Sample NOD 21-0958 form

[GeekySquid]

Hi all,

This will be the first NOD I have to file, and I fall into the odd gap between Legacy, RAMP, and AMA processes.

As I understand it Since the claim I am NODding was started Aug 2018, with a partial decision dated Oct 2108 and the deferred claim decision dated April 2019, I am supposed to still use the VAB Form 21-0958-ARE, which is the fillable form.

The first question I have is about the actual form itself and I have filled out a sample to make sure this is acceptable to the VA. I am trying to make sure that I clearly indicate that attached records support my claim and that I give the reviewer an explicit road map as this is a complex claim. Please look at the attached sample and tell me if this is okay.

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The second question is a bit more complicated and involves 3 distinct award/decision letters with different dates.

The question is, which decisions do I NOD?

Letter 2 and Letter 3 are both 2018. Letter 3 gives me the award but not the dates on Hearing Loss, on Vertigo it gives me an award but the wrong effective date and should be rated as Meniures instead of Vertigo based on all the evidence. Both should be back dated to 2013.

here are the details.

I have 2 of them in my possession and am waiting for the BBE for the 3rd one issued in April 2019.

Letter 1 -Oct 2013

Letter 2 - Oct 2018

Letter 3- April 2019

In each of these letters the same issue is addressed, SC for hearing loss

Letter 1 denied SC because C&P Doctor only looked at 1 enlistment to gather hearing loss and in-service Treatment for hearing loss w/ OSHA evaluation. Award states I have rateable hearing loss, but SC cannot be established. Had I known better I would have NODded or CUE'd this back then.

Letter 2 denied reopening Hearing Loss denial from Letter 1 claiming evidence provided (proof the doc overlooked evidence in my  record) and subsequent hearing tests. Acknowledges Hearing Loss rateable, denies SC claiming the evidence is not N&M despite showing that doctor did not look at all the evidence in my service record. I am sure I can also CUE this and would jump on that except for Letter 3 below.

Letter 3 oddly grants SC from 2018 Hearing Loss C&P but gives effective date of 2018 instead of 2013

Important factors here: The 2018 rating percent would be 0% because I can still hear a little in that ear. Having the EED back to 2013 (Letter 1) is significant as that decision failed to Notify me of a possible claim for Documented Vertigo, failed to Assist me in developing that claim, failed to infer from the evidence, failed to acknowledge inferred request by me. The VAMC now claims they lost the evidence yet my medical records are replete with requests for help with Vertigo, ENT exams, OTO exams, Fragments saying I had OTO exam, MRI, and VNG tests and that I have Nystagmus.

The sequence here is:

Letter 1-ignored all evidence of Vertigo, failed to assist in developing claim, failed to infer, failed to notify, failed to even mention Vertigo

Letter 2-Deferred my direct claim for Vertigo. Note: VA order C&P's and in fact I had 4 related to vertigo and hearing (which is a fustercluck unto itself).

Letter 3- Have not received BBE but Ebenefits states I am now rated 30% for Vertigo and 0% for Hearing loss, both SC.

In a fair world (I put that in for chuckles) the VA would have performed properly in 2013. They didn't. They would have corrected themselves in Letter 2. They didn't. I don't have Letter 3 yet but they in effect CUE'd themselves but gave wrong effective date on hearing which is integral to eventually getting Vertigo back dated to 2013.

What they rated in the latest round actually fits Menuiers disease more than Vertigo. The 2018 OTO C&P doctor was incompetent and did not fill out a DBQ during the exam. He did not know why I was there. Did not deal with my gait issues or ask about them. Did not ask about frequency of events. He had his wife type up the form at home (those are his words) as he does not allow computers in his office. He and the rater ignored records in my med files concerning gate, MRI, VNG, etc being performed. He did not ask for MRI records or VNG records.

 

There are a couple more issues like this but the above shows the complexity of my process. You can all see why I need to make sure I use the right forms and can create a roadmap for VA to follow.

Any input would be appreciated.
 

 

 

sample for hadit question.pdf

Edited May 7, 2019 by GeekySquid

[Poopsy Woopsy]

Geeky Squid:  cannot answer such a complex issue.  Its like they do that so you are sure to make a wrong filing or other mistake and takes the heat off of their mistake..Just wanted you to know, I hope you find a clear answer so you can move forward.. I am rooting for the Veteran!!

Edited September 3, 2019 by Poopsy Woopsy

[GBArmy]

Geeky, the first question I have, and I read this twice is, why the delay on the 3d BBE? I mean, it's hard to put this together without that last piece. I realize what you said was in ebennies, but with an octopus like this you gotta see the whole thing. The second thing that comes to mind is the assumption that it will be denied, at least some of it anyway. So, I think you want to word the NOD for them to trip themselves up and not answer some of your claim and it would then go to BVA on appeal just on that reason alone. There has to be something in the CFR /M21-1/BVA /CAV decisions that talks to order of precedent. I mean, this is not the first time that the question has come up. It's new to you, but it isn't new and there has to be a rule.If you have ever used a lawyer, maybe they could advise. It could be based on something that was decided years ago. We have a few lawyers on Hadit, maybe they can offer an opinion.

[vetquest]

I am not sure that you need to use the old NOD form and remain in legacy if you are looking for an appeal at this time.  It most likely would be more advantageous to use the new process since the legacy NOD's are running 13 to 24 months and it looks like they are taking 24 months to my observations.  Everyone I know in legacy NOD's is wondering when they will get around to us.  

[Buck52]

Not sure I am helping out here  but as for as NOD 's you file each one separate and they will look at them Separately  (whenever) as long as you file your NOD In a timely manner with in 1 year if the denial.

Now with this New AMA in place  this means they have a skeleton crew to work the Legacy Claims  and it is no telling how long that will take?? NO ONE KNOWS FOR SURE?

  you can opt into the RAMP & if your accepted it might be a faster way(who knows)??   but there is no guarantees either way  ,even though the AMA is suppose to be faster.  but the AMA Seems to be breaking down(getting worse or more time to make a decision.

from what I gather  the AMA is making more and more mistakes and more denials are coming up!

It is not what they promise decisions within 125 days.  unless its a denial

(jmo).

[Buck52]

geeky not sure you know this

''What If your VA Claim Is Currently Pending in the Legacy System?

The legacy (old) system of VA disability appeals will continue until those claims are processed and resolved. Rating decisions issued prior to 2019 will stay in the legacy system.

However, if your case is now pending in the legacy system at the Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) decision points, you may opt into the new AMA system. Or, you may stick with the legacy system if you think it will better benefit your case.

What Can You Expect with the New VA Appeals System?

It is crucial the AMA meets the challenge of clearing the appeals backlog. For some disabled vets, appeals have taken up to seven years; others have died while waiting.

VA hopes to reduce the entire process from the current 3-7 years down to 1 year or less. Hundreds of new employees have been hired or contracted by VA to handle the appeals.

Although it is just now rolling out, one weakness has surfaced under the Appeals Modernization Act. If your claim involves Appealing to the BVA (Lane 3) and the Board is aware of additional relevant evidence that could help your claim, the Board no longer has a duty to assist you with gathering those records.

Speaking as veterans disability lawyers, the new VA appeals system offers more choices, which is the essence of freedom. Yet this new system is a massive change. Choices made will involve complex decisions, and decisions have consequences.

Before jumping right into the new process, or instead of losing precious time wondering how to proceed with your claim, we urge you to seek accredited help from your veterans’ attorney, your VSO, or other accredited VA agent.''