Re-Writing Nod And Other Appeal Questions

[Saltyham04]

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

[Berta]

Here are some NOD links here:

(The VA now has a form for the NOD ,which you can use instead)

I have never used the form.

[FormerMember]

What rock did you find your VSO under? Why would you be arguing CUE in a live case where the decision was just announced? I could see the CUE after it was done and you failed to appeal but that is not the case here. Keep the addendum down to the facts and not your personal opinions. Cite which regulations were ignored. Cite what evidence was not considered. Ask for a new C&P as they normally look at the file and find the oldest, least offensive C&P to rate on.

You've really stepped in it so I'd strongly suggest a lawyer consult before you or the VSO turn it into hamburger helper. Always remember, you do not ask for a DRO review in a NOD. VA will always write back anyway and ask which path you want to choose. This tells you that they received the NOD as well. Best of Luck.

Edited January 15, 2015 by asknod

[Saltyham04]

My VSO did write the NOD. He said we could come back and change it any time!?!

He does not have a copy of my 1997 denial letter even though he said he's been doing everything he can to procure it. I just found out this week he has never ordered my C-file, which will supposedly contain that letter?

While I do have the decision letter I'm claiming CUE on it is already lumped in with my NOD so I guess I am going in the completely wrong direction thanks to inept VA representation.

How do I fix this? You say it will take some time and leg work, both of which I'm good at.

A lawyer looks better and better all of the time.

Thanks!

[Saltyham04]

asknod,

Thanks for your insight. It seems like I'm already in over my head. I'm going to go lawyer shopping. Any particular suggestions?

Would an email to this "Bob" guy help(yes, I know who Bob is, just wondering if that's a direction I might want to take)?

I'm very disappointed in my VSO and the VA for providing me with such a lousy representative. I truly believe that he has been doing everything he can to help me over all of these years. Lesson learned on my part, should have been more skeptical from the start.

Geez, this sucks. It seems like my VSO did just about everything wrong with my appeal as he possibly could have. Is there any VA recourse for having a terrible VSO?

Thanks again,

-Salty

[Buck52]

If a veteran files an NOD without indicating a DRO election, VA must write to the veteran, inform him of his options, and give him 60 days to respond. VA cannot work the appeal until they either receive a response or the 60 day response period has expired. If no response is receive, the appeal defaults to the Traditional process.

Appeals are controlled by the date of receipt of the NOD in a system called VACOLS (Veterans Appeals Control and Locator System). A single NOD may express disagreement the decisions rendered in a single Rating Decision, or it may express disagreement with decisions rendered in multiple Rating Decisions which have been issued in the prior year. There is no limit to the number of decisions or ratings with which the Veteran may disagree. There is also no limit to the number of NODs a veteran may have pending at any given time. A Veteran may also continue to file new claims while his appeal(s) pend.

However keep in mind the VA works the NOD that is the oldest they go from the oldest Nod to the Newest!