Notice Of Disagreement?

[SSGmajik]

I wanted to get some thoughts on how I should approach my disagreement with the VA's decision on my rating. I filed 10/2010 for TDIU. I received a rating decision in 04/2012 and my TDIU was deferred. All ratings below are all service connected.

In my rating decision for both my neck and lower back were lowered, because of the C&P doctor statement from my exam in 11/2010. My lower back was lowered from 40% to 20%, because C&P examiner said I had a forward flexion of 60 degrees, but he did not even do a ROM exam! Also, in 03/2010 my Neurosurgeon did a ROM exam a said I was limited to 10 degrees due to increased pain! Again, C&P examiner said that he did a ROM and I performed all movements and he stated "Physical examined revealed no objective evidence of painful motion, spasms, or weakness". I'm in constant pain and have a lot of spasms, especially when being put through a ROM exam, and my sciatic nerve is damaged and causes weakness in my right leg! All documented in my medical file. I am also on strong pain medication! My neurosurgeon also stated in his notes that my condition will only deteriorate and get worse. The VA has all this documentation as well.

Same exact scenario happened with my neck. No ROM exam, but C&P examiner put same BS as above and said I had a forward flexion of 35 degrees and it lowered my neck from 20% to 10%.

So, last week I saw a physical therapist at the VA who performed a ROM exam with a goniometer by request from my PCP. He measured each movement 3 times. Relevant measurements were on average, Lumbar Flexion 11 degrees, and cervical flexion 29 degrees. According to the CFR 38 part 4.71a my lumbar should have stayed at 40% as well as my neck at 20%.

I'm not sure what to do from here. I saw my VSO and he showed me my TDIU claim has not even been looked at since a rating decision was made in April. Plus, he thought it was unusual for a claim to be this old and complex that there was only 6 notes in the system on my claim.

Should I file a notice of disagreement now and add this new ROM as new evidence and ask why the ROM performed by my neurosurgeon in 03/2010 was overruled by the C&P examiner?

What other proof due I need that shows that the C&P examiner lied or to discredit him?

Does anyone have a good format for a Notice Of Disagreement letter?

Any help, info, & opinions is always appreciated!

Thanks,

SSGmajik

[71M10]

SSGMajik,

Do you have the exams? My experience has been that those doctors that are to lazy to do the exam right are also to lazy to falsify it right also. If they don't list three measurments in the exam notes, immediately send a request to have the exam thrown out since it was not completed correctly. I tried to find it in the CFR but can't quite lay my hands on it, but after a certain period of time, a rating cannot be reduced on the results of just one examination(other members help us out with the citation please). Did they list these other medical documents in the decision as evidence? If they didn't (and VA had them) I would indicate in my NOD that the C&P examiner conducted no range of notion testing and this is supported by progress notes by Dr. X on Y date. Are you rated for the neurological deficits/problems casued by your back? If they haven't, ask for a rating for that in your NOD per the footnotes on "Ratings of the Spine".

Best of Luck!

[SSGmajik]

SSGMajik,

Do you have the exams? My experience has been that those doctors that are to lazy to do the exam right are also to lazy to falsify it right also. If they don't list three measurments in the exam notes, immediately send a request to have the exam thrown out since it was not completed correctly. I tried to find it in the CFR but can't quite lay my hands on it, but after a certain period of time, a rating cannot be reduced on the results of just one examination(other members help us out with the citation please). Did they list these other medical documents in the decision as evidence? If they didn't (and VA had them) I would indicate in my NOD that the C&P examiner conducted no range of notion testing and this is supported by progress notes by Dr. X on Y date. Are you rated for the neurological deficits/problems casued by your back? If they haven't, ask for a rating for that in your NOD per the footnotes on "Ratings of the Spine".

Best of Luck!

Thank you 71M10! The VA only used the C&P examiner's measurements and did not even say anything about my neurosurgeons measurements. I do have a copy of the C&P exam and the examiner did not state that he measured each movement 3 times. I got a copy of it 2 months after the exam and sent a letter to the VA asking for a new one stating that a ROM was never performed. The VA does have my Neurosurgeon documentation, but did not list it as evidence in my rating decision. Any advice on how I should word and format a NOD? Currently my total rating is.....

Depression- 50%

Lumbar- 20% (Was 40%)

Neck- 10% (Was 20%)

Radiculopathy/nerve damage- 10%

Residuals, Surgical Scar- 0% (Was 10%) C&P examiner also lied on this one too. Never touched my scar, which it has scar tissue attached to my nerve and burns & stings when touched!

[jvretiredvet]

but after a certain period of time, a rating cannot be reduced on the results of just one examination If a particular evaluation has been held for less than 5 years, a proposal to reduce can be made strictly on the basis of one examination or set of evidence ( 38 CFR 3.444© http://www.benefits....ART3/S3_344.DOC ) . However, Revision of Decisions, specifically 38 CFR 3.105(e) http://www.benefits....ART3/S3_105.DOC would appear to be valid as well.

If a particular evaluation has been held for 5 years or more, it isn't appropriate to propose to reduce on a single examination or set of evidence.

Readers, please do not confuse this with the 10 & 20 year rules.

SSGMajik,

Do you have the exams? My experience has been that those doctors that are to lazy to do the exam right are also to lazy to falsify it right also. If they don't list three measurments in the exam notes, immediately send a request to have the exam thrown out since it was not completed correctly. I tried to find it in the CFR but can't quite lay my hands on it, but after a certain period of time, a rating cannot be reduced on the results of just one examination(other members help us out with the citation please). Did they list these other medical documents in the decision as evidence? If they didn't (and VA had them) I would indicate in my NOD that the C&P examiner conducted no range of notion testing and this is supported by progress notes by Dr. X on Y date. Are you rated for the neurological deficits/problems casued by your back? If they haven't, ask for a rating for that in your NOD per the footnotes on "Ratings of the Spine".

Best of Luck!

[SSGmajik]

but after a certain period of time, a rating cannot be reduced on the results of just one examination If a particular evaluation has been held for less than 5 years, a proposal to reduce can be made strictly on the basis of one examination or set of evidence ( 38 CFR 3.444© http://www.benefits....ART3/S3_344.DOC ) . However, Revision of Decisions, specifically 38 CFR 3.105(e) http://www.benefits....ART3/S3_105.DOC would appear to be valid as well.

If a particular evaluation has been held for 5 years or more, it isn't appropriate to propose to reduce on a single examination or set of evidence.

Readers, please do not confuse this with the 10 & 20 year rules.

Thank you for the info, I will look into these.

[carlie]

The VA does have my Neurosurgeon documentation, but did not list it as evidence in my rating decision.

Any advice on how I should word and format a NOD?

If your Neuro's documentation was current and YOU submitted it or provided

a ROI for it - it should be shown in the evidence section and addressed somewhat

in the R&B section.

If it is not and it can be used as a basic reopen like N&M and factored in.

It's not exactly a reopen in our understanding but that is how VBA will classify it.

JMHO

[SSGmajik]

If your Neuro's documentation was current and YOU submitted it or provided

a ROI for it - it should be shown in the evidence section and addressed somewhat

in the R&B section.

If it is not and it can be used as a basic reopen like N&M and factored in.

It's not exactly a reopen in our understanding but that is how VBA will classify it.

JMHO

Thank you Carlie! The evidence was current and was submitted with my claim in 10/2010 & an ROI was as well. They did not have it listed in the evidence page in the rating notification letter nor was it mentioned in their reasoning for lowering it. They only stated evidence from the C&P exam. Is there a form I need to send to reopen my claim with this evidence?

Sorry, but I do not know what R&B or N&M stands for.