cervical strain My Sample Nod......thoughts?

[SSGmajik]

Here is a sample of my NOD letter. Obviously I took out my personal info, but I just want to get thoughts on if this letter is good or I should change it.

Thank You,

SSGmajik

NAME

VA File Number XXXXXXXXX

Notice Of Disagreement on Claim Filed XX/XX/XXXX Rating decision on XX/XX/XXXX

WHAT: I, (name), am writing this letter as a notice of disagreement to the rating decision I received on XX/XX/XXXX. My TDIU claim was filed XX/XX/XXXX and I received a rating decision for this claim on XX/XX/XXXX and currently my TDIU has been deferred. I am providing medical evidence that shows that the C&P that was performed on XX/XX/XXXX contains errors. I am asking that the enclosed medical evidence and documentations to be reviewed and used to reevaluate my rating and my TDIU deferred claim.

WHAT: I disagree with the decision in lowering my L4-L5 disc herniation status post microdiscectomy with residuals, lowering it from 40% to 20% for the following reasons:

WHY: On XX/XX/XXXX a range of motion was performed at XXXXXX Spine Center (enclosed & on file) and it states that my lumbar forward flexion was 10 degrees. Also, I was recently examined by a physical therapist at the VAMC in XXXXXXX on XX/XX/XXXX and a range of motion test was performed (enclosed). Each movement was measured 3 times using a goniometer and the average for each was: lumbar flexion was 11 degrees: lumbar extension 7 degrees: L lateral flexion 9 degrees: R lateral flexion 10 degrees. With these results, according to 38 C.F.R. § 4.71a, it warrants a rating of 40%.

• With the above range of motion results provides evidence to my statement that the C&P range of motion exam on XX/XX/XXXX was incorrect and did not follow the "repetitive-use testing" that must be used in the exam; which was not stated in the exam or the notification letter. Also, a goniometer was not used and according to 38 C.F.R. § 4.46 Accurate Measurements, one must be used.
  

WHAT: I disagree with the decision in lowering my cervical strain with degenerative changes, lowering it from 20% to 10% for the following reasons:

WHY: Recently was examined by physical therapist at the VAMC in XXXXXXX on XX/XX/XXXX and a range of motion test was performed (enclosed). Each movement was measured 3 times using a goniometer and the average for each was: cervical flexion was 29 degrees: cervical extension 29 degrees: L lateral flexion 15 degrees: R lateral flexion 19 degrees: Right rotation 24 degrees: Left rotation 22 degrees: With these results, according to 38 C.F.R. § 4.71a, it warrants a rating of 20%.

• With the above range of motion results provides evidence to my statement that the C&P range of motion exam on XX/XX/XXXX was incorrect and

did not follow the "repetitive-use testing"

that must be used in the exam; which was not stated in the exam or the notification letter.

Also, a goniometer was not used and according to 38 C.F.R.

§

4.46 Accurate Measurements, one must be used.

WHAT: I disagree with the 10% rating for migraines, also claimed as chronic headaches:

WHY: As stated in my C&P exam on XX/XX/XXXX, I have at least 2 migraine episodes per month. I continue to have at least 2 per month and they incapacitate me for several hours. According to 38 C.F.R. § 4.124a it warrants a rating of 30%. I continue to have daily headaches as well and I'm currently on medication for migraines and headaches as prescribed by the VA.

WHAT: Residuals, surgical scar, microdiscectomy, and lowering it from 10% to 0%.

WHY: My scar is very sensitive and painful to touch. My MRI's (enclosed & on file) show that scar tissue is attached to my sciatic nerve. According to 38 C.F.R. § 4.118, it warrants a rating of 10%.

I have enclosed all documents mentioned above with this letter. I have also enclosed a form filled out by my VA physician that was used for my student loan discharge filled out on XX/XX/XXXX. I would like to use this as evidence in deciding my TDIU claim along with the above information and medical documentation. In this form it states that I am unable to engage in substantial gainful activity and that my residual functionality is less than sedentary. If you are unable to make any of the changes above and/or move forward with my TDIU deferred claim with the evidence provided, I would like the C&P exam on XX/XX/XXXX to be thrown out and a new exam to be performed.

Thank You,

Name

Contact Info

[justrluk]

The only suggestion I would make (and I don't know if it's really necessary) is that in my NODs, responses, etc. I always quote the decision: "In decision dated ../.../...., you stated "quote the notification section". I disagree with this because (you look as though you've already put together a well thought-out argument). I would also not presume anything is on file. If you have something that supports your argument, send it and refer to it. JMHO...

[Berta]

I feel this is excellent as you told them why they are wrong based on citations of established VA case law along with your medical evidence.

I view the NOD as the first avenue of attack on any improper VA decision and I experienced having NODs I prepared turn the entire decision around in a few situations.

This is great:

"my VA physician that was used for my student loan discharge filled out on XX/XX/XXXX. "

If this was based solely on your SCs, this is excellent evidence.

VA did this for my husband too regarding a small student loan and it became part of the evidence SSDI used to award him SSDI.

This is a proactive NOD and I like the 'throw out' the past C & P part.

I have been far less diplomatic in some of the NODs I have written in knocking down C & P exams.

After a claim is prepared , the NOD,in my opinion, becomes a way for VA to size us up and see how determined we are to challenge them.

It also raises arguments they have to deal with in an SOC or else reverse their decision and award the claim.

I hope others chime in here too.

All I can add is - if the C & P exam contained anything that seemed speculative, mention that point too.

I raised that issue in rebuttal to a C & P exam and sent my rebuttal to the BVA who had remanded it for a C & P.

The BVA S--t canned the C & P (ooops I mean basically they 'threw it out' , giving no weight whatsoever to the speculative statements at all.

[SSGmajik]

The only suggestion I would make (and I don't know if it's really necessary) is that in my NODs, responses, etc. I always quote the decision: "In decision dated ../.../...., you stated "quote the notification section". I disagree with this because (you look as though you've already put together a well thought-out argument). I would also not presume anything is on file. If you have something that supports your argument, send it and refer to it. JMHO...

That's a good idea to quote info from the letter. I think I will make those changes. I am sending copies of the info already on file, so they don't have to search for them in my C-file. Thank you for your help!

[SSGmajik]

I feel this is excellent as you told them why they are wrong based on citations of established VA case law along with your medical evidence.

I view the NOD as the first avenue of attack on any improper VA decision and I experienced having NODs I prepared turn the entire decision around in a few situations.

This is great:

"my VA physician that was used for my student loan discharge filled out on XX/XX/XXXX. "

If this was based solely on your SCs, this is excellent evidence.

VA did this for my husband too regarding a small student loan and it became part of the evidence SSDI used to award him SSDI.

This is a proactive NOD and I like the 'throw out' the past C & P part.

I have been far less diplomatic in some of the NODs I have written in knocking down C & P exams.

After a claim is prepared , the NOD,in my opinion, becomes a way for VA to size us up and see how determined we are to challenge them.

It also raises arguments they have to deal with in an SOC or else reverse their decision and award the claim.

I hope others chime in here too.

All I can add is - if the C & P exam contained anything that seemed speculative, mention that point too.

I raised that issue in rebuttal to a C & P exam and sent my rebuttal to the BVA who had remanded it for a C & P.

The BVA S--t canned the C & P (ooops I mean basically they 'threw it out' , giving no weight whatsoever to the speculative statements at all.

Thank you Berta! I think I will change some things as mentioned by "justrluk". As you said, the VA needs to know we're not just going to sit back and accept their decisions when we know we're being treated unjustly and a NOD is a good start. I think I have a great argument to their decision. Hopefully this will my deferred TDIU claim as well. I always appreciate your insight and help!

[Berta]

Yes.... Justrluk is absolutely Right! The NOD should definitely reflect the exact decision date.

I also would scan my decision into Office org and copy and paste in quotes what Justrluk advised in the NOD.

(most of my bad decisions came way before having a good scanner however-which is a fabulous PC program

Sorry I missed that and also I always sent anything to the VARO by using the Re: numeric code and initials in the upper right hand corner of the decision as a Re: for any 21-4138s, rebuttals, Nods, additional evidence etc etc.

I hope many quests who read our posts see this NOD and no claimant should ever depend on some generic NOD prepared by a vet rep that just says the claimant disagrees with the decision, without making the argument as you have done.

[71M10]

An additional thought.

Have you decided to request a DRO or send it straight to BVA?

If you intend to choose the DRO path you can state that in this letter and avoid one additional exchange of paper with the VA.

I have viewed the DRO option as on additional chance at a proper decision, before going to the BVA. I think the major disadvantage to it is that ultimately, it delays going to the BVA(which can be good or bad). I have had good results using the DRO process, but with my current one in its 19th month (my VARO's average is 12 months) if they do not award I am 19+ months further back in line at the BVA. Since it will push me over 100% schedular and in to an S rating, i have been sceptical that anyone at the Local RO is willing to award 100% for kyphoscoliosis and an enlarged right ventricle because the PFT's are essentially normal. It is one of those or statments in the schedule and they seem to have a hard time understanding that at times. I guess what I am saying is, since I doubted that the Local VARO would follow the regulation that closely, i probably should have gone straight to the BVA. I guess I won't know until the denovo review is complete, I know it wont happen any earlier than 19 months, but it took 19 months to find that out!

I still think that you should take every chance at a review/decision that you can and the DRO puts one more review/chance that you don't get if you file a traditional appeal.

Best regards,