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

[iraqx2]

An NOD is just like a formal " business" letter format. Make the headers, date, to and from, topic, and title, etc.

Explain it, simple and to the point what your disagreement is. Most importantly, why. Send it to the VA and they will send ( or should ) send you an acknoledgement letter that you have filed a dissagreement. From there, they will ask for more information and evidence. Send it to them and keep track of everything. Make new appointments for your disabilities, be on their radar, always. The ball is in their court now.

Please also keep in mind that the NOD will also serve as a " bridge " for retro pay.

Good luck

[Berta]

SSGmajic stated

"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...." etc.

You are right- they hope we do not question their decisions at all.

Was the med retirement from the fed job for the same SC conditions? If so does VA know that?

I know a local vet who was given 10% by VA but retired from the VA ,his employer,medically for the same condition.And also gets SSDI solely for the same condition from what he told me .I think FERS disability requiores application to SSDI too.

I gave him the TDIU form, urging him to see the rep who handled his 10% (which he never appealed.)

That was 4-5 years ago.

His philosophy, he stopped by the other day, is since there is such a backlog of claims he will wait until all that calms down and then file the TDIU form so it will go faster and he wont have to wait so long for a decision.

I have given up trying to explain he might well be losing TDIU comp at 100% rate every month he procrastinates.

You claim sounds similiar as to the Federal disability but you sound definitely Proactive!!!- and I suggest not only to file the NOD but refer in the NOD to an attached TDIU form and then fill out,copy and mail the 21-8940 form available here at hadit.

We have suggestions here as to how to prepare the form.

"The VA does have my Neurosurgeon documentation, but did not list it as evidence in my rating decision." That point should definitely be made in the NOD. and that this neuro documentation was more accurate and explicit in detail than the C & P exam was as to the extent of that specific condition.

Is this a VA neuro or a private Neuro- and if private would they possibly prepare an IMO for you at a low fee if you need one?

Edited July 25, 2012 by Berta

[SSGmajik]

An NOD is just like a formal " business" letter format. Make the headers, date, to and from, topic, and title, etc.

Explain it, simple and to the point what your disagreement is. Most importantly, why. Send it to the VA and they will send ( or should ) send you an acknoledgement letter that you have filed a dissagreement. From there, they will ask for more information and evidence. Send it to them and keep track of everything. Make new appointments for your disabilities, be on their radar, always. The ball is in their court now.

Please also keep in mind that the NOD will also serve as a " bridge " for retro pay.

Good luck

Thank you for the advice, I greatly appreciate it! I'm going to get started on the letter!

[SSGmajik]

SSGmajic stated

"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...." etc.

You are right- they hope we do not question their decisions at all.

Was the med retirement from the fed job for the same SC conditions? If so does VA know that?

I know a local vet who was given 10% by VA but retired from the VA ,his employer,medically for the same condition.And also gets SSDI solely for the same condition from what he told me .I think FERS disability requiores application to SSDI too.

I gave him the TDIU form, urging him to see the rep who handled his 10% (which he never appealed.)

That was 4-5 years ago.

His philosophy, he stopped by the other day, is since there is such a backlog of claims he will wait until all that calms down and then file the TDIU form so it will go faster and he wont have to wait so long for a decision.

I have given up trying to explain he might well be losing TDIU comp at 100% rate every month he procrastinates.

You claim sounds similiar as to the Federal disability but you sound definitely Proactive!!!- and I suggest not only to file the NOD but refer in the NOD to an attached TDIU form and then fill out,copy and mail the 21-8940 form available here at hadit.

We have suggestions here as to how to prepare the form.

"The VA does have my Neurosurgeon documentation, but did not list it as evidence in my rating decision." That point should definitely be made in the NOD. and that this neuro documentation was more accurate and explicit in detail than the C & P exam was as to the extent of that specific condition.

Is this a VA neuro or a private Neuro- and if private would they possibly prepare an IMO for you at a low fee if you need one?

First, thank you for your help Berta!

Yes, my OPM medical retirement was do to my service connected conditions and the VA has my award letter from OPM and what conditions were used for my approval.

I already applied for TDIU in 10/2010, but they tried to increase my disabilities first. They deferred my TDIU and my VSO showed the note that the rater stated that my TDIU was deferred, because the C&P examiners results conflict with my medical documentation. Which I'm happy they noticed something was wrong with my C&P, but they apparently did not look at it for my rating!

My Neurosurgeon is a private dr and he wrote an IMO that I sent in with my initial claim, but again I don't think they truly cared. They did list it as evidence in my rating decision letter.

One thing I've slacked on is applying for SSDI. I need to apply, but I have a hard enough time keeping up with all my VA stuff, but I really need to get going on it though!

Yeah, that Vet needs to apply for TDIU now and not wait. Like you said he's losing money each month. Maybe he needs to work he can file it with a financial hardship which should expedite his claim anyway!

Thanks again for your help!

[SSGmajik]

I wanted to also ask if anyone would know if I should add some new conditions with my notice of disagreement or if I should wait and file a new claim after they decide my TDIU? I was diagnosed with GERD do to medications I'm on for my service connected condition and stress. I also developed an endocrine disorder that caused me to lose 50 pounds in 3 months and another 20 pounds in 6 months. That was over 4 years ago, but the endocrinologist has just recently related it to my pain medication for my back (service connected). Also with this endocrine disorder I developed gynecomastia in both sides.

Does anyone know where these would fall in the CFR 38 part 4? The endocrine disorder does not have a name, just states endocrine disorder in my medical file. I just feel like I'm falling apart!!!!!!!

[71M10]

Anything listed in a NOD that was not part of the claim that was decided is SUPPOSED to be set up as an additional claim. It won't be catastrophic to your NOD if you plan on going the DRO route, but it will prevent any transfer to BVA until the other new claims have been decided.

My experience has been that the VA gets horribly confused, doesn't do what they are supposed to when you present them with two things at once!

Best regards,