little help filling out a NOD

[usmc3073]

My question is should is there any magic VA language I need to include on here so I don't screw myself.  Box 12A seems like a loaded question to me.. "explain why you feel we incorectly decided your claim and list any disareement not covered".   

If I put anything in here they will than use it against me right?. I selected a DRO review, and there is a spot to request the regional office to call me.  Should I use this option? If so what would be Important to speak to them about. If I do speak with someone who will it be, and will they use that information against me.

Thanks for the help!

[MCCFR97]

When I did mine a couple months back I made that box short and to the point. "I feel the VA is wrong denying my claim for cancer and this is based on my contact with chemicals in the Marines, specifically benzene and TCE's. And that was it. I also included a more detailed statement with my N&M (SA).

i also included the checked the box if the regional office wanted to call me, but they never did. When I won my claim I just got a call at 0730 from the DAV saying I was good and my claim was approved. Never even saw a DRO. So if they want to call because the have questions then fine, otherwise I believe it says if the DRO needs more evidence or has questions he MAY have a hearing. Doesn't mean it's going to happen and in my case that was not such a bad thing. What are you claiming?

there are others on here that are way more knowledgeable than me so I'm sure they will chime in. I can only speak from my own experience.

[broncovet]

You should do a good job answering this question.  To do this, I recommend refuting, if possible, the reasons and bases for decison.  What were their reasons?  

Did you have a valid nexus?  Current diagnosis?  In service event or aggravation?  Or, were you awarded SC and dispute the percentage?  

If you dispute one of these Hickson Elements, then cite the date of the exam which gave, for example, your nexus.  Sample:

I disagree with the RO decision for all the following reasons:

1.  Ro Decision "reasons and bases" stated there was no evidence in the file linking sleep apnea to service.  However, on a medical exam dated 10-13-2007, Dr. Bonnett a board certified sleep specialist opined that my sleep apnea was "the result of" (SC) depression, and even gave a Beck scale index of depression.  

2.  The RO decision failed to explain why the Veteran favorable evidence, cited above, was not considered. This is a Colvin Derwinski violation in that the RO must explain why favorable evidence is not considered.  

3.  Further, the Veteran herewith challenges the competency of the medical examiner on the C and P exam dated April 4, 2015, as this examiner admitted to me she did not regurarly treat and was not trained in sleep medicine.  While this examiner was an MD, this examiner needs to have training or experience in sleep medicine to render a competent opinion.  She had neither.  Therefore, I challenge this examiner credentials and request a CV of this examiner for inspection on the record before agency.  

    Since the only competent medical evidence, Dr. Bonnet, shows the Veterans sleep apnea was a result of SC depression, the Regional office gave no reasons and bases as to why secondary SC was not awarded.  

[usmc3073]

thank you for replies.

I filled out the form, and Requested a DRO review.. I wrote a letter disputed the C&P exam and asked for a new one.. I also asked VA to reconsider my claim as a new claim not a secondary.. I believe this is where all my problems are stemming from..  I did not fully understand how secondary claims work when I filed.. Had I filed it as a new claim I believe with the evidence I had I would win.

I hope this can be sorted at the regional level, and they will simply rerate the claim as a new claim with the evidence I already submitted.

[Navy4life]

When I prepared my NOD, I used the below information.....

What Not to Include in the NOD

It is frustrating to receive a denial from the VA, and you may be tempted to point out to the agency why you feel the decision is wrong. Be cautious, however. It is best not to go into any detail about why you disagree with the decision in the NOD. You will have a chance to tell the VA why you think the decision is wrong, but the NOD is not the place to do that.

The purpose of the NOD is to preserve your right to appeal all of the errors in the VA's decision denying you benefits. If you get into specifics, this will limit your right to appeal issues that you haven’t mentioned or may not even be aware of. Specifically, if you neglect to mention an issue in the NOD, to have those issues reconsidered in the appeal, you will have to produce new material evidence or show that the VA made a clear and unmistakable legal error. To avoid the possibility of having to start over by filing a brand new claim, keep the NOD general.

What to State in Your NOD

Make your NOD statement simple by stating that you disagree with all of the decisions in the VA denial letter and ratings decision and that you wish to appeal those decisions.

• Write notice of disagreement at the top of Form 21-4138 or your letter.
• Include the date of the denial letter and ratings decision.
• State that you disagree with the denial letter and ratings decision.
• State that you intend to appeal.

If you decide to list specific decisions that you disagree with, make sure you tell the VA it isn’t an exhaustive list. State that your disagreement includes those issues you’ve listed but is not limited to them, and that you disagree with all of the decisions in the VA denial letter and ratings decision.

[broncovet]

With all due respect, Navy, I disagree that the NOD is "not the place" to bring up to VA why you think you deserve a higher rating, service connection, or eed.

The NOD needs to be filed on the prescribed form:

http://www.vba.va.gov/pubs/forms/VBA-21-0958-ARE.pdf

Fill it on the above VA approved form, NOT on the 21-4138.  There was a memo which explained that VEts must use the prescribed form sometime last year.  Read about it on the Directions for filling out the NOD by following the link above.  

Instead, the NOD is the perfect time and place to present all your reasons (that is, your arguements) for a higher rating.  

If you dont bring up that issue at the NOD, when should you do it?  In the I9?  The I9 comes, remember, after the SOC and this means after a DRO denial.  Maybe the DRO would agree with you?  

Here is why I like bringing up and detailing your issues with the NOD:

1.  Most importantly, if you do it "later" then this "later" document can get lost or not read. (Often).  Its hard for the BVA to say, "he did not raise the issue of .......", when that was detailed in your NOD.    Or, maybe you just forget to do it later, and expect a rating specialist to look out for your interests and "discover" why you should be rated higher.  If you dont know why you deserve  a higher rating, then how would a decision maker supposed to know this??  You know more about your claim and your history than anyone else.   

2.  As one attorney put it, "I never turn down an opportunity to present my clients best arguements to win."  You may not get a better chance, later.  Remember, you are representing yourself when you file your NOD.  If you make mistakes in your nod, the attorney can likely fix them, unless you dont raise the issue and the appeal period expires.   

3.  THIS (the nod)  IS your chance.  Sure, you can "punt" and try again later, but why not now?  If you procrastinate your own case, then why should VA want to hurry it up?  The unseen opponent here is "time".  If you die in appeals, then VA wins (except for the unusual circumstance when our spouse files a substitution and continues...and do you expect her to know why you deserve a higher rating, when you did not know this?) 

4.  Dont wait for next year or even next month.  Chances are not good you will be healthier and think clearer  then than you are now.  

5.  When would you like to get the benefits sought on appeal?  Later, or ASAP?  By delaying giving the reasons you deserve a higher rating, you are saying, "Please delay my appeal until I get around to sending you the real reasons for appeal, as I dont know what those reasons are yet."    

 

    IF you feel any better, my old VSO did just like you suggested.  He filed a nod for me something like:

I disagree with the decision on issues 1,2, 5, and 6 and request a DRO review.

signed.. IMa VSO for the VEt.  

He never did give any reasons..even tho I sent emails to the VSO detailing why the decision was wrong and why I deserved a higher rating.  It was quickly denied, and I fired the VSO.  

Edited March 30, 2016 by broncovet

[Navy4life]

Well I used what I put above and it worked out for me and I think we are on a difference of opinions BroncoVet.  

The NOD is to simply provide the disagreement with the denial and then prepare for the DRO review hearing.  The biggest misconception by Vet's is the fact that most do NOT put that they want a "DRO review hearing" on their NOD.  That right there is a HUGE error by any Vet!  The fact that they miss that one sentence could be a major issue for the NOD.  If the NOD is well noted that the Vet would like an IN PERSON hearing and be able to provide his/her entire case before the DRO hearing officer.  

What i have seen as a trending pattern with NOD's is the fact that the Vet FAILS to ask for the DRO hearing in his/her NOD and thus the NOD is reviewed by a DRO and the Vet never gets a chance to speak their case.  The SOC/I9 are sent out and the Vet is left with having to go to an appeal process higher up with years upon years of waiting.

The NOD is a valuable tool for the Vet to speak their concerns I AGREE but not the place to fully contest the prior rating/rater.  It is a form that should be used to point out the errors and allow the DRO to see their are errors and give the Vet a chance to prove those errors in the hearing.

Too many NOD's are filled out inaccurately and that is where the problem lies.

Again, I used what I posted as my guideline for my NOD.  I had my chance to come face to face with DRO.  I think there are a lot of good suggestions and I think mine is one of them.  Your suggestion is just as valuable.

The NOD does allow the DRO a new look, at least that is what is supposed to happen.  The latin word "De Novo"....