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Berta "nod"


david walker

Question

Berta, please give your advice. This is a work in progress and all advice is appreciated. I have removed names and dates, this may cause the letter to read a little funny.

Dear Sir,

I received a rating decision dated ____. Consider this letter to be an official “Notice of Disagreement” (NOD) regarding the following disabilities:

Degenerative Disc Disease, Cervical Spine, Status Post C4, 5, 6 Discectomy and Fusion 20%

Degenerative Disc Disease of the Lumbar spine 10%

Gastritis with Gastroesphageal Reflux Disease 10%

Headaches of Upper Cervical Occipital blending with daily Neck Pains 0%

Anxiety Disorder, Not Otherwise Specified 10%

Cervical Radiculopathy (left and right arms) Not Established

Residuals of Trauma to the Right Elbow 0%

Post-traumatic Arthritis of the Right Wrist effective 10%

1. I fully disagree with the 20% rating for Degenerative Disc Disease, Cervical Spine, Status Post C4, 5, 6 Discectomy and Fusion effective _____ for the following reasons:

a. VAMC, (date): MRI revealed Osteophytosis (arthritis) and Annular Bulging (herniation) at C3-4, Facet Disease at C5-6, Annular Bulging at C6-7 (herniation). MRI also showed the fusion at C4-C6, grossly satisfactory (not what it should be).

b. Diagnosed by Primary Care Doctor at VAMC with chronic pain due to cervical spondylosis and s/o diskectomy 3 disks and prescribed a cervical collar and topiramax for pain and zanafelx for neck spasms.

c. ______ Physicians, (date) – X-ray showed arthritis (osteophytosis) of the C-Spine, especially at C4-C6, where the metal plate and broken screws (2).

d. I have daily Chronic Pain – secondary to my neck and back injury, worsened from complications from my surgery. Supported by diagnose from ____ Physicians, _____Neurology and Associates, _____ Chiropractic, and _____Neurosurgery and VAMC.

e. I have neurological defects in both upper extremities (burning, numbness and aching pain in both arms and shoulders, greater in the right arm/shoulder) secondary to my neck injury. Supported by diagnose from ___Physicians, ___Neurology and Associates, ___l Chiropractic, and ___ Neurosurgery and VAMC. Loss of strength in my right hand has been documented in my C&P on ____.

f. At no time during my exam did the doctor measure my range of motion with goniometer. Title 38, Part Accurate measurement: Accurate measurement of the length of stumps, excursion of joints, dimensions and location of scars with respect to landmarks, should be insisted on. The use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the Department of Veterans Affairs. Muscle atrophy must also be accurately measured and reported.

g. The neurological C&P on ___ erroneously states (one screw was loose) when in fact two interlocking screws used in my cervical fusion are broken. The broken screws are documented in my medical reports.

My rating should be at least 40-60% based degenerative arthritis; time lost from work, incapacitating episodes and significant residuals (limitation of motion, painful motion and muscle spasm), documented by my medical records, x-rays and work records.

2. I fully disagree with the 10% rating for Degenerative Disc Disease of the Lumbar spine for the following reasons:

a. The C&P exam on ___show my range of motion of the lumbar spine as: forward flexion 90 degrees, extension 20 degrees, lateral flexion 20-30 degrees bilaterally, and rotation 30 degrees, at no time during my exam did the doctor measure my range of motion with goniometer. Title 38, Part 4-46.

b. I disagree with lateral flexion 20-30; range of motion should be rounded to the nearest five degrees. Title 38, Part 4.71a (spine)

c. Doctors C&P on___states no pain with range of motion activity, which is completely untrue.

d. I have neurological defects in both lower extremities (burning, numbness and aching, greater in the right leg).

e. MRI at VAMC on ___ showed L3/4 narrowing and bulging disk and mild apophyseal degenerative deformity.

3. I fully disagree with the 10% rating for Gastritis with Gastroesphageal Reflux Disease for the following reasons:

a. Under the rating, 7346 Hernia hiatal:, I have the following symptoms: (1) pain, (2) weight loss, (3) persistently recurrent epigastric distress, (4) dysphagia, (5) regurgitation, (6) arm and shoulder pain. During the attacks of epigastric pain I am completely incapacitated.

b. In the C&P on ___under medical history the doctor wrote None for Dysphagia. My medical records clearly show that on ____I was diagnosed and treated for dysphagia at ____Physicians. My medical records clearly state dysphagia. I currently have trouble swallowing my medication and when eating I feel as if food is being trapped in my throat.

c. My medical records from ___Physicians and ___Surgical Associates document that in ___, I was treated with Heliac Pac for H-pylori. The C&P exam incorrectly reports no H-pylori. The postoperative report stated mild to moderate gastritis with focal areas of erythema along the lesser curvature as well as in the antrum. That report is over a year old, and I believe my condition to have worsened during this time.

d. I have persistent reoccurring epigastric distress, chart below shows treatment and dates:

Physician Date Diagnosis

Physicians Reflux

Associates Epigastric Pain Discomfort

Hospital Gastritis/Epigastric Pain

Physicians Dysphagia/Reflux

Physicians Stomach Pain

Care Epigastric Pain

Physicians Epigastric Pain

Physicians Epigastric Pain

Physicians Weight Loss/ Chest Pain

Physicians Abdominal Pain

Physicians Rt Upper Quadrant Pain

P hysicians Midepigastric Pain

Physicians Rt Upper Quadrant Pain

I am currently on medication to control epigastric distress. This medication helps, but has not alleviated my distress. I currently have terrible flare up’s 2-3 times a month, these flare ups can last for days.

e. I disagree with the examiners statement (her weight is stable). My frequent episodes of epigastric distress with nausea diarrhea have caused a significant weight loss. Chart below shows my weight changes from 2002-2006. From 2002-2003 my average weight was 169lbs. My stomach problems started in 2003. My average weight for 2004-2005 was 155lbs. From September 2002 till November 2003, I lost 29lbs due to stomach problems caused by my cervical disk problem and side effects of pain medications. Weight loss is documented in medical records. My weight currently goes up and down depending on my degree of stomach distress.

9/17/02 – 176lbs 4/11/03 – 168lbs 6/15/04 – 149lbs 6/2/05 – 155lbs

9/27/02 – 174.5lbs 7/21/03 – 162lbs 8/27/04 – 150lbs 11/7/05 – 153lbs

2/28/03 – 168lbs 11/6/03 – 147lbs 1/11/05 – 162lbs 6/9/06-160lbs

3/28/03 – 164lbs 5/18/04 – 149lbs 2/11/05 -160lbs

Title 38, Part 4.112 Weight loss: For purposes of evaluating conditions in §4.114, the term “substantial weight loss” means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term “minor weight loss” means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term “inability to gain weight” means that there has been substantial weight loss with inability to regain it despite appropriate therapy. “Baseline weight” means the average weight for the two-year-period preceding onset of the disease.

e. Treated at (Physicians) and the VA for the following conditions: Reflux, Panic & Anxiousness, Dysphagia, Epigastric Pain, Weight Loss, Chest Wall Pain, Abdominal Pain, and Midepigastric & Right Upper Quadrant Pain.

4. I fully disagree with the 0% rating for Headaches of Upper Cervical Occipital blending with daily Neck Pains the following reasons:

a. My migraine headaches are secondary to my SC neck injury and worsened by complications from surgery. I began having occasional headaches after my neck injury. I was treated for migraines in 1999 by Neurological Consultants. Prior to and after the surgery, I had to be taken to the emergency room for treatment on numerous occasions. My migraines are documented in my military medical records. My headaches increased in 2003 after my neck surgery. I have daily headaches with migraines 2-3 times each month.

b. I submitted documentation from the following medical facilities supporting my migraine headaches: Physicians, Physicians, Neurology Associates, VAMC-Asheville, Gamewell Chiropractor, and C&P exam .

c. During my C&P on ___the doctor did not ask me any questions about my headaches. He did however mention headaches in the report and his diagnoses. Diagnoses: Headaches of the upper cervical occipital blending with daily neck pain. My headaches are very painful and daily with incapacitating episodes 1-2 times a month. The report also referred to headaches diagnosed as migraines. Headaches of the upper cervical occipital is a neurological abnormality, and should be rated separately.

d. The journal I kept and submitted with my claim showed since 05 I suffered from 48 headaches, 14 of which were prostrating migraines. Since 06 I have documented in my journal eight prostrating migraines this year. (8100 Migraine: With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability…50 With characteristic prostrating attacks occurring on an average once a month over last several months…30)

5. I fully disagree with the 10% rating for Anxiety Disorder, not otherwise specified for the following reasons:

a. I tested positive for PTSD at the VA Hospital. I was referred for screening by the mental health department. After the screening I was told by the tester I should be seen for treatment.

b. I tested positive for depression during my physical.

c. My efficiency at work has decreased; I have trouble remembering correct working procedures, remembering the correct spelling of words, remembering payroll deadlines (memory loss).

d. The quality of my family and social life has severely decreased. I have problems remembering doctor appointments, the names of my son’s medications, and events that happened from day to day, or when to pay bills. I no longer associate with friends and I avoid contact with co-workers.

e. I am in chronic pain daily and this causes me to be depressed. I have anxiety attacks at least once a week and they can last for days.

f. During my exam I did not effectively describe my sleep impairment; I wake anywhere from 200 am on during the night and I do this every night Monday thru Sunday. I sit in the dark and watch television. I am in constant pain, the constant pain causes me excess stress and worry; this is the reason I can not sleep at night.

g. I have violent outbursts of anger when provoked or challenged.

(Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks(although generally functioning satisfactorily, with routine behavior,self-care,and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss {such as orgetting names, directions, recent events} ….30)

The accident, complications from surgery, and living in chronic daily pain has drastically reduced the quality of my life and caused me a great many mental problems.

6. I fully disagree with the non service connected determination for Cervical Radiculopathy (left and right arms) for the following reasons:

a. Cervical radiculopathy is a neurological defect that effects both of my upper in both extremities.

b. The most common causes of Cervical radiculopathy are herniated cervical disk, spinal stenosis and degenerative disk disease. All of which I have been diagnosed with by civilian and VA doctors. All are service connected.

c. A Nerve Conduction Study (EMG/NCV) done at VAMC showed chronic bilateral C6-T1 cervical radiculopathy.

7. I fully disagree with the 0% rating for Residuals of Trauma to the Right Elbow for the following reason:

a. 4-10-06, Nerve Conduction Study (EMG/NCV) done at VAMC-Asheville showed

right ulnar neuropathy at elbow and recommendation for surgery.

b. At no time during my C&P exam did the doctor measure my range of motion with

goniometer. (Title 38)

8. I fully disagree with the 10% rating for Post-traumatic Arthritis of the Right Wrist 10% for the following reason:

a. A Nerve Conduction Study (EMG/NCV) done at VAMC showed right median neuropathy at the wrist (carpal tunnel syndrome) and recommendation for surgery. Arthritis is the main cause of carpal tunnel syndrome. Ulna or radial deviation is a contributing factor of carpal tunnel. (5214 Wrist, ankylosis of: Unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation…50 ..40 Any other position, except favorable….30 Favorable in 20º to 30º dorsiflexion … 30…. 20)

b. The median nerve runs through the carpal tunnel in your wrist, ulnar deviation reduces the size of this tunnel and pressure on this nerve causes carpal tunnel syndrome.

c. At no time during my C&P exam did the doctor measure my range of motion with

goniometer. (Title 38)

I fully intend to continue to appeal until the benefits I seek have been granted.

I am requesting a De Novo Review by a new Decision Review Officer. I will be awaiting your reply.

Sincerely,

Edited by david walker
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David- I feel this is excellent and a good example for all the vets who read this- as to how you all often have to tell the VA clearly why their decision is wrong- based on medical evidence and established regs and VA case laws.

There are numerous issues so I do not see how this could be abbreviated at all-

I think page one (if they skim it) however will get their attention and they will read the rest.

I only have one suggest-

(and I regret and am always angry that vets have to do all of this work-but this is what it takes)

To give the actual citation from 38 CFR or M21-1 wherever you can here-

I use 38 CFR over Title 38 USC and I use M21-1 a lot-

I copy and paste the actual part of the regs I need into the NOD,from the window at the 38 CFR site and also I copy the http: link so it comes up blue in the NOD or SOC Response and they cant miss it.

I also often attach the actual regs from 38 CFR if the whole shibang is needed and also I recently sent them 2 pages from M21-1 which is the manual that tells them how to do their job. This was the part they need to read in the Reconsideration Request I made regarding my CUE claims.

I have used M21-1 with specific Chap or Part references-in my personal claims a lot because - it is the VA's documentated MOS on how they will do something regarding a claim-

One more piece of ammo in the War of the Words.

I will read this all again later- and hope others chime in here with suggestions-

You have raised excellent points at every juncture-

and of course, if you become unemployed they have to consider you for TDIU- I think I attached the form in prior post to you?

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David,

I agree with Berta. I think what you wrote is also excellent and can be very useful to other veterans who read it to get an idea of how to write an NOD. I also agree with Berta in citing the codes and regulations that apply to what you are disagreeing with. I think the VARO likes to see these quoted as well as your reasons and the medical evidence you have.

Good Luck,

mssoup1

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  • HadIt.com Elder

Your NOD and request for DRO review is very specific. I suggest that you look into a short boiler plate paragraph to request that the VA assist you to determine and rate all physical or mental defects caused or aggravated by your service.

I think that there are examples in prior posts made by Alex Humpfrey who is a lawyer who represents Vets against the BVA and CVA

Hang in there and never give up.

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