Re-Writing Nod And Other Appeal Questions

Saltyham04 · January 13, 2015

Hello all,

I've been gleaning information from this forum for years and want to start by thanking everyone for their insight and information. It's been a much more difficult road than I ever imagined, but it's been made more navigable by all I've learned from you along the way. Thank you for your help over the years.

I am currently awaiting appeal for a C2 fracture(broken neck, hangman's fracture) incurred in a HMMWV accident in 1994 while on active duty. After years and years of denials and fruitless attempts to have the VA live up to its obligations, in 2012 I finally learned the extent of my injuries and had a C&P decide that it is "more likely than not" that this injury occurred while on active duty. My broken neck was finally accepted as a SCI! Things were finally going my way. Sort of. When the decision came down the VA once again(although not surprisingly) gave me an insultingly low rating for my neck and only back dated the effective date to the last claim I made in 2011. I filled a NOD and started the appeals process. I have years worth of denial letters referencing denials as far back as 1997. I also have notes from neurosurgeons explaining that my injury is so drastic and severe due to how far up my spine it is that it should be treated, and rated, more like a brain stem injury than a simple spinal injury. These same neurosurgeons remark at their surprise of how, over the years, I've managed to avoid quadriplegia as a result of complications of the original injury.

I recently went through a life changing/saving surgery to protect the broken part of my vertebrate that is impacting my spinal column. The fracture itself is not surgically repairable so a surgery to protect the bone fragment from potentially life threatening impact was our first step in making me whole again. Armed with years of denial letters, neurosurgeon statements that I've got a very dangerous injury in my neck, and an impactful x-ray of the initial work required to fix said injury, I feel it's obvious that I deserve a higher rating and an effective date of 1997. What I need to figure out is how to make the VA see the truth as well.

I am only now learning that a majority of my problems of the last 17 years have been caused by an enthusiastic, but mostly incompetent VSO. While he does the work of an angel, I don't think he has the cognitive capacity to do his job well enough to conform with the strict boundaries the VA sets out. While I can't blame him for all of my woes, I signed all the papers he presented so I'm ultimately responsible for the outcome, I can say that I've become better educated myself and have made right most of his wrongs. There are a couple others that I am hoping for a little insight into.

For at least the last 7 years I've been trying to get a physical copy of my denial letter from November, 1997. My VSO has told me he has done everything he knows of to retrieve the document but he never ordered my entire C-file. Recently I've learned that if I was to order my C-file that it would take a year for me to receive but that it would contain said document. Is this true? My congressional advocate seems certain my appeal will be decided in March so I'm wondering if anyone knows of a quicker way for me to procure that 1997 denial letter?

In trying to get all of my ducks in a row for this appeal I noticed that my actual NOD is mostly illiterate and unreadable. Immediately upon receiving the low rating and incorrect effective date for my neck I went to my VSO for guidance as to what to do next and he said we need to "file an NOD". He said the most important thing to do is to get the ball rolling by filling out a VA Form 21-0958, which we immediately did. He typed a very hurried synopsis of why I'm disagreeing, referencing random codes(USC 38, 1111 and CFR 38???), and mostly creating filler with misspelled words and a lack of punctuation. He told me to just sign it so we can get it filed and that we could come back later and enter a better narrative. When I went back to him to have a better narrative entered he told me it wasn't possible. He also went so far as to tell me that an illiterate narrative might actually help me with the raters. I don't believe that for a second and assume that a well written NOD would be a benefit to me in the long run?? Is there a way for me to go in and change the wording of my NOD narrative, section 16A. of VA FORM 21-0958? Am I right to assume that this particular document is one of the first things an appeals person is going to read and that it should be concise and to the point?

Lastly, should I just get a lawyer? I feel that I am now very informed about my case and seem to have almost everything I need to prove my case but would hate to miss a small step that would cause a decision against me. Again. I surely don't want a lawyer to come in in the 9th inning and walk away with an easy 20%-30% for doing mostly nothing. I'm willing to pay for services rendered, but feel at this stage of the game the traditional fee would be outrageous. Would I be better to see this through by myself or would you folks recommend I retain the services of a Veterans Lawyer? Any suggestions for individual lawyers?

One more thing, should I just email this to "Bob"? I've read several references of people on this forum doing so and am wondering if it's a recommended way to go?

Wow, didn't realize that I would be this longwinded and open about something that is so personal. Thanks in advance. Any and all suggestions/help would be appreciated.

-SaltyHam

Gastone · January 14, 2015

Salty: Give yourself a gut-check regarding your claim and appeals situation. If your comfortable with your level of knowledge and the New & Material Medical Evidence that has been supplied to your VARO, a NOD DRO Personal Hearing where you take a VSO DRO Hearing Specialist might be all you need. With that said, get at least (3) VA Appeals Accredited Lawyer Free Consultations. You don't have to sign with anyone, just get the consult and see what they think. When I did it in early 2014, discussed my case with 2 different national firms and 1 local attorney. Got a good feel that I was on the right track with my case. Two wanted me to drop the DRO and go to BVA and the one local said she thought I would win at the DRO. She was right, all $$ issues from 2010 & 2012 NODs awarded 06/27/14. Saved myself the 20% of retro.

If you were to get the award you think you should, what size reto are you looking at. If your talking big $$, you won't have a problem getting the attorney's to want to sign you up. You can probably pull out how they would handle your appeal. The more information, the better your chances if you go it alone.

Adding or changing your original NOD Filing? It certainly can't hurt if your adding something than can actually help. Send it in as an addendum to Your orig NOD. I hope you asked for a DRO Personal Hearing. Remember, only those issues from the original decision that you disagreed with on your NOD Filing, will be addressed by the DRO.

Semper Fi

Gastone

Saltyham04 · January 14, 2015

^Gastone,

^{Thanks for the info. I did request a DRO and have talked to attorneys in the past. They all really seem to want my case which makes me confident I'm fighting the good fight.}

^I^{t was years ago when I first sought their help, maybe I will get a couple more consultations and see if I can pick up any helpful tips. I truly don't want to give up any of my retro, should I be lucky enough to help the VA see the light.}

^{I am only appealing the % of service connection at the effective date of my most recent rating. This is what the DRO can change, correct? I am pursuing all other claims and via other routes.}

^{Thanks again,}

^Salty

Berta · January 15, 2015

" Am I right to assume that this particular document is one of the first things an appeals person is going to read and that it should be concise and to the point? "

Yes, the NOD is one of the most important documents any claimant will ever have to file.

It is the first avenue of attack.

I feel a NOD should never be just a ballpark disagreement...it should tell the VA WHY their decision is wrong.And include evidence attached, to support the argument.

A lawyer's fee, (I think it is 20% of any award they helped garner) is a lot better than getting 100% of nothing with another denial.

"When the decision came down the VA once again(although not surprisingly) gave me an insultingly low rating for my neck and only back dated the effective date to the last claim I made in 2011. I filled a NOD and started the appeals process. I have years worth of denial letters referencing denials as far back as 1997"

You might sure need an independent medical opinion to bolster the rating.

An IMO doc will need to see those past claim results , all med recs, and all C & P results etc etc.

"When the decision came down the VA once again(although not surprisingly) gave me an insultingly low rating for my neck and only back dated the effective date to the last claim I made in 2011. I filled a NOD and started the appeals process. I have years worth of denial letters referencing denials as far back as 1997"

"He said the most important thing to do is to get the ball rolling by filling out a VA Form 21-0958, which we immediately did. He typed a very hurried synopsis of why I'm disagreeing, referencing random codes(USC 38, 1111 and CFR 38???), and mostly creating filler with misspelled words and a lack of punctuation.

He also went so far as to tell me that an illiterate narrative might actually help me with the raters." That is absolutely absurd.

Can you scan and attach the NOD he wrote here? Cover c file # name, etc prior to scanning it.)

How much time do you have left on the NOD deadline?

I would suggest that you try to amend the NOD but it would help if we could see what he wrote first....

I am not sure a NOD can be 'amended' but I agree that an Addendum to it can be filed. ...basically the same thing...

Gastone is right.

But maybe this is something a lawyer would want to prepare for you.

I definitely feel you will need an IMO ( and feel a lawyer would suggest that as well) and when this claim succeeds (hopefully it will) then you might have a basis for a CUE claims on the older denials, and thereby get a better EED.

Berta · January 15, 2015

Question Gastone or others, if a NOD is filed in timely fashion, does the year NOD deadline cover a NOD addendum as well?

I am not sure when the NOD cut off date was in this vet's case.

Saltyham04 · January 15, 2015

I don't have a scanner, but here is the narrative exactly as it's written on my NOD(all misspellings, punctual errors and omissions are as written):

"I Am In Receipt Of Your Rating Decision Dated 2-10-2014, I Thank You For You Efforts And Grant Of Rating Evaluation For My , Cervical Spine Odontiod Fracture W Ddd An Djd(Previously Status Post Cervical Trauma)

I Wish To File A Notice Of Disagreement With Your Rating Evaluation For; Cervical Spine Odontiod W Ddd And Djd(Previously Status Post Cervical Trauma) As I Am Entitle To A Much Higher Rating Evaluation Than You Have Currently Granted Me.

I Also Wish To File Of Notice Of Disagreeemnt On The Date Of Claim As I Filed This Claim In 1997 And Again In And It Was Turned Down As Your Provider Said It Was Less Likly Than Not Related To Muy Hummvee Roll Over Accident On Active Duty! How Ever You New Examiner Changed This To Likely Service Connected Which It Has Been Rightfully So Since It Happened.

I Cite Clear And Unmistakeable Errors As This Is The Exact Same Injury I Filed For On 6-18-1997, 01/2005, 6-14-2007, And Was Denied Every Time Simply Because Nobody Took The Time Or Effort Read My Medial Records In You Possession. You Va Acknowledge This Clear Unmistakeable Error/Relation Ship Between My Current Rating Evaluatiion And My Past Non Rating Evaluatioions By Stating "Previoysley Claimed As Status Post Cervical Trauma" Which Is What My Original Claim Was Filed As, On 6-19-1997

I Cite This Clear And Unmistakeabble Errorto Be Directly Linked To Your Failure To Adhere To The Rules Of Duty To Assist And Reasonable Doubt As Contained In Cfr38, And Usc 38, 1111, Presumtion Of Sound Condition

You Failed To Fully Develope My Claim And You Gave Me No Reasonable Doubt What So Ever! This Injury Is Noted In My Service Medical Records And You Completely Ignored This Fact, Period!

Incapacitatiting Episodes Are Constant And Get More Sever - Every Day Of My Life, 24/7, 365 Days A Year! There Is Not A Dat That This Injry Does Not Effect Me, My Actinos, And My Ability To Live A Full Life And Be A Productive Citizen,

Additional Information/Mnew And Material Evidence Will Be Submitted In The Near Future With A Rational As To Why I Beleive You Va Have Failed Me Greatly!

I Request A Decision Review Officer Review/Reconsider My Claim At This Time.