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

[SSGmajik]

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,

Again, thank you! I think I'll just wait and file it as a new claim after they close out my NOD and TDIU. Like you said, they get confused and I don't want them to get this NOD wrong!