NOD or Reconsideration

[add55p]

All

Please provide your thoughts and/or recommendations on the following situation..

The veteran had his private care physician examine him and complete a thoracolumbar DBQ for his claim for a lumbar condition.

15A. DOES THE VETERAN HAVE IVDS OF THE THORACOLUMBAR SPINE? Treating PCP answered YES

15B.    15B  IF YES TO QUESTION 15A ABOVE, HAS THE VETERAN HAD ANY INCAPACITATING EPISODES(a period of acute signs and symptoms

due to IVDS  that requires bed rest prescribed by a physician and treatment by a physician) OVER THE PAST 12 MONTHS?  Treating PCP answered YES

15C. IF YES TO QUESTION 15B ABOVE, PROVIDE THE TOTAL DURATION OF ALL INCAPACITATING EPISODES OVER THE PAST 12 MONTHS: Treating PCP checked the "At Least Six Weeks" box.

The veteran sent in copies of all of the incapacitating episodes that was prescribed by his treating physician that supported just over six weeks of incapacitating episodes along with copies of medication prescriptions to support long term treatment..

VA denied the claim for increase because the Veteran´s multiple incapacitating episodes did not specifically state "BED REST" on the form.

Based on the box checked Yes in 15B on the questionnaire by his treating physician, he plans to submit either a notice of disagreement or a request for reconsideration. He stated that he has an appointment with his treating physician and will ask if the physician could write a support letter stating that "based on his answer to question 15B of the Thoracolumbar examination, supports that I ordered bed rest when prescribing the veteran with bed rest". 

The veteran understands that this claim will more than likely end up at the BVA or higher.

Personally; I understand the rater and requiring that bed rest be on the prescribed incapacitating episodes, however, if the treating physician who prescribed the weeks of incapacitating episodes states in box 15B that the episodes required bed rest, the veteran should have at least received the benefit of doubt..

Thank you in advance..

Add

[broncovet]

If you have inaccurate/incomplete records, you should ask them to be changed:

§ 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

 

However, if you have "new and material evidence", such as another exam not in VA's possesion, then you should submit that evidence under 38 CFR 3.156.