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

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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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Sorry to hear of this process driving you crazy. You are right though, that from other Vet's and my 3 Claims thus far, I have seen where the VA picks what it wants to use to Rate or Deny a Condition. I have had a few Exams that went horrible, yet they rated me well, like my R Shoulder 30% Rating just this week, and then other times have Great Docs and Exams, yet the VA denies those conditions. This whole process is so Troubling and Stressful for the Vet and their Families. God Bless and hope you guys have a good weekend.

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I just wanted to give an update on my NOD. Had to take a break for a few months because thinking about my entire case and the crappy job the rater did would cause me severe stress and anxiety. So I'm refreshed but still overwhelmed.

I ended up reopening my claim (request for increase) in eBenefits and just uploaded my entire NOD in a very neat and orderly fashion. I realize I can't appeal that route but I wanted to get something in the system. I was searching and searching where to send my hardcopy NOD but the VA's website had very limited information on NODs. I believe I have to send it all to the intake center but I'm extremely apprehensive about sending my file there. I have faxed over three items so far to the intake center (with confirmed receipt via fax) and every time they claim they didn't receive my information. So now I ponder the best method to send my hard copy NOD. The more I look into the NOD process, the more I'm confused. It's really hard for me to focus so one day I may feel sharp as a tack and the next I'm all over the place.

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