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

[SSGmajik]

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.

Again, Thank you Berta, this is great info/advice! I did put the exact dates in, but just left them out of my sample letter. You're right, we have to fight for ourselves and not rely on VSO's and others to do work for us. Some are very helpful, but some are there just for a paycheck! I wanted to make sure I had evidence and regulations and laws to argue their findings and I think I have a good chance to win my argument. I appreciate all your help, advice, and guidance, thank you!

[SSGmajik]

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,

Thank you 71M10, for your input and advice! I'm not sure if I want to go the DRO or BVA route. I'm thinking the DRO, because I had my TDIU claim deferred and the only made the decision on my rating. If I send it the BVA route I'm not sure if it would slow down or cause a denial on my TDIU claim. So, I hoping the DRO route would be easier and since they're still in the "gathering evidence" phase of the TDIU claim, even though I filed in 10/2010, they would be able to make a quicker decision and use this evidence to help decide my TDIU. I know it's wishful thinking for anything to move fast at the VA, but I'm just hoping this helps! If I should go the other route, please someone let me know! Thanks again for your help!

[rpowell01]

If you dont mind me asking how long have you been rated for your cervical issues? If I am not mistaken after a certain amount a years they are not allowed to lower it. It doesn't matter if you can bend further if you been rated for 10 years, I think thats the number....I could be wrong but I have read this somewhere a few times...

[USMC5811]

If you dont mind me asking how long have you been rated for your cervical issues? If I am not mistaken after a certain amount a years they are not allowed to lower it. It doesn't matter if you can bend further if you been rated for 10 years, I think thats the number....I could be wrong but I have read this somewhere a few times...

I think your referring to this:

5.9.1 Protections against Reductions after Ten and Twenty Years of Continuous Benefits or Rating at a Particular Level

If a rating level or benefit has been continuously in effect for a certain length of time, it may be protected by law from reduction or severance. For example, after ten years of the veterans continuous receipt of service-connected disability or death benefits, the VA cannot sever the benefits (that is, terminate service-connected status) unless there was fraud involved in obtaining the rating or the VA discovers that the veteran did not have the required length or character of service.429 Similarly, if a disability has been continuously rated at or above a particular rating level for twenty or more years, the VA cannot reduce the rating below that level unless it discovers that the rating was based on fraud.430 For example, if a veteran is granted compensation based upon an original rating of 30 percent and for the next twenty years the rating varies between 30 percent and 100 percent, the rating cannot thereafter be reduced below 30 percent in the absence of fraud. The twenty-year protection rule applies even to rating levels that are assigned retroactively because a previous final decision is revised based on a finding of clear and unmistakable error (CUE). That is, if a rating is "retroactively increased [based on a finding of CUE] and the effective date of such increase is more than twenty years in the past, the revised disability percentage is protected" by the twenty-year protection rule.431 (The concept of clear and unmistakable error is discussed in Section 14.4 of the Manual.)

I am currently trying to read a few cases a day of the US Court of Veteran Appeals - it seems when there is a reduction involved, many of the claimaints/reps/attorneys refer to Brown vs Brown 92-325.....

In Brown v. Brown, 5 Vet. App. 413 (1993), the Court of Appeals for Veterans Claims (Court) identified general regulatory requirements which are applicable to all rating reductions, including those which have been in effect for less than five years. Id. at 417. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Id. at 420. Similarly, 38 C.F.R. § 4.2, establishes that "t is the responsibility of the rating specialist to interpret reports of examination in light of the whole record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." Id. The Court has held that these provisions "impose a clear requirement" that rating reductions be based on the entire history of the veteran's disability. Id.

Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421.

Edited July 28, 2012 by USMC5811

[free_spirit_etc]

I just worked on polishing a bit.

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 this claim XX/XX/XXXX. I am providing medical evidence that shows that the C&P that was performed on XX/XX/XXXX contains errors and is inadequate for rating purposes. I am asking that the enclosed medical evidence and documentations be reviewed and used to reevaluate my rating.

Additionally, my TDIU claim was filed XX/XX/XXXX and has currently been deferred. I am asking that the enclosed medical evidence be used in evaluating my TDIU claim.

I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR.

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: The range of motion reported in the C&P exam is in error:

§ The C&P range of motion exam did

not

use repetitive-use testing (in accordance with XXX?) and did

not

use a

goniometer (in accordance with 38 C.F.R.

§

4.46 Accurate Measurements)

. This was not stated in the exam or the notification letter.

MEDICAL EVIDENCE:

A range of motion was performed at XXXXXX Spine Center on XX/XX/XXXX. The report states that my lumbar forward flexion was 10 degrees. (attached & on file)

A range of motion test was performed by a physical therapist at the VAMC in XXXXXXX on XX/XX/XXXX For this test 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. (attached).

When my range of motion is measured accurately, the results warrant a rating of 40%, according to 38 C.F.R. § 4.71a.

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

WHY: The range of motion reported in the C&P exam is in error:

§ The C&P range of motion exam did

not

use repetitive-use testing (in accordance with XXX?) and did

not

use a

goniometer (in accordance with 38 C.F.R.

§

4.46 Accurate Measurements)

. This was not stated in the exam or the notification letter.

MEDICAL EVIDENCE

A range of motion test was performed by a physical therapist at the VAMC in XXXXXXX on XX/XX/XXXX For this test 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:

When my range of motion is measured accurately, the results warrant a rating of 20%, according to 38 C.F.R. § 4.71a.

WHAT: I disagree with the decision giving me a10% rating for migraines, also claimed as chronic headaches:

WHY: As stated in my C&P exam on XX/XX/XXXX, I continue to have daily headaches. Despite the fact I am currently on medication for migraines and headaches (as prescribed by the VA) I continue to have at least 2 migraine episodes per month that incapacitate me for several hours. This warrants a rating of 30%, according to 38 C.F.R. § 4.124.

WHAT: I disagree with the decision in lowering my residuals, surgical scar, microdiscectomy from 10% to 0%.

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

I have enclosed all documents mentioned above with this letter. I have also enclosed a form my VA physician completed on XX/XX/XXXX for my student loan discharge. The doctor certified that I am unable to engage in substantial gainful activity and that my residual functionality is less than sedentary. I would like to use this as evidence in deciding my TDIU claim, along with the above information and medical documentation.

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 considered inadequate for rating purposes (in accordance with 38 C.F.R. § 4.2) and a new exam to be performed.

Thank You,

Name

Contact Info

[free_spirit_etc]

http://38uscode.com/Courts/VetCourt/2011/Mitchell_09-2169_published_opinion_August_23_2011.pdf

Interesting case on the effect of pain on repetitive range of motion - and exams being considered inadequate for rating purposes.