Question about Appeal NOD

[Wjason777]

Been trying to get a straight answer to this but no one seems to know. Maybe you guys can shed some light on this and what I should do.

I Recently won an appeal for Headaches and TMJ. I originally filed back in 2010. Since 2010 I've been having multiple symptoms of these conditions. In June 2018 I received the case decision letter in the mail. I was granted 30% for tmj backdating to 2015-2016. and 10% from 2016 to present. I didn't receive any back pay because the BVA altered my dates so it wouldn't be any backpay even though I've been treated for these conditions since 2010. 

My question is, can I file for a NOD asking for a DRO to take a look at this, along with a sworn declaration explaining whats going on and why I think these conditions should be backdated to 2010, not 2016?

If I did my math right it would be a backpay of well over $100k.

 

 

 

Edited July 12, 2018 by Wjason777

[Vync]

Your effective date of SC was 2010, but you received a 0% rating at that time. An increase was granted in 2015.

Here's the big question: Did you keep your appeal alive/active from 2010 through 2015?

If you answer YES, then it would be worth getting every medical/dental record during that time which shows your ROM met 10% or higher rating criteria under 9905. You could file said evidence as a reconsideration, but if the VA fails to act on it within 12 months, you would need to convert that to a NOD before the 12 months are up. A DRO is also an option, but that's up to you. I had a great DRO experience because I was very well prepared, but not everyone has that. They just take a fresh look at everything.

If you answer NO, then I assume you filed for an increase in 2015 and was granted. If this was the case, then your rating would be considered a proper increase. With requests for increases, you can use evidence from the 12 calendar months prior to when you requested the increase. The effective date of the increase would be within that window if you met the criteria,

 

 

[Wjason777]

9 minutes ago, Vync said:

Your effective date of SC was 2010, but you received a 0% rating at that time. An increase was granted in 2015.

Here's the big question: Did you keep your appeal alive/active from 2010 through 2015?

If you answer YES, then it would be worth getting every medical/dental record during that time which shows your ROM met 10% or higher rating criteria under 9905. You could file said evidence as a reconsideration, but if the VA fails to act on it within 12 months, you would need to convert that to a NOD before the 12 months are up. A DRO is also an option, but that's up to you. I had a great DRO experience because I was very well prepared, but not everyone has that. They just take a fresh look at everything.

If you answer NO, then I assume you filed for an increase in 2015 and was granted. If this was the case, then your rating would be considered a proper increase. With requests for increases, you can use evidence from the 12 calendar months prior to when you requested the increase. The effective date of the increase would be within that window if you met the criteria,

 

 

My appeal was closed due to failure to response to Statement of the case with 90 days of letter. 

Which I did and I have proof ( signed recipe and tracking number which was printed at the bottom of paper )

So I had to prove I did and it took a while for them to reopen my case.  So this is why I think something is wrong with the effective dates. Plus if you read the letter that I posted it says I have records and exams dating back to  2010. The problem was just as serve as it is now then back in 2010. That’s why I filed. 

I know for a fact that I have records that goes back to at least 2013 of me being seen and treated for tmj. These condionts started while I was Active duty. 

Can I write a sworn declaration stating all of this for proof if I don’t have anything else to submit for 2010 to 2012?

[Vync]

The key component of rating TMJ claims is range of motion. If you can show your ROM was as bad then as is now, via medical/dental records showing ROM, that would be the key focus. With ROM ratings, they are supposed to include two factors. The first is max ROM. This is the most common. However, due to the DeLuca ruling, they must also factor in where pain began when repetitions of movement are made. For example, if your max ROM was 42 mm, that would be 0% under TMJ criteria. However, if the pain began at 26%, the rating should have been 20%. These are very important because the VA often overlooks them. That's why I recommend you go back and double-check. If the proof is there that the VA screwed up, find it and spoon feed it to them. Don't count on them to magically find it. 

The reason why your rating % changed over time is due to what the VA calls staged ratings. It varies the rating based on differing criteria over time. Sometimes they do this, but other times they don't.

The sworn declaration might work, but the VA might not give it much weight, which is wrong in my opinion. They like to rely on is a medical professional performing an examination and noting the ROM for max (and possibly where pain begins). They consider that an objective assessment, even though you are competent to testify on your own observances. Like you, I'm a long-time SC TMJ victim since around 1995. There are times when I cannot open my jaw more than a few mm without manually moving it further. You can indeed write a personal statement attesting to the severity, but it might help to have a buddy letter from a spouse, friend, etc.. objectively describing their observations like, "...his jaw was locked shut completely", etc... It is always better to overwhelm the VA with positive evidence in your favor.

Another thing you can do is check your exit exam when you left the service. Also check the dental exams while in service, especially closer to when you got out. If they include ROM info, that can help to show your condition when you got out. Normally, the VA likes to disregard active duty records for rating % purposes and focus on post-service, unless you got out on a medical or filed while on active duty.

[pwrslm]

The papers are a bit hard to read in that first part showing evidence. Did you have oral surgery for your jaw in 2009? What were the results, because those records should show the condition prior to discharge. 
 

Did you provide any lay statements that the jaw caused you pain in 2010? That would entitle you to a minimum rating of 10%. Review your 2010 claim info for this. If not, provide the lay statement, its also something that should have been identified in the C&P exam. Tell them what this has been like and how it affected you for the last 8 years, they must accept your testimony as long as you dont try to provide medical testimony. Your experience, because this case was reopened, may be a key to getting an award back to 2010 for the jaw.

Do you have any non VA opinions in this claim? I would think that would go a long way if they would document the history and effect on your ROM as a medical professional.

Its takes a while, but do you have a copy of your CFile yet?

 

Edited July 13, 2018 by pwrslm

[Wjason777]

2 hours ago, Vync said:

The key component of rating TMJ claims is range of motion. If you can show your ROM was as bad then as is now, via medical/dental records showing ROM, that would be the key focus. With ROM ratings, they are supposed to include two factors. The first is max ROM. This is the most common. However, due to the DeLuca ruling, they must also factor in where pain began when repetitions of movement are made. For example, if your max ROM was 42 mm, that would be 0% under TMJ criteria. However, if the pain began at 26%, the rating should have been 20%. These are very important because the VA often overlooks them. That's why I recommend you go back and double-check. If the proof is there that the VA screwed up, find it and spoon feed it to them. Don't count on them to magically find it. 

The reason why your rating % changed over time is due to what the VA calls staged ratings. It varies the rating based on differing criteria over time. Sometimes they do this, but other times they don't.

The sworn declaration might work, but the VA might not give it much weight, which is wrong in my opinion. They like to rely on is a medical professional performing an examination and noting the ROM for max (and possibly where pain begins). They consider that an objective assessment, even though you are competent to testify on your own observances. Like you, I'm a long-time SC TMJ victim since around 1995. There are times when I cannot open my jaw more than a few mm without manually moving it further. You can indeed write a personal statement attesting to the severity, but it might help to have a buddy letter from a spouse, friend, etc.. objectively describing their observations like, "...his jaw was locked shut completely", etc... It is always better to overwhelm the VA with positive evidence in your favor.

Another thing you can do is check your exit exam when you left the service. Also check the dental exams while in service, especially closer to when you got out. If they include ROM info, that can help to show your condition when you got out. Normally, the VA likes to disregard active duty records for rating % purposes and focus on post-service, unless you got out on a medical or filed while on active duty.

Yes! This is the problem here thanks for pointing this out. The C and P exam for the VA the dentist never asked for a rom with pain and this where the va got the reduction from. The recent DBQ I did earlier this week the dentist done it . I think Using this DBQ along with a sworn statement from me and my wife saying how the bad the condition was from 2010. To present should be enough evidence To convince them to change the effective dates to 2010 and change the current rating to back to 30% at least putting me at 100-% total. 

What do you think?

I checked my exit exams. I don’t have anything for dental stating rom

[Vync]

8 hours ago, Wjason777 said:

Yes! This is the problem here thanks for pointing this out. The C and P exam for the VA the dentist never asked for a rom with pain and this where the va got the reduction from. The recent DBQ I did earlier this week the dentist done it . I think Using this DBQ along with a sworn statement from me and my wife saying how the bad the condition was from 2010. To present should be enough evidence To convince them to change the effective dates to 2010 and change the current rating to back to 30% at least putting me at 100-% total. 

What do you think?

I checked my exit exams. I don’t have anything for dental stating rom

Typically it pain on motion could been handled these possible ways:
1. The doc did not ask, but observed and did not believe you were exhibiting pain while moving
2. The doc did not ask because they did not know to ask
3. The doc asks you

In my experience, most of the time it is either 1 or 2. Your 2010 exam might have been 2 also.

Double-check the original C&P results from 2010 to make certain if the doc did or did not factor in pain.

The 2010 exam is key because of the VA staged your ratings. You would have to have measurements from around 2010 showing you met criteria for 30%. The statement from your wife saying how bad it was from 2010 might not be enough unless it attributed to an objective observation based on measurements, not necessarily pain, discomfort, trouble eating/chewing, etc...

It might be worth it to also explore any conditions secondary to TMJ, if you have not already. This could include migraines, depression, and side effects of medications (GERD/constipation from NSAIDs, ED from depression meds, etc...). It is a domino effect. Exploring these can be beneficial because they might help get you to 100%, just in case contesting the 2010 rating does not work.