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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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az arr

Rating Percentage Request on NOD

Question

I filed an appeal (NOD) requesting a DRO review. One of the questions on the NOD asks "Percentage (%) evaluation sought, if known."   If I list a number, am I bound to that number, or can the rater give more (I evaluated myself on ROM% ignoring other factors discussed)?  

 

Do I file an "amendment" to my claim requesting more, or if the rater gives  me the percentage that I requested, should I file a subsequent appeal asking the number to be adjusted (retroactive?) based on the higher percentage?   

 

 

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Don't worry about it, the 38 CFR 4 used by the Rater determines your SC %. When a Vet files the initial Comp Claim, the VA Rater takes for granted that the Vet is looking for the highest SC Rating that he qualifies for.

You decided on a DRO Review rather than a DRO Hearing, why?

Have you submitted the VA Mandatory post Decision New & Material Evidence that was not available for the original Rater's Review? Failure to do so would result in an Administrative Denial of your Appeal.

Semper Fi

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I agree with Gastone but I  would sure remind them about the CFR 38 4 or state that my disability be rated to the fullest allowed by CFR law.

Even though the raters have a rating manual to go by for the correct % of the disability and in accordance with the degree  or symptoms of the disability.

AS Gastone mention those raters do take things for granted some times.

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Thank you both for responding.

To answer your questions:  

a.)  Why DRO review vs. DRO hearing?  Good question, until I saw your post, I did not know there was a difference.  I thought, maybe wrongfully so, if the reviewer had any questions, he or she would have called or written.  Also, my initial claim was denied (properly so) because, I did not demonstrate chronicity (sp). But see b.) below.

b.) Did I submit N&M evidence for the DRO review? Yes, I provided an affidavit re: shoulder issues since my discharge; and I presented an objective report from a medical professional listing limitations of my shoulder.  

 

To expand, why did not I include the statement and medical report in my initial claim?  I filed the claim and thought the VA would order a C&P exam, at which time I would present the evidence to the examiner.  The VA did not order an exam, and the claim was denied (rightfully so). I appealed providing N&M evidence and asking for a C&P exam.  I requested a number for disability; however, upon reading my medical report and discussing with my doctor again, he thought I should have sought the higher number based on his findings and report. So, am I limited to the number requested (based on ROM) or can the rater give a higher number based on the medical report?  

It should be noted, that the C&P exam by the VA has not been ordered and ebenefits shows (I know, don't trust ebenefits) that the claim is now in PFD slightly more than 5 months after filing the NOD.  

 

As an aside, I did not appoint a VSO (again, did not know about this option until reading this board).    

 

Again, thank you for taking the time to read and respond.  

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az arr,

     Buck52 is correct in that it would not hurt to state that you are seeking the maximum allowable by CFR 38. I would not personally state a specific percentage, but if you have done so it is not something to worry about. The rater/reviewer will follow the guidelines established and the metric the VA uses. You can see exactly how they do this by reading M21-1. You can find it here:

 https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#!portal/554400000001018/topic/554400000004210/M21-1-Adjudication-Procedures-Manual

     In the future, if you think the VA should schedule a C&P exam or are requesting one, actually put that into your claim. Never assume anything with the VA. You can find more information about the appeals process here:

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#!portal/554400000001018/article/554400000014081/M21-1-Part-I-Chapter-5-Section-A-General-Information-on-Appeals

     If I may ask, how firm were you when asking for a C&P exam? Did you say something like, "Please consider this a formal request for a VA C&P exam to confirm the findings of Dr... etc" or was it softer or unclear in any way? I mean the VA can deny a C&P exam, however it is not something I have seen often. I have been away from this stuff for quite some time, but I haven't heard anything about that changing.

     In any case I really really recommend that you review CFR 38 (personally I read it almost in it's entirety many times) and M21-1 and M27-1. Knowledge is power in a very literal sense here.

Best of Luck,

Six

Edited by sixthscents

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Thank you for responding.  To answer your question as to my request for a C&P - here is the quote from my NOD "Prior to denying the claim, the VA should send the claimant to a C&P exam."  That was the last sentence in the request for relief.  

 

It is somewhat concerning to me as the medical evidence I provided was not on a DBQ and was from a doctor of physical therapy (not an MD or DO). The doctor tested my ROM, but the VA's regs say the instrument MUST be used: he did not use the instrument (however, good medical professionals can "eyeball" it as well as an instrument can measure).  

 

For all I know, the VA might reject it on no service connection (which the C&P will not fix).  I don't know how or why the VA would deny on that bases (except I have been out of the Navy for over 20  years).   Who knows, I will have to wait and see, it has been PFD for 4 weeks today. 

 

Again, thank you for your time and for the references. 

 

 

 

 

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