Rating Percentage Request on NOD

[az arr]

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?   

 

 

[Gastone]

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

[Buck52]

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.

[az arr]

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.  

[sixthscents]

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 July 25, 2017 by sixthscents

[az arr]

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. 

 

 

 

 

[broncovet]

The regulations state the examiner must be "competent" in his field.  It does not necessarily mean a doctor, but your doctor making said opinion should have training and or medical experience in your disability sought.  The VA often uses nurse practioners, nurses, heck they may even use a janitor to do a c and p exam.  You see, the examiner is presumed to be competent, absent a challenge from the Veteran or his representative.  

Often, the examiner is unqualified.  I had a MD give me an exam for sleep apne..and the examiner had no experience or training in sleep medicine.  I did challenge the exam, but am waiting on results.  The examiner admitted to not being familiar with sleep medicine, but said my sleep apnea was not due to service anyway.