Writing The Nod

[jessie0054]

Hello:

I'm trying to start writing the NOD in my son's decision.

Do i enclude everything that we disagree with now ??

This could be a very long letter of disagreement.

Jessie

[Berta]

Jessie - I suggest that you state that you disagree with the entire decisions (if you do) or if not tell them specifically what you do disagree with- and tell them you fully intend to continue the appeal until the benefits sought by the veteran -are

granted.

Also if you want a DRO review you can ask for this in the NOD.

I suggest however that you try to make this as concise as possible on the first page.

You can add more pages- but the reality is they will read this as fast as they can-and what a vet can get on page one of anything is what will catch their attention.

I think my I-9 statement on page one of the I-9 helped me get a fast remand.

I expanded my appeal on other pages but right on the first page I mentioned the violations in established VA case law,and all of the unrefutable probative medical evidence they had failed to address,to include all of my submissions and two IMOs. I re-typed it until I could fit this all on the very first I-9 page where there isnt much room at all.

The BVA- upon receipt of my remand request and I had also obtained a third IMO-sent it all back to the VARO. It was obvious on page one -in one paragraph-of the I-9 what had happened.

I go to school. We are indoctrinated into an initial opening statement and subsequent paragraph that

supports a thesis topic. I applied that to everything I have sent to the VA because-

although I sent them plenty of evidence-

it appears they do not get beyond the first page-in many cases.In almost 4 years they have only mentioned

evidence in the first paragraph of one of my submissions of evidence.

Ever get a long email- that you dont want to read-

but if the first few sentences gain your attention- you might well read it all-

I feel the NOD can be expanded on and you can refer to and attach evidence they did not consider-but

still I think the first statements you make are what they will read and focus on.

A claim can turn around on an NOD.It has happened to me at least 3-4 times on personal issues.

It was the way it was presented in the NOD.And it was actually carefully read.

But these days they are often just breezing through them.

[jessie0054]

Jessie - I suggest that you state that you disagree with the entire decisions (if you do) or if not tell them specifically what you do disagree with- and tell them you fully intend to continue the appeal until the benefits sought by the veteran -are

granted.

Berta:

Thank You for your answer and suggestions!! I appreciate all the advice!!

On one other note.

My son had several conditions filed at once>

In the decision letter 2 of the conditions were deferred [ Residuals of Adenocarcinoma of the Appendix and his Bone Marrow disorder Polycythemia Vera]

It said they were deferred, But in the last pages of the decision it states.

A 0 percent evaluation is assigned for residuals of Adenocarcinoma of the appendix, S/P resection of the ascending Colon.

A 0 percent evaluation is assigned for Polycythemia Vera. This condition is described as stable, Requring only intermittent Phelebotomy. A noncompensable evaluation is assigned for polycythemia Vera that is in remission, Or is nor active. A higher evaluation of 10 percent is not warrented unless the active condition is stable, With or without continuous medication.

Does this mean that they went ahead and rated thses conditions??

In the decision letter it gives a 10 percent evaluation is assigned for DDD, Lumbar Spine. But goes on to describe forward flexion of the CERVICAL SPINE. ??? WHAT GIVES WITH THIS???

Jessie

[Berta]

Gee- that is a ridiculous decision-

I see exactly what you mean- if they deferred- it appears they rated anyhow ?????

And they sure don't know anatomy.

Lumbar is not cervical at all--

Do you have a vet rep?

I suggest- and maybe the vet rep would agree that you ask the VSM of the VARO by mail to clarify this decision as to the above points-maybe others will say what they think here?

This does not stop the clock on the NOD but I did this last year- they had one of my claims all mixed up-and it did help to clarify them all.I got a response within a month.

Do you have copy of the C & P report for the spine disability? The actual report might be much different in it's wording then what they said in the decision.

[jessie0054]

Gee- that is a ridiculous decision-

I see exactly what you mean- if they deferred- it appears they rated anyhow ?????

Thanks, Berta:

I thought might be a trick here?? Thinking that they were on deferred and that we might have missed the actual rating and not Nod these.

And they sure don't know anatomy.

Lumbar is not cervical at all--

Yea, I know!!

Do you have a vet rep?

Yes we have a service rep.

I suggest- and maybe the vet rep would agree that you ask the VSM of the VARO by mail to clarify this decision as to the above points-maybe others will say what they think here?

This does not stop the clock on the NOD but I did this last year- they had one of my claims all mixed up-and it did help to clarify them all.I got a response within a month.

So do i go ahead and write the NOD while we also ask them to Clarify the rating on the deferred??

Do you have copy of the C & P report for the spine disability? The actual report might be much different in it's wording then what they said in the decision.

Yes, I do have a copy of the C&P report. Although there is alot in the actual C&P report that needs to be addressed like he didn't do a ROM and in his words i quote " ROM was deffered as didn't want to cause a FLARE UP"

But he did service connect his Lumbar Conditions now to the 1991 Service Injury.

There is nothing about the Spinal Fusion and Internal Stabization with the steel plates and screws.

Jessie

[Berta]

I would do both- the NOD and a request for clarification-but if they reply- that could even change the way you prepare your NOD response so this is why I suggested the clarification letter first- But still- I think you should discuss that with the vet rep.

He might have a better idea of how to approach them on this-

Odd thing- I got two responses from the VSM when I wrote to her directly and never told my rep about it-

it seems whenever my reps got involved with anything to do with my claim, that is when it all got buggered.

Your vet rep might have a different way to get this resolved. He could suggest that you file for a reconsideration of the entire decision.When there are very obvious errors in a decisions like this one- that can often resolve the whole thing too.

I filed one a few months ago.

The statements they made regarding my CUE claims were so out of wack I asked for reconsideration and then told them exactly why their statements were wrong and sent copies of VA case law and OGC pres ops to support the request.They again started to work on these claims and they are with a rater.

Reconsideration requests should have the support of a vet rep.

They are appropriate when there is major factual error that VA states that seems a little beyond the normal VA way VA decides a claim.

However a Reconsideration request is not a formal NOD.

There are a few mentioned at the BVA.

"The Board may vacate an appellate decision at any time upon

request of the appellant or his or her representative, or on

the Board's own motion, when an appellant has been denied due

process of law or when benefits were allowed based on false

or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002);

38 C.F.R. § 20.904 (2005). "

from :

http://www.va.gov/vetapp06/files5/0630417.txt

"After the Board decision was issued, the

veteran requested reconsideration on the basis new medical

evidence that was not of record at the time of the May 2006

decision.

In light of the veteran's request and the additional

evidence, the Board will vacate the May 10, 2006, decision in

its entirety. Following entry of this order to vacate, the

Board will consider the issue on appeal and render a decision

as if the May 10, 2006, decision had never been issued"

Edited December 5, 2006 by Berta (see edit history)