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Filing A Nod On Initial Claim - Feedback Is Welcome :)


Julie1975

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Good morning! I am working on a lengthy NOD for my initial rating. There are things that appear to me were overlooked or not considered. I hope it's okay if I piece-mail it in this thread for feedback. I'm still working on my opening statement but I broke down each contention below using a format found on this site. :)

Here is the first one for my spine, my husband helped me with it. Please let me know what you all think; I've never appealed before so welcome constructive feedback. All medical evidence that I state below will be attached to my NOD.

Specifically, I disagree with the ratings for the following:

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1. Thoracolumbar Spine Rating

a) WHAT: I disagree with the decision for 20% assigned for my thoracolumbar strain and lumbar degenerative disc disease status post spinal fusion, L5, S1/Spinal cord stimulator implants and laminectomy/Pain syndrome with degenerative changes per X-ray.

b) WHY: My medical records and C & P exams reflects forward flexion of the thoracolumbar spine not greater than 30 degrees when factoring in the provisions of 38 CFR 4.40 & 4.45, and as cited in DeLuca v. Brown, 8 Vet. App. 202 (1995).

In regards to my medical contention for the spine, forward flexion not greater than 30 degrees is a more accurate picture of my chronic spine condition, also known as DDD, Spinal Fusion, and Pain Syndrome. As stated in my and my husbands support letter to the VA in my original claim, I am not able to bend over and pick up items due to limited motion of my spine. If I drop an item on the floor I am unable to pick it up and will leave the item on the floor until my husband or kids pick it up. My husband has relocated many items in our home so they are within my reach without having to bend forward (i.e. shampoo, soap, utensils, towels, etc). My ability to bend forward has remained extremely limited. When considered as a whole, my disability picture clearly reflects limited flexion as noted in the medical evidence below IAW C.F.R. §4.7.

c) Evaluation Seeking/Percentage: 40% in accordance with 38 C.F.R § 4.71a; based upon my range of motion of my thoracolumbar spine not greater than 30 degrees and including/considering my newest MRI which reflects my spine is continuing to deteriorate.

d) Medical Evidence:

- 12/17/2014: A range of motion was performed at QTC, San Antonio on as requested by the VA. While the examiner initially marked my forward flexion of the thoracolumbar spine at 60 & 40 degrees respectively, he noted additional limited function of my thoracolumbar spine. The examiner stated the following on my Thoracolumbar Spine Conditions Worksheet, section 20 in the remarks section:

"There are contributing factors of pain, weakness, fatigability, and/or incoordination and there is additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The degree of ROM loss during pain on use or flare-ups is approximately 20 degrees for flexion, 10 degree thorocalumbar extension and all other directions".

Forward flexion on this exam was 20 degrees for flexion and the combined ROM for my thoracolumbar spine was 70 degrees combined.

Additionally, I’ve had three other range of motion exams and I have included a new MRI completed after my initial claim file date:

- 08/19/2011: Range of motion test conducted by Audie L. Murphy VA Clinic in San Antonio Texas was as follows: forward flexion of the thoracolumbar spine is 25 degrees with evidence of painful motion at 20 degrees. Combined range of motion of the thoracolumbar spine not greater than 130 degrees. With painful motion, combined range of motion of the thoracolumbar spine not greater than 80 degrees. This exam noted that I had functional loss and/or impairment of the thoracolumbar spine with the following contributing factors: Less movement than normal, pain on movement, interference with sitting, standing and/or weight bearing. A goniometer was used and repetitive testing was completed during this exam.

- 04/01/2011: Range of motion test conducted by Physical Therapy at the 359th Medical Group, Randolph AFB, Texas was as follows: forward flexion of the thoracolumbar spine is 20 degrees and a combined range of motion of the thoracolumbar spine not greater than 270 degrees. A goniometer was used but repetitive testing was not completed during this exam.

- 12/03/2009: Range of motion test conducted by Physical Therapy at Wilford Hall Medical Center, Lackland AFB, Texas was as follows: forward flexion of the thoracolumbar spine is 27 degrees and a combined range of motion of the thoracolumbar spine not greater than 130 degrees with evidence of painful motion in each direction. A goniometer was used and repetitive testing was completed during this exam.

- 03/25/2014: I had an MRI on 03/25/2014 which was not available when I filed my original claim. The MRI revealed:

“L4-5 disk level: Disc is normal in height and signal. Small broad-based posterior disc protrusion with mild bilateral facet arthrosis and ligament flavum hypertrophy which results in mild bilateral subarticular zone narrowing and mild bilateral neuroforaminal narrowing. No significant central canal stenosis.

L5-S1 disk level: Disc space height loss status post discectomy and disc spacer placement with mild endplate spondylosis with small posterior projecting osteophytes. No significant posterior disc protrusion. There is a small amount of abnormal tissue circumferentially about the thecal sac at the L5-S1 disc space level with asymmetric increased tissue in the left lateral recess and left neural foramen which results in moderate central canal stenosis. Abnormal tissue in the epidural space at L5-S1 favors granulation tissue, though exam is limited without IV contrast, which extends into the bilateral neural foramen resulting in moderate right and moderate to severe left neuroforaminal stenosis and mass effect on the exiting L5 nerve roots.

IMPRESSION:

Postoperative changes status post L5-S1 laminectomy and posterior fusion and L5-1 discectomy and disc spacer placement. Abnormal epidural tissue at the L5-S1 level favoring granulation tissue results in moderate canal stenosis at the L5-S1 level and moderate right neuroforaminal narrowing and moderate to severe left lateral recess and neuroforaminal narrowing with mass effect on the exiting L5 nerve roots.”

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JUlie: Have you filed your NOD yet? If not, just file saying you disagree with the Decision Dated ??/??/201?. Worry about detailing the issues for next couple of weeks and your next correspondence with the VA. Contact your VA (SC Condition) treating Specialist and request that a DBQ be completed. I didn't wait for an appointment to get my DBQ's, take wrii=tten request to the VA Hospital and hand deliver it to your Dr. Worked for me, they usually have time available due to Vets missing appointments. Best evidence you can get is a favorable DBQ by a Specialist. Trumps a General Practicianer C&P opinion.

Get a copy of your C&P clinician notes to include the C&P DBQ from your VA Medical records department. Compare the DBQ to 38 CFR 4, do you rate an increase? Any and all evidence you mentioned above that wasn't available for the raters review needs to be submitted yesterday. If possible hand deliver to yor VARO or send Cert Return Rect US Mail. This might be one of the rare occasions that your VSO Rep could personaly ask the VA Rater for an unofficial reconsideration of your recently denied claim.

Semper Fi

Gastone

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Gastone,

Thanks for the quick reply! I have not filed the NOD yet--I just received my BBE Monday so am going through everything.

I do not have a VSO Rep and did the claim myself. All of the information I mentioned above (minus the MRI) was available to the Rater and included in my claim file. I'm not sure why the rater didn't consider my complete medical history; he/she seemed to use the C.F.R. loosely. I have other items rated just like my spine, such as carpel tunnel. My carpel tunnel (median nerve) was confirmed through a Nerve Conduction Test two years ago; the VA's contracted C & P examiner clearly marked "INCOMPLETE PARALYSIS = MODERATE" on both Left and Right wrists/hands but yet the rater stated in my BBE letter "Although the examiner reported moderate symptoms, your wholly sensory symptoms are more suggestive of a mild severity level for VA rating purposes".

Boggles my mind that the rater seems to be disputing the physical exam I had with the VA contracted C & P examiner.

It seems to me that this particular rater would pick and choose which ratings apply without considering all evidence. Additionally, I was denied IU and one of the rater's justifications for denial was that i applied for Vocational Rehab, which, according to the rater, is suggestive that I am able to be employed. The crazy thing is, if the rater had dug a little deeper and actually looked at my Voc Rehab application, he/she would have seen that I applied for the VA to assist me in making appointments, getting medical treatment, and aid in my daily living activities. Nowhere on my Voc Rehab app did I state I was looking to be employed. I had a horrible migraine the day of my Voca Rehab briefing so I no-showed. Physically, I just can't work a normal, full-time job. :(

The only specialist I see at this point are my Pain Management Doc and my General Practitioner. Anytime I see another specialist as soon as they hear I am under the care of Pain Management, they won't touch me with a ten foot pole.

My C & P exams were contracted out and I do have a complete copy of all my C & P exams, which I referenced above under the December 2013 date. I was Medically Boarded in the military so that's why there is the other ROM from the VA--I wasn't treated there, I was sent for the exam in case they medically discharged me from active duty.

I think it may be time for me to find a good VSO to help with my claim.

Do I need to send in the disagreement on plain letterhead or do I have to use their form and specify what I'm disputing? I was rated 10% or greater on 13 separate conditions and plan on filing a NOD on six of my SC conditions they rated.

Thanks again,

Julie

Edited by Julie1975
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I agree with Gastone, get the NOD going and then fill in the details. You are doing a great job. I submitted a detailed Patrick's Self Report, that someone sent me the outline on here, for my SSDI claim. It took me almost a week and thousands of words, but I still believe that my SSDI being approved in less than weeks, which is unheard of here in Texas, was due greatly to this detailed report.

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Julie: I think there has been talk of an official VA NOD form being available. Don't sweat it, just go to your E-Ben site and complete a "Stmt in Support of Claim." As long as you say your disagreeing with the VA Decision dated whatever, you have officially file the required NOD. Your next step is to determine how you want the appeal handled. BVA DC Hearing, maybe 3+-5+yrs wait. BVA traveling board or BVA Vidieo Hearing, less than 5 yrs. OR and I am very biased in this, I would recommend a DRO Review with personal hearing. Just from your initial post, you impress me as someone that could handle a 1 on 1 with a DRO. Your claim would be kept local and if you started r

right away, you might get your hearing in less than 3 yrs.

I just came across a VA publication ,"The Veterans Appeals Process" dated 2/28/2014. Just starting out on your Comp Appeals journey, I think this is a Must read. Let me know what you think. Pay very careful attention to New Evidence rules and how they affect your appeal.

Good Luck-It ain't really LUCK!

Semper Fi

Gastone

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