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On Notice Of Disagreement Should I Request Percentage Increases


knap-sack

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17 answers to this question

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knap-sack,

As long as you used the Schedule of Ratings in 38 CFR part 4 for each of your claimed medical conditions and matched your symptoms with the symptoms listed in the appropriate percentage level for each claimed medical condition, you should win your NOD if your medical and other evidence confirmed your diagnosis, symptoms and nexus to your military service. JMO

GP

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The only thing I can add is, your wording. I personally would say something like " I agree with the oo/oo/15 award of SC for my ?? Condition. However I disagree with the Disability % assigned. I believe my DX and Symptoms when compared to the 38 CFR 4 rating criteria more closely qualify for a Minimum Rating of ??SC," or something to that affect.

Your filing your NOD, are you going BVA or the DRO Hearing route? With the DRO, you must have "New & Material Evidence" that was never available to the original Rater. Without the N&M Evidence you probably are doomed to a continuance of the original SC %.

Semper Fi

Gastone

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Don't ever request a percentage outright. If you do you risk lowballing yourself.

What should be done is to state the following. I should be rated at the highest percentage listed in the title 38 CFR part 4 as it applies to my disability issues.

Basser

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Don't ever request a percentage outright. If you do you risk lowballing yourself.

What should be done is to state the following. I should be rated at the highest percentage listed in the title 38 CFR part 4 as it applies to my disability issues.

Basser

I actually did that just being humble about getting any rating.. I had to withdraw that NOD and start all over

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I heartily agree with Basser. Telling the VA what percentage you want is like telling a car salesman what you're willing to pay for a car you fancy before you know what the sticker says. You could be significantly off the mark to your disadvantage. The VA knows two things in this regard:

1) You are not a doctor, therefore you cannot diagnose either the existence of a disabling condition, or the level of its severity. They remind us of this all the time when it's convenient for them to deny evidence like personal narratives from the veteran, from relatives and buddy statements as "not credible" because they are lay persons not professionally trained to evaluate medical conditions. Therefore, the percentage to which you think you're entitled is irrelevant and the question, I would argue, is to bait you into a lowball ratings trap or a denial outright, and

2) The VA is obligated to give you the highest rating justified by the evidence. It must explain, in detail ( and this is what they often fail to do in detail, instead making bald conclusions without using the word "because" or its equivalent addressing the evidence), why the evidence doesn't support a higher rating. It's all about the evidence and the weight given it.

Don't get sucked into that trap, Basser is quite right.

Edited by lotzaspotz (see edit history)
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Personally, I submit a request for the highest rating allowed with a copy of my current

specific medical evidence that supports it along with a copy of the schedule

(part 4 38 CFR) that it relates to.

I like to try and make their work flow easier so for me personally, this has always helped

advance my issues.

jmho

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georgiapapa, on 02 Mar 2015 - 8:22 PM, said:

knap-sack,

As long as you used the Schedule of Ratings in 38 CFR part 4 for each of your claimed medical conditions and matched your symptoms with the symptoms listed in the appropriate percentage level for each claimed medical condition, you should win your NOD if your medical and other evidence confirmed your diagnosis, symptoms and nexus to your military service. JMO

GP

GP I did use the 38 CFR part 4 and I used previous dockets of winning claims which I believe resembled my conditions. They gave me 10% on my dominant hand and denied my wrist loss of ROM and arthritis in both hand and wrist and loss of strength in hand. I found on 38 CFR part 4 that I was entitled to 30% for hand and 40% for wrist to the best of my knowledge. But their were still questions in my mind about nerve damage that I did not identify but was identified on loss of sensation in fingers in the new and material evidence I sent in. I have all this documented as new and material evidence since I got new evidence after the claim was service connected for 10%. GP

Gastone, on 02 Mar 2015 - 9:05 PM, said:

The only thing I can add is, your wording. I personally would say something like " I agree with the oo/oo/15 award of SC for my ?? Condition. However I disagree with the Disability % assigned. I believe my DX and Symptoms when compared to the 38 CFR 4 rating criteria more closely qualify for a Minimum Rating of ??SC," or something to that affect.

Your filing your NOD, are you going BVA or the DRO Hearing route? With the DRO, you must have "New & Material Evidence" that was never available to the original Rater. Without the N&M Evidence you probably are doomed to a continuance of the original SC %.

Semper Fi

Gastone

Gastone I sent in a copy of the CFR 38 part 4 and highlighted in yellow highlighter the parts of the CFR that pertain to my new and material evidence. They have not sent me any correspondence since I sent in NOD. But from everything I have read I will request a DRO informal hearing.

marine0816, on 02 Mar 2015 - 10:01 PM, said:

I'm shooting for 100% so I don't mind paying 20% for professional help as long as I win in the end. Good luck on your appeal..


New and Material Evidence
https://www.law.cornell.edu/cfr/text/38/3.156

Marine I labored over hiring an attorney but Its been 50/50 in my lifetime with them as being either really good or really bad. I let the VSO do my first claim and I was seriously lowballed as you can see the difference between 10% and 70% and it took a year for the claim to be adjudicated. I did my own claim for the PTSD and they awarded 50% in less than 90 days from from when I submitted claim.


jbasser, on 03 Mar 2015 - 12:40 AM, said:

Don't ever request a percentage outright. If you do you risk lowballing yourself.

What should be done is to state the following. I should be rated at the highest percentage listed in the title 38 CFR part 4 as it applies to my disability issues.

Basser

jbasser I wish I would have put that in there hindsight being 20/20.

lotzaspotz, on 03 Mar 2015 - 08:07 AM, said:

I heartily agree with Basser. Telling the VA what percentage you want is like telling a car salesman what you're willing to pay for a car you fancy before you know what the sticker says. You could be significantly off the mark to your disadvantage. The VA knows two things in this regard:

1) You are not a doctor, therefore you cannot diagnose either the existence of a disabling condition, or the level of its severity. They remind us of this all the time when it's convenient for them to deny evidence like personal narratives from the veteran, from relatives and buddy statements as "not credible" because they are lay persons not professionally trained to evaluate medical conditions. Therefore, the percentage to which you think you're entitled is irrelevant and the question, I would argue, is to bait you into a lowball ratings trap or a denial outright, and

2) The VA is obligated to give you the highest rating justified by the evidence. It must explain, in detail ( and this is what they often fail to do in detail, instead making bald conclusions without using the word "because" or its equivalent addressing the evidence), why the evidence doesn't support a higher rating. It's all about the evidence and the weight given it.

Don't get sucked into that trap, Basser is quite right.

lotzaspotz, I agree 100% I am so overwhelmed with the medical terminology, I have a friend who is a General Practitioner and it was over his head, I bought medical books believe it or not at a garage sale from a retired nurse and I had to learn what all this stuff meant. I have a condition that's called tendon tie-up, which there are like sleeves in my fingers that the tendon slides through, well since my tendons were reconnected with sutures they can slide through the sleeves so that is where I lost my mobility in my wrist.. More than you wanted to know and to be honest more than I wanted to know but I have been forced to learn this. I could go on and on why but it only upsets me.

carlie, on 03 Mar 2015 - 4:48 PM, said:

Personally, I submit a request for the highest rating allowed with a copy of my current

specific medical evidence that supports it along with a copy of the schedule

(part 4 38 CFR) that it relates to.

I like to try and make their work flow easier so for me personally, this has always helped

advance my issues.

jmho

carlie thats what I did I scavenged everything I could. When I first applied the VSO said we used to be able to put this on a napkin and submit it. He was from the school less was best. I have learned a lot here since then.

broncovet, on 03 Mar 2015 - 4:58 PM, said:

This is one reason many Vets dont like VA's NOD form.

Its like the VA is saying:

"Please lowball yourself so we dont have to."

broncovet I agree with you also it wore me out, I really did not want to put the percentage amount on NOD but I read somewhere in the VA instructions to put it on there.

Is it possible that this could be decided at VARO from my original rater?

I feel sorry for the RO because of my VSO only put a couple sentences and sent it in on original claim, they had no current information about my condition today that have now and sent in with all the new and material evidence on NOD. I had a boatload of new evidence that the first RO never saw.

When I put the percentage it was from dockets that I researched that had similar injury's and loss in hand and wrist. I just hope this don't pigeonhole me into a long drawn out appeal which the VSO warned me could be years.

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Knap: I sorta agree with everyone's postings, including yours. In 2010 when I filed my 1st NOD from an 08 claim denied in 09, as I recall I read NOD advice indicating you should tell the VA what and why you should have been rated at minimum of a certain SC % based on the 38 CFR 4 Schedule. As to you having to state the obvious in your NOD as to you wanting the Highest SC % rating that your qualified for, really? I have to defer to Nod, Berta or Carlie for the exact VA Reg Wording but here's the Readers Digest version. VA regs stipulate that anytime a Vet files a Comp claim for a New or Increased rating, the Vet is asking for the most he can get, even if the Vet doesn't ask for the Kitchen Sink. This includes any SC issue that is found to be associated with your original claim even if you didn't mention the condition and might not be aware that it is Service Connectible as a Primary or Secondary issue. As long as the Vet is filing or appealing Pro Se (with or without VSO-Rep) the whole process is supposed to be conducted in a non-adversarial way. The Vet is supposed to get the Benefit of Doubt Doctrine" in any Jump Ball situations. I think by pointing out exactly why you think the rating was in error and specifically point to what you believe is the Minimum rating per the 38 CFR 4, based on your "Lay" interpretation of the code, puts the rating dept on notice that your not basing your NOD on FEELINGS. Is the VA Rater just sitting there waiting to Bone you with a low Rating? I choose to believe that to be the exception rather than the rule.

As to the requesting a DRO Informal Hearing with your NOD. I don't think you can. It's either a DRO Review or a DRO Formal Hearing recorded and transcribe. My DRO said I could have Formal or Informal Hearing after I asked about my 02/14 request for a "DRO Informal Conference" to discuss evidence. I just sent that request in because of not hearing or seeing any movement on my 2010 NOD filing. Keep in mind any New & Material Evidence submitted to your VARO since your rating Letter date should trigger the VARO Automatic Review of your original award by a Senior Rater or actual DRO with deference being given to the original Rater's Decision. If your Evidence is compelling, you could get the Increase without having to wait the 2+++years for a DRO Hearing. I think BVA's were running 4++yrs on average thru 2014.

Semper Fi

Gastone

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Thank you Gastone, my primary care physician took all of three seconds and said thats at least thirty percent. And he's right the hand alone is thirty percent. But what you cant see is loss of rom in wrist and thats forty percent.

My primary care physician sent me for x-rays and MRI. And a physical therapist that measured hand and wrist joint loss of rom. All this evidence was sent in with my nod. The va hospital really checked me out lab tests for arthritis it was incredible how helpful they were. They gave me inflammation reducer pain meds. Like I said before the va I have no complaints about the hospital. The RO did not havve this information on my intial cliam.

The older I get the worse the wrist and hand have become. This cold weather makes it worse by ten fold. I believe if the orginal ro sees this new evidence they will grant higher percentage or even a dro review.

I almost sent pictures.

My orginal c&p. On my hand. She said get medical documentation and resubmit for reconsideration. It took almost 8 months but I got it in before the year was up.

Heres the kicker, WHEN I was in recovery six months of rehab they never measured my loss of strength loss of rom. I was fixed up and rushed back to duty. Just typing what I did here I had to stop four times to rest hand.

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