Back Injury Nod

[Ricky]

Just would like you guys to take a gander at my NOD. I plan to submit it tomorrow (oops did not see the time so I guess it will be today). I will check hadit at work to see if anyone has any input before I mail it out. I know that I should have done it earlier but hey, they keep me busy on my previous NOD which contained 10 issues and finally went to a formal appeal after a carbon copy De Novo Review and a SOC that was only two pages long for the entire 10 items.

Ricky

16 August 2006

Department of Veterans Affairs

Regional Office

345 Perry Hill Road

Montgomery Alabama 36109

Reference: 111-11111; XXXXXXX, Ricky

Notice of Disagreement

Dear VARO Montgomery,

Please accept this as my official Notice of Disagreement to your 27 January 2006 Rating Decision concerning the rating of my disability of minimal spurring at L5. This Notice of Disagreement also serves as my request that a De Novo Review be conducted in support of my request and as part of that process I be furnished the opportunity, as afforded by 38 CFR, of a personal hearing with a Montgomery VARO DRO on the below issues.

Reason for disagreement number 1. Assignment of an erroneous effective date of entitlement.

-In your January 27 2006 rating decision the VSR erroneously assigned the effective date of entitlement for this claim as 31 January 2005. However, the request for an increase in rating percentage for this disability claim was requested in and received by VARO Montgomery in a 2 February 2004 reopened claim. This 2 February 2004 claim was adjudicated by VARO Montgomery on 12 July 2005 at which time the request for increase was denied and the rating percentage for this disability was continued at a zero percent rating. Based upon the denial in the 12 July 2005 rating decision a Notice of Disagreement was submitted and received by VARO Montgomery on 25 August 2005. As a result of the 25 August 2005 Notice of Disagreement VARO Montgomery issued a new rating decision, 27 January 2006, for this disability claim awarding an increase to a 10 percent rating with an effective date of entitlement of 31 January 2005.

-I am unsure where the entitlement date of 31 January 2005 came from as it was not discussed any where within the rating decision. However, 38 CFR provides that the date of entitlement is to be determined as “the date of receipt of claim.” The evidence of record in the claims folder provides that the date of receipt of the reopened claim and request for increase was 2 February 2004 there by, making the date of entitlement for this claim 2 February 2004.

Actions Requested: That VARO Montgomery properly apply the law, 38 CFR and internal operating policies and assign the proper effective date to this claim which is the date of receipt of the original claim 2 February 2004.

Reason for disagreement number 2: Failure to assign the appropriate level of disability to this claim.

-In the evidence of record for this claim, the18 May 2005 Compensation and Pension examination conducted at VAMC Birmingham, which was ordered by VARO Montgomery specifically for this claimed disability, the examiner provided in his objective findings that the forward flexion of the lumbar spine was limited to 45 degrees.

-In the 27 January 2006 rating decision VA provided the following requirements from 38 CFR :

-An evaluation of 10 percent is not warranted unless there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.

-An evaluation of 20 percent is assigned whenever the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60.

-Now I do confess that I am only a lay person, as I am not a trained Mathematician, but the training received during my 25 years of military service does make me truly believe that 45 degrees is greater than 30 degrees and less than 60 degrees therefore, making the appropriate percentage level for this disability 20 percent.

Actions Requested. Based upon the evidence of record, the objective findings of the VA examiner during the 18 May 2005 Compensation and Pension examination, VARO Montgomery award me the appropriate level of compensation for this disability which per CFR 38 Part 4 is 20 percent.

Thank your for your time and assistance and your service to America’s Veterans.

Ricky

Phone number, address and email address

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Edited August 16, 2006 by Ricky

[vaf]

"Now I do confess that I am only a lay person, as I am not a trained Mathematician, but the training received during my 25 years of military service does make me truly believe that 45 degrees is greater than 30 degrees and less than 60 degrees therefore, making the appropriate percentage level for this disability 20 percent."

Ricky, as much as I empathize with the frustration (believe me!) you feel about this issue, I think it would be better to make your point without the first part of your statement. Base your statement strictly on the rating criteria, that is, "The rating criteria under (four digit code) clearly states that a rating of 20% will be assigned whenever the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60. Therefore, the VA, in its most recent decision regarding this condition, has made a rating error based strictly on the rating criteria contained in (four-digit code)." Or something like that.

One SOC my husband received several years ago stated that he was in Vietnam in 1977 (of course, the fun and games were over by then). That prompted a rather angst-ridden letter to our Congressman. Poor guy's had his fill. In 1993, my husband had filed his papers for a regular retirement when he became ill, a condition that disqualified for him for further service (that had been allowed to progress because of a misdiagnosis by a so-called officer physician). The USAF refused to stop the clock on his regular retirement after many attempts for us to get that done, so 30 days before timing out, we contacted the Congressman who intercepted this raw deal, got it stopped, and made sure my husband got his medical retirement. After all this time, anytime I think of what happened, I get mad all over again, and that bleeds over to the VA when we receive decisions where they clearly disregard their own regulations. So when I write my husband's NOD's, I have to continually restrain myself from losing my objectivity. I believe our NOD's have the best chance of being taken seriously when they lack any hint of the frustration we feel, at least that's one less reason to automatically drop-kick them to the Board.

[Berta]

I agree that point was too strong-

(then again- I responded to VA in my recent Reconsideration Request to a statement in a recent decision I got on my CUE -with my typed statement "The Hell he didn't" and sent them evidence of my rebuttal to that - so I get tough too-

BUT - I agree that they will get your point without being put on the defensive- and I like the way you ended this NOD.

I always sign my VA stuff Respectfully, Berta Simmons and then add stickers that say Support our Nations Vets etc-

Many of the people who handle our claims are vets and they are disabled by service-

My VARO expects me to word my responses very strong and full of VA legalise-after 20 years they know me-

Most claimants however should refrain from statements that are too strong- because your references to legal facts as to the proper rating are excellent.

Just my opinion----

[Ricky]

Trust me guys, this type of statement will allow these guys to see the softer side of me and could reduce my original claim processing time from 3-6 years to 1-4 years. This is based upon my previous dealings with them.

Ricky

[Berta]

Ricky- if you know you are dealing with some of those same people- you have a pulse on how they are-

If you feel that this statement should be in there- then leave it-

I know exactly what you mean.

Years ago some adjudicator got mad at me because I called him at his VARO desk phone at 7: 30 in the morning-

(some get there very early-I had all RO desk phone numbers of all adjudicators)

When he made a serious mathematical error on a decison he sent me-(like simple addition)regarding another claim I had-

I was very tough and did not mince words in my letter to him.

I got my money on that within 2 weeks.

They all got upset when I sent them some of Rod's ashes in support of a rebuttal to a slanderous statement they made in an SSOC-1997-

I swiped a VA book from the VAMC PT library here and sent them the book in support of that claim 1997- they were pissed because-they had to return the book to the library and it was written by a VA Chief of Cardiology and he has done extensive work associating heart disease to stress in combat vets- (he authopsied combat vets and found these young Nam vets has signicant accelerated atherosclerosis which caused heart disease and could have only come from the stress of battle.)

They never used this as evidence in support of my claim.

I have had to become extremely tough on my RO- many are still mad over their last futile experiences with me to deny my claims-and those claims were resolved at the RO level-

when they got my wrongful settlement info from the OGC ,I think the amount there made some of them real mad too-as they were denying the 1151 claim continuously as the OGC ,in Washington ,was resolving it.

I had many other problems with them too- and I think you all realise I am not one to sit back and accept their crap-my c file reveals much other stuff too-so

I now comprehend your point- and if you feel comfortable- by all means leave that statement there-as you believe you can anticipate their response.