rating on my foot, as I think it should be higher because..... and .... etc.

2. I also disagree with the possible "deemed denial" of my back condition, even tho this was not addressed in the Feb. 14, 2010 decision. Va regulations require that the VA consider all applicable evidence and claims before rendering a decision, and I am in dispute of any RO decision that fails to address all my issues as I am entltled to a RO decision, along with "reasons and Basis" for all claims submitted.

Signed,

Joe P. Veteran March 4, 2010

Thanks, broncovet! So, I would say #2 above even though I have not even received the decision yet? I think I may get something, I just know that it will be a lowball. With the ROMs I mentioned below, my back should be at the 40 percentile. I know they aren't going to give me that. So, should I still word it as you mentioned?

Bottomline, I just want to know do I add my lumbar condition w/radiculopathy to the NOD even though I haven't received a decision yet? If so, how do I word it.

Edited March 8, 2010 by pilgrim01

[pilgrim01]

bump

I want to get this sent out by Thursday! :D

Edited March 8, 2010 by pilgrim01

[carlie]

Carlie,

Yes, I want to have another set of eyes look at it. I live a pretty good ways from the VARO. That is part of the reason, too. Why do you ask?

pilgrim,

I asked because I have found the majority of times a DRO De Novo Review

is almost a word for word decision, just like the decision that you filed

the NOD on.

Submitting some additional medical evidence will be of help

if the DRO bothers to acknowledge it's in the record by listing it as EVIDENCE

and weighing it in the adjudication review.

A personal hearing with a DRO usually takes longer to get - BUT -

then you actually have a face to face Hearing with the DRO to present

your claim issues and evidence.

jmho,

carlie