Is This Worth Filing An Nod?

[rodin57]

Okay, I'll be extra hard on myself. I filed a claim for tinnitus on 04-13-10. Today (10-07-11) I received the manilla colored envelope. The VA continued my other ratings, as well as my pay. The VA denied my claim for tinnitus, due to no mention in my medical records. However, when I filed my claim, I included a copy of my OER which specifically mentioned the incident (2,000 lb battery explosion) which was the main cause of my tinnitus. I was ignorant about the medical aspects of tinnitus in 1985- there was no internet back then- so I never went to the flight surgeon to complain about my tinnitus. I know, I was stupid.

The thing that bugs me is the VA seemed to ignore my OER as evidence. I am not inclined to file an NOD, since I have no other evidence. Any advice would be appreciated. Attached is a copy of the VA write-up for my denial.

(Also, for all my claims tracking fans out there, if I file an NOD should I start trying to track that too? - just kidding)

Edited October 7, 2011 by rodin57

[Berta]

If you can wait for the C & P exam results, it could help you shape the NOD.

Others might disagree with me but I view the NOD as the first line of attack.The first NOD I ever prepared was in 1988 for my husband.

About 8 months later his vet rep called us and said the VA had reversed their decision due to the NOD.

Since then I have had to file many NODs and I used the old 1988 NOD as my template.

NODs should be brief but they can state the medical and/or legal argument with the decision.

The first sentence should state that this is a formal Notice of Disagreement with your decision dated xxxxx for the following reasons.

Then tell the why they are wrong and refer them to any attachments that advance your argument.

In the 1988 NOD I wrote, I was so pissed off I stated common sense as well as medical fact.

After one semester of Voc Rehab and a few months of employment at the VA, the VA was proposing to drop my husband's 30$ SC to 10%.

Nothing medically indicated that VA therapy had somehow improved my husband's PTSD - as a matter of fact it had gotten worse due to the stressful VA job and college on top of that.I made that point in the NOD.The pressure he put on me to hurry up and fix this all caused me to throw in a bad word in the NOD-but I don't advise doing that,

Another statement I made was that one semester of Voc Rehab didnt turn him into a rocket scientist and besides,the VA gave him a part time S--t job, because they hired a relative for the full time VA Fire department job he was qualified for per OPM but he never got an interview and we made a stink with the VA director who gave him the crap job to appease him so he wouldnt file a EEOC complaint.I enclosed evidence of that.

With his Nuclear industry background, the crappy VA part time job was NOT "substantial gainful employment".38 USC. Since he had gone to Fire College, the other VA position would have been substantial gainful employment (although still much less than what he made in Nuclear Power industry)

I included the regs as to reductions due to what VA must prove to reduce.They had no basis or proof to warrant the proposed reducton.

This was all put on one main page of the NOD and I listed the attachments and he signed and got proof of mailing.

Other NODS I prepared for my claims immediately referred them to the evidence they had ignored and I enclosed it again.

As Carlie said an IMO enclosed with the NOD and referred to in the NOD as enclosed, can do wonders for this type of claim.

"The thing that bugs me is the VA seemed to ignore my OER as evidence"

They ignore evidence these days all the time. Refer to and attach 38 CFR 4.3 and 4.6 if you have to

and the M21-1MR link n this post:

I have referred to and attached 38 CFR 4.3,4.6 and the M21-1MR print out to numerous NODs to remind them of their own regulations that they must uphold.

Vet reps and SOs write often generic NODs. I feel let the battle begin in the NOD.

They reversed on a NOD I wrote for my daughter in 3 weeks and on one of mine as well that fast many years ago.

In most cases however they took over a year to even respond to my NODs.

[rodin57]

Thank you Berta. I will wait for the C&P results. Thank God for the internet! When I filed my first claim in 1988, I didn't know anyone else who ever filed a VA claim. I couldn't get (even bad) advice from anyone. I should have filed an NOD in 1989, but when I looked for any additional evidence, and found none on hand, I let it go. It's funny that 20+ years later I can find more evidence that I should have submitted with an NOD for my original claim. One reason I had no info was that we were in transit, and all my files were in long term storage. Another reason why my medical records were mostly empty was due to me not wanting to go to the flight surgeon and get DNIF'ed (duty not involving flying). Too many DNIFs was the kiss of death for a career. Okay, I'll quit babbling now. I appreciate any assistance I can get. Thanks all.

Edited October 10, 2011 by rodin57

[broncovet]

I agree with Berta that you should do a good job with the NOD. This is your chance to "make your case", so why would you want to let your adversary (the VA) prepare your case for you? Oh, yes, they will be glad to do this for you. I just dont think its in your best interest.

This being said, you dont always need new evidence to win with your NOD. If you have it, by all means submit it. One great example of this is when the VA did not read your old evidence and denied you. We all know that happens. Some people have resubmitted the old evidence and highlight it yellow, and probably draw crayon stick figure pictures for rating specialists who cant read.

In my first denial, the RO denied on the basis that it was "too long" since military service. I pointed out not only did I have an audiologists nexus (hearing loss is at least as likely as not due to noise exposure in military service) but that there is nothing in the rating criteria even remotely involving "length of time since service". Of course, the VA is required to rate by rating criteria, they are not supposed to be able to rate me based on the color of my shirt.

[Berta]

"In my first denial, the RO denied on the basis that it was "too long" since military service"

That is BS unless they can prove your post service employment gave you acoustical trauma exposure or they found out you worked post service with someone like Robert Plant. *

*Robert Plant lead singer Led Zepplin.