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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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Galen Rogers

NOD Question on Medical Issue or Symptom Issue

Question

Howdy all,

I'm pulling all my support docs together for the NOD I plan to submit. I had requested an increase for my knee. Originally I was rated 10% for Meniscus repair. The decision came back changing that to 10% for reduced range of motion due to pain. I feel it should be rated at least 20% under DC 5258  (Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint). My knee locks numerous times a week, hurts all the time, and swells up most of the time due to a bakers cyst that does not go away.  The torn/dislocated cartilage and bakers cyst are both in my records and annotated on the most recent MRI. So would the locking, swelling and pain be symptoms that my personal statement supports or would I need the doctor to put it in his report?

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You need the doctor to document symptoms.  Lay evidence wont suffice for either service connection or an increase.  BUT WAIT!  

Since you are apparently at 80%, an "additional" 10 percent is unlikely to yield any additional benefits because of VA math:

In other words, 80% plus 10%, would still be 80 percent.  

Its up to you, but I would not put up with the VA unless it were worth my while.  It would be more fun for me to go to the stockyards and shovel horse manure.  You see, both stink, but with the later you could get to see some Mighty fine horses, and with the VA all you would get would be Bull.  

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I am at 90%. The NOD covers both knees, lower back and pain, tingling, & numbness in both arms and both legs. That still may not add up to 10% but I want it covered. 

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Ok..your "handle" says 80 percent.  

90 percent plus 10 percent is still 90 percent, however.  If you are seeking an increase, I say "go for it", if the symptoms warrant it.  However, the VA sometimes denies "as moot" claims where no additional benefits accrue.  As an example, my TDIU claim was denied "as moot" when I was awarded a single 100 percent.  

I actually appealed, arguing that it was "not moot" because an award of TDIU could result in SMC S, per Bradley vs Peake AND could result in an earlier effective date.  

The board agreed with me, and specifically, the remand said it was "not moot" for reasons I just stated.  

Still, UNLESS you have other claims/claims for increase, I dont advise seeking an additional 10 percent when it wont increase you to 100 percent.  To go from 90 percent to 100 percent, you need an additional 50 percent.  Crazy, I know.  

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Sorry forgot to update profile after last decision. I have about 5 items that if I can get them through will add up to about 60 or 70 percent.  I'll just have to wait to see what the NOD crap shoot does for me. 🙂

 

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