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]

File your NOD ASAP - submit copies only.

If you live close enough to your VARO then hand deliver it

and get a date stamped copy.

If you want a hearing with a DRO - put that request in your NOD.

You are down to the wire now.

jmho,

carlie

Will do. Thanks, carlie. I gave my VSO a heads up.

[pilgrim01]

If I read your post right, you have already filed an reconsideration for your back but not for your ankle? Am thinking on this.

You are correct, cowgirl. I filed a RECON for my back. I just found out how the doc put down that I had full ROM in my ankle when I got my c-file. So, should I file a RECON or a NOD for my ankle?

[carlie]

I just found out how the doc put down that I had full ROM in my ankle when I got my c-file.

pilgrim,

VA is supposed to accept whatever the doc writes - even if it is wrong.

The only way to combat this is with another examination

and opinion from another doctor or specialist to sway the BOD

towards a grant of the claim.

jmho,

carlie

[pilgrim01]

I just got my ROMs for my ankle from the doctor. Here they are:

RIGHT ANKLE ROM:

DORSIFLEXION: 0 - 5 DEG

PLANTAR FLEXION: 0 - 45 DEG

INVERSION: 0 - 20 DEG

EVERSION: 0 - 10 DEG

I really can't read the CFR correctly. I don't know what the rating should be. If I am reading it correctly, I should be at 30%?

So, with that, can someone please proof read my NOD that I am going to submit for my ankle? Of course this will be on a 21-4138. Thanks, all!

================================================================================

============

Department of Veterans Affairs

VA Regional Office

210 Franklin Road

Roanoke, VA 24011

Dear VARO,

1. I received a rating decision dated March 16, 2009 for Degenerative Joint Disease, Right Ankle. Consider this letter to be an official “Notice of Disagreement” (NOD) regarding the following decision. I am requesting a DE NOVO review by a new Decision Review Officer. I wish that the new Decision Review Officer use Sec 4.3 Resolution of reasonable doubt. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.

2. My Degenerative Joint Disease, Right Ankle had a 10% service connection rating assigned, but my Range of Motion (ROM) was not taken into consideration. A few key pieces of information were not mentioned. During my C & P Exam, a ROM test WAS NOT conducted, yet results of one being conducted was annotated in my C & P Exam results. There were three separate ROM tests conducted and annotated in my service medical records (SMR) prior to this service connection decision (results attached). The results were: 0 - 5 degrees for DF (dorsiflexion) and 30 degrees for PF (plantar flexion) conducted on 27 Jul 2006, 0 degrees DF and 50 degrees PF conducted on 3 Aug 2006 and 5 degrees DF and 60 degrees PF conducted on 5 Sep 2006. I also had another ROM test conducted on 4 Mar 2010 and the results were (also attached): DF: 0 – 5 degrees and PF: 0 – 45 degrees. In accordance with 38 C.F.R. part 4, I believe that the rating of DX code 5270 (In plantar flexion, between 30° and 40°, or in dorsiflexion, between 0° and 10°) should be applied and my rating should be increased to 30% for Degenerative Joint Disease, Right Ankle.

3. I have no other records other than the ones you already have in my c-file and the Range of Motion test conducted on 4 Mar 2010 (attached). Please expedite this claim.

4. I can be reached at work at (xxx) xxx-xxxx or (xxx) xxx-xxxx cell. Thank you for your time and consideration in this matter.

v/r

pilgrim01

[carlie]

pilgrim,

Once SC has been established the percentage of disability

is based on the most current medical findings of residual

disability.

jmho,

carlie

[broncovet]

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.