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

[free_spirit_etc]

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.

New and Material (evidence)

Reasons and Bases (for the decision)

[SSGmajik]

New and Material (evidence)

Reasons and Bases (for the decision)

Thanks for letting me know!

[free_spirit_etc]

There is an interesting thread about C&P exams.

Wing's post #3 also shows part of a BVA decision where the Board found

:

"Given the fatal deficiency in the March 2008 examination report, as well as the inadequacy of the January 2008 examination report, there was no evidentiary basis to conclude that the Veteran's hearing loss had improved. 38 C.F.R. § 3.344©. There was no other evidence on file at the time of the reduction that suggested any improvement in the disorder. Consequently, there was no basis for the reduction, and the 20 percent rating is restored, effective from the date of the reduction."

[fiasco007]

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!

How can they just randomly lower your rating like that? I have heard the horror stories but I am yet to experience it myself 1st hand. I have also heard people talk about not submitting a claim cause they might lower their overall rating. Is there that many mistakes and random variables in any one person's record that upon closer examination, they could find XYZ reasons to lower your rating?

Maybe i just dont "Get it" can someone explain?

[SSGmajik]

There is an interesting thread about C&P exams.

Wing's post #3 also shows part of a BVA decision where the Board found

:

"Given the fatal deficiency in the March 2008 examination report, as well as the inadequacy of the January 2008 examination report, there was no evidentiary basis to conclude that the Veteran's hearing loss had improved. 38 C.F.R. § 3.344©. There was no other evidence on file at the time of the reduction that suggested any improvement in the disorder. Consequently, there was no basis for the reduction, and the 20 percent rating is restored, effective from the date of the reduction."

Wow! At least they admitted their mistake, but to put the veteran through all this trouble is ridiculous! It's unfair that we have to prove their mistake, but they can lower our rating or state our condition is improving without proof!

[SSGmajik]

How can they just randomly lower your rating like that? I have heard the horror stories but I am yet to experience it myself 1st hand. I have also heard people talk about not submitting a claim cause they might lower their overall rating. Is there that many mistakes and random variables in any one person's record that upon closer examination, they could find XYZ reasons to lower your rating?

Maybe i just dont "Get it" can someone explain?

They simply went by my C&P examiner who apparently was disgruntled! He pretty much made up my whole C&P exam! All my medical evidence shows my back condition is deteriorating & will not improve, but only get worse! I was even approved for a medical retirement from government job right before I filed my claim! They do what they want & hope you just don't fight it, but if you do you have to prove them wrong!