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NOD - Not Always a Good Idea- Maybe a bit Risky?


rootbeer22

Question

Vets:

 

Recently, I read where someone filed an NOD and their TBI was reduced from 10% to 0% but they got an increase in their PTSD? So, I'm wondering if this happens a lot where a Vet's claims contentions are actually reduced after their NOD/DRO reviews?  I worked very hard to get to 90% that I'm at now. I'm trying to get pushed over to 100% but am concerned about it actually being cut? However, maybe that was just a rare occasion....and I should not be concerned?

Does anyone know if this happens very often where a reduction occurs or not?

Godspeed Rootbeer22

 

 

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  • HadIt.com Elder

Any time you ask for "More" it is like the scene in Oliver Twist where he asks for more gruel as he is starving and hungry.   All hell breaks loose.  Any time you appeal a VA decision it might not go so well for you, but if I had a solid claim I would go ahead.  If my claim were iffy I would just hold off until I had solid evidence. If you got 100% rating what would it mean in dollars for you?  That is the only question that counts.

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At 90% SC, you need way more than a "Push."  If your under 55, NOD or not, your C-File is "Diary Dated" to be reviewed every 18 to 24 or so months, for a possible re-evaluation.

In your Lay opinion, have any of your current SC's improved, worsened or remained static?

How many of your SC's are listed as Chronic with no expectation of improvement based on time or treatment? MH SC's prior to 55, are seldom deemed T & P No Future Exam. Think "Job Security," VA as well as private MH Clinicians believe just about all MH problems are improvable, with time and treatment.

As to the Re-Exam/Revaluation with a NOD, without the NOD, your claim and any chance of Retro, DIES with the 12 month Expiration Date. Run the numbers$$, decision should be easy.

Semper Fi

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Gastone:

As always, thanks for your terrific input. I turned 55 a few months ago and my current records show that many of my conditions have worsened. Early in my career, I was in a terrible Army Tank Accident and my spine has a lot of metal to keep it together and is pretty damaged. Also, 2 years later I was involved with a traumatic Tank  explosion where I was knocked out and blown-off my feet and suffered a concussion. I believe many of my contentions were rated either 0 or 10% and most could have been at the next levels but as you know,  it's seems customary to low-ball vet's on their claims. I see a regular doctor every month and a very prominent pain specialist every 6 months. That said, I was very fortunate that a large portion of my contentions have been service connected during my first disability claim and also I was recently granted 10% for TBI. The TBI doctors were supportive but the main doctor opined  that my memory, concentration and cognitive  symptoms are mild and therefore assigned me a TBI SC of 10%. But currently, I'm getting statements from my last three bosses for my NOD that demonstrate further that my work has been adversely affected by this TBI to show that connection. Consequently, there are about 7 or 8 of my contentions that could be bumped up with the evidence that I have. One of my main challenges is that a large percentage of my SMR records are handwritten and having the raters to decipher them properly has been really tough. For instance, I was service connected for Hypertensive Heart Disease at 10%, but they said because I did not complain of angina or chest pain that it was only 10% and not 20%. However, those complaints were clearly in my records multiple times and they missed it. I also clearly put that in my QTC Pre-Exam for the Heart Disease issues but they did not cite that during the CP exam results. However, I've waited for over 10 months for my C-File that would clearly show that but it does not look like the C-file will be a factor unless it shows up. If I had the QTC exams, so I could challenge them it would be a no brainer..to get some of the contentions upgraded.

Anyway, I'm putting together the NOD Package now and asking for a DRO Review, so maybe it will be enough to get to 100%..only time will tell?

Thanks Again...and Godspeed to you..

 

 

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Best of luck Rootbeer, Keep the faith and the persistence up man!!!

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Rootbeer;

Have you ever gotten your code sheet?  I just put a thread on here today that is of some good info.  I found out that all of my disabilities but ONE are "static".  

Also, are you 90% by way of 94/93/92/91% rounded down or 85/86/87/89% rounded up?  The reason I ask is the fact that getting to 100% is about 50-60% more disabilities to qualify you for 100% if you are at the lower end of 90%.  Look at the CFR table I am providing.  Take your disabilities as it indicates and see where you are on the chart.  Some times rocking the boat is not worth it.

The post you are referring to, here it is below, the OP indicated they filed for an INC to PTSD and their TBI was decreased.  It can happen b/c when you file for INC on any of your contentions, all contentions can come into question.

 

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"Fear of reducing your rating" is a tactic used by VSO's and RO's alike to prevent Veterans from getting the benefits they deserve.  

Unfortuantely, the VA snares far too many victims in this trap.  

If you review carefully the criteria for reducing your rating, you will find nothing anything close to:

"When ever the Veteran requests an increase, always reduce him instead."  Wrong.  

38 CFR 3.105(e) and 38 CFR 3.144 govern reductions:

(e) Reduction in evaluation—compensation. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

 

and

3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.
(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, §3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.
(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

end regulation quotes.  

As you can see, there is nothing that indicates a Veteran can be reduced for applying for an increase.  Its hogwash.  VA can reduce you, or sever service connection only when you meet the applicable criteria, and this is independent of whether or not you apply for an increase.  

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