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

[Julie1975]

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.”

[Berta]

Julie, if I were you I would use the NOD form solely for the NOD

and then use a 21- 4138 to claim any other conditions you are going to claim.

The VA is so snafued already, it pays to definitely separate these two issues

as separate issues....so they cannot confuse them.

"All of the information I mentioned above (minus the MRI) was available to the Rater and included in my claim file."

Do you have a copy of the MRI results to refer to in the NOD and attach it to the NOD as evidence?

[Julie1975]

Julie, if I were you I would use the NOD form solely for the NOD

and then use a 21- 4138 to claim any other conditions you are going to claim.

The VA is so snafued already, it pays to definitely separate these two issues

as separate issues....so they cannot confuse them.

"All of the information I mentioned above (minus the MRI) was available to the Rater and included in my claim file."

Do you have a copy of the MRI results to refer to in the NOD and attach it to the NOD as evidence?

Berta,

Thanks for the recommendation; I will use two separate forms.

Yes, I do have a copy of the MRI results and planned on submitting it in my NOD package.

Although all the ROMs mentioned above were included in my initial package, I plan on attaching them to the NOD with the MRI.

This is only one of eight ratings I'm working on for the NOD....sigh

- Julie

[Gastone]

Julie: Just looked at VA form 21-0958 "NOD." Check it out. The old advice, I received,but didn't follow, was to only say you disagree with Claim dated ????? and then wait to tell the VA exactly what you agree with and disagree with, after you recieve the VA Notice advising you of reciept of your NOD. I used a VA "SISOC" form and listed everything that I agreed with, issues that were SC and disagreed with each denial. At the very end I specifically stated that I was requesting the VARO DRO Review with a Personal Hearing.

For info only, I jerked around 11 months before filling the NOD, just procrastination. NOD filed around 10/2010, DRO Hearing notification receive 05/??/2014, DRO Hearing held 06/27/2014. At which time I had (2) DRO Hearing pending, 1st 2010 and 2nd IU NOD from 2012. The DRO said that because I decided at the begining of the "Official DRO Hearing to cover my 2010 NOD" to go informal hearing, he would cover both my NODs. I walked out 35 min later with all issues granted, a very good day.

Semper Fi

Gastone

[Gastone]

Julie:Hit the brakes for a second! Have you ever heard of the VA Appeals Avoidance Program? If you have, your ahead of me. A Vet I work with said his VSO Rep admonished him for not attempting the Appeals Avoidance after he received his claims denial which is now headed for a BVA Vidieo Hearing some time in the next 2+ years. After doing some reading on the VA info site, I think you should investigate this before filing the NOD.Your early on in your 12 month appeal window and DRO Hearings are taking 21/2+ yrs and BVA Hearings can take anywhere from 21/2 to 5 yrs. Check out the VA BVA 2014 Decisions, their taken in order of assigned Docket #. I viewed it 10/8/14, whole lot of 5 yr old appeals, with a generous number of Remands.

Check out GAO-11-812. Report to congress regarding DRO and VA Appeals process. Very interesting information for anyone about to start the VA Appeals Process.

Semper Fi

Gastone

[Julie1975]

Julie:Hit the brakes for a second! Have you ever heard of the VA Appeals Avoidance Program? If you have, your ahead of me. A Vet I work with said his VSO Rep admonished him for not attempting the Appeals Avoidance after he received his claims denial which is now headed for a BVA Vidieo Hearing some time in the next 2+ years. After doing some reading on the VA info site, I think you should investigate this before filing the NOD.Your early on in your 12 month appeal window and DRO Hearings are taking 21/2+ yrs and BVA Hearings can take anywhere from 21/2 to 5 yrs. Check out the VA BVA 2014 Decisions, their taken in order of assigned Docket #. I viewed it 10/8/14, whole lot of 5 yr old appeals, with a generous number of Remands.

Check out GAO-11-812. Report to congress regarding DRO and VA Appeals process. Very interesting information for anyone about to start the VA Appeals Process.

Semper Fi

Gastone

Gastone,

I will definitely check it out. I was looking at the MMWR and just had to sigh at the pending NODs in the current inventory. I've worked on my NOD for the past week and have the "guts" of my disagreement on each contention with exception of IU (I think it's up to 23 pages--my head hurts, my hands hurt, and my poor husband is a one finger typer, hehe). I feel a little beat down about it all and I'm having the never-ending flare up of my sciatic nerve pain which isn't helping.

I think I'll fax of my "SISOC" for the feet issues the rater suggested. At least get those in the queue.

I have been looking at the 2014/2013 BVA decisions to guide my word usage and noticed they are sooooo far behind. I'll let you know which route I go and what I find. Thanks a million for all the input. Time for me to Google "VA Appeals Avoidance Program"

Sorry one more question...how would I know if my bilateral carpel tunnel (Median Nerve) and bilateral radiculopathy (Sciatic Nerve) were rated using the bilateral calculator (not sure if I'm saying that correctly)? I don't see it mentioned anywhere on my letter and both math equations equal exactly 90 percent.

[Gastone]

Julie: My understand of Bi Lateral is: if your 10% r foot and 20% l foot, it gets added together to 31 (1) number up before they do the VA Magic Math calculation. You will have to verify what other parts can get Bi-Lateral ratings. Ears (other than Tinnitus), Feet, Hands, Arms Etc. Just about anything that you have 2 of. Check out the "Pyramiding Avoidance" in regard to rating something like the spine that could have more than 1 SC condition, You only get the Worst conditions rating.

Now as for your pending NOD filing. Don't allow yourself to get overwhelmed, step back and regroup. It's better to take your time, be concise and to the point. Your not a DR and the VA with their DBQ's, from theirs and your outside Dr's will handle the DXing.

Let me know what you think of the Appeal Avoidance Program. Looking back. I would have given it a shot early on, while I got all my Ducks in a row for the DRO Filing. Do you have any NEW evidence to submit regarding your claim? Was there any evidence that you had submitted, that wasn't reviewed in making your denial?

Semper Fi

Gastone