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StreetWalker

Thoughts On This Nod?

Question

I was denied TDIU based on two things. The first was a incomplete and fraudulent C&P exam and the other was due to my being scheduled to be reevaluated by Social Security in 5-7 years. I'm currently collecting SSDI based solely on my service connected conditions. Also I was awarded only 10% for depression.

Here's what I've got so far with the NOD.



Notice of Disagreement on Claim filed 07/26/2012 and 07/31/2012 Rating Decision on 01/30/2013


WHAT: I, Rex B Grigg, am writing this letter as a notice of disagreement to the rating decision I received on 01/30/2013. My claim for service connected compensation was filed on 07/26/2012 and my TDIU claim was filed 07/31/2012, for the purposes of this NOD I am combing both claims and I received a rating decision for these claim(s) on 01/30/2013 and TDIU was denied. I am providing medical evidence that shows that the C&P that was performed on 12/07/2012 contains errors. I am asking that the enclosed medical evidence and documentations to be reviewed and used to reevaluate my rating.

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 to award 10% for depression NOS for the following reasons.

WHY: Depression should be rated at 30% due to depressed mood over half the time even with medication. I also have anxiety and panic attacks 3-4 times per week. Chronic sleep impairment on a continual basis, medication helps somewhat but I still have problems falling asleep and staying asleep 4-5 nights a week.




Notice of Disagreement on Claim filed 07/26/2012 and 07/31/2012 Rating Decision on 01/30/2013


WHAT: I disagree with the evaluation of lower left extremity radiculopathy rated at 20%.

WHY: The Compensation and Pension examination of 12/07/2012 was incomplete. Some required items of the DBQ were not performed. However the DBQ submitted showed these items were completed. In section VIII Muscle Strength Training the exam stopped at the knee extension. The ankles and great toe were not tested on either lower extremity. The left foot and ankle have reduced muscle strength as has been evidenced in previous examinations. The left foot is weak enough to alter my gait and affect my balance. The pain in the lower left leg is constant and at times severe enough as to prevent me from placing weight on the leg. The severe pain in the lower left leg occurs 2-3 times per week. There’s also numbness in the skin on the outside of the lower left calf and top of the foot. During these periods of intense pain the whole leg becomes involved. It feels like the leg is being crushed.

WHAT: I disagree with the evaluation of gastroesophageal reflux disease rated at 10%.

WHY: GERD should be rated at 30% due to “Persistently recurrent epigastric distress with pyrosis, and regurgitation and substernal pain. I have constant pyrosis even with taking my medications. Time of day, fullness of stomach and/or type of food eaten makes no difference. I have reflux daily and actual regurgitation 4-5 times per week. Reflux to me means that contents of my stomach come up my esophagus but doesn’t




Notice of Disagreement on Claim filed 07/26/2012 and 07/31/2012 Rating Decision on 01/30/2013


make it up to the back of my throat or the entrance of my trachea. I often get regurgitation while sleeping. Often when this occurs I aspirate small amounts of the reflux. This causes me to come violently awake choking and coughing, I also have esophageal spasms 1-2 times per week. These spasms cause intense pain and make me unable to swallow till they subside. I’ve been taking medication for this condition for many years. At best the medication keeps the burning and pain to a tolerable level.

WHAT: I disagree with the denial of TDIU.

WHY: Mentioned in the denial is that I am currently receiving social security disability for my back but that SSA records indicate that my disabilities are subject to reevaluation and as such are not considered permanent. All recipients of SSDI are under a reevaluation schedule of some sort. This can range from one year to seven years. I’m scheduled for a reevaluation in five to seven years. That’s at the far end of the SSDI reevaluation scale. Using the rational that I’m scheduled for a reevaluation for SSDI in the future therefore I can be denied TDIU means that any Veteran applying for TDIU that is receiving SSDI MUST denied. Also the opinion of the examiner of the 12/07/2012 exam is quoted. That exam was not properly completed and is in direct conflict with statements from my Primary Care Physician at the Portland VAMC. I have attached additional copies of a Medical Status Report filled out by Dr. Azar on 08/07/2012. The examiner on 12/07/2012 opined that I’m capable of sustaining and gaining employment in a sedentary environment that does not involve lifting, squatting, bending or frequent twisting movement.




Notice of Disagreement on Claim filed 07/26/2012 and 07/31/2012 Rating Decision on 01/30/2013


This opinion is flawed. The examiner was more interested in trying to get
the computer in the exam room to boot up than she was in observing me or doing a complete examination. She notes that I was able to sit comfortably during the exam. That’s not correct. Sitting in a normal chair is limited to 15-20 minutes at a time. After that my back starts to flare up and become stiff and extremely painful, also this causes the pain in my legs to increase. I spend the majority of my waking hours in a recliner with my legs up and a heating pad on my lower back as can be evidenced by the Erythema ab igne on my lower back. This is the only position I can maintain with any degree of relative comfort. I can only drive for short amounts of time due to my back flaring up.

Thanks.

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Needs lots of work.

Needs to be compared exactly to what is stated in the C&P exams

and Reasons and Bases Section of the RD.

How about scanning and posting the RD minus your personal info.

If you can also provide the C&P's minus personal info that would be great.

I wouldn't put most of the wording in there that you have regarding the C&P examiner.

That's the best way for others to chime in on.

JMHO

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