They made the statement was "you were treated with topical creams and humira ." humira is an immunosuppressive drug. We couldn't find the medical records, a release or evidence of the va trying to get them.
A final followup to my posts (the last was on 7 may 2015). The compensation I received in may 2015 did not include compensation for my children. However, the VA did send me the necessary forms to apply for this compensation. Although I had filled out these forms in 2005 when I started the case, and although these forms were a part of my record before the agency, I decided the best course of action was to fill out the forms a second time. Time passed and then one day I found a large deposit in my checking account, followed, a few days later, by an explanation of the amount. Since the amount was within $10 of my own calculations, I decided to put this to rest. The final settlement arrived 11 years 4 months after the case was initially filed.
Obviously, I am glad the case was settled in my favor, but I was disappointed that the court elected not to address the basic question in the case, namely the meaning of "properly notified" and "timely filed". Instead, the court directed the VA to pay me the compensation owed ($190,000) without having to admit their error. Of course, as someone once said, "You can't always get what you want, but if you try real hard sometimes you can get what you need."
This website was one of several sources of very, very useful information. My thanks.
"No where in my C&P exam did it state the I told them I was on that medication, but in my decision letter the cited the use of immunosuppresive medication to treat the condition (information only available through my private doctors records.) " Hmmmmm
Can you scan and attach here the rating decision as their Reason and Basis in the older decision being Cued? (Cover C file # and name prior to scanning it.
When you stated" cited the use of" ,do you mean they accepted that you ,specifically, were taking the immunosuppresive meds?
" We couldn't find a copy of my civilian dermatologist medical records in the file, but we did find where I provided them with the information to locate the records and a note asking them to retrieve them. "
Did you sign an authorization form for those records? Was that form in the C file?
Duty to Assist is not a basis for CUE but I think you do have a strong basis here for the CUE.
It is possible they made no attempt to get the civilian records, or they did get them and ignored them,except for the 'use of" the meds part.
I have been successful under CUE using 38 CFR 4.1 et al...specifically 4.6:
It is in this post:
So after some prompting from some friends I got an appointment with the DAV to look at what I thought would just be a new claim to ask for in increase on my psoriasis claim (10%). After the DAV reviewed my records, including my C-file it looked like the VA had ignored some evidence that would have given me 30-60% rating for psoriasis, which is based on the use of immunosuppresive medication. We couldn't find a copy of my civilian dermatologist medical records in the file, but we did find where I provided them with the information to locate the records and a note asking them to retrieve them. No where in my C&P exam did it state the I told them I was on that medication, but in my decision letter the cited the use of immunosuppresive medication to treat the condition (information only available through my private doctors records.) Also I believe that the VA did not fulfill its duty to assist in accordance with federal regulation under title 38 CFR 3.159, which states they must provide notice as to the identity of the records they cannot obtain, as well as what efforts they have made to obtain them. No letter of that type exists in my file. The only letter is a generic letter asking if there is anymore evidence I would like to provide (no specifics included).
Using these medications for 6 weeks or more in the last 12 months (at the time the application was filed) can lead to a 30% or 60% rating. My decision noted other items to justify the 10% but did not mention the immunosuppresives in the paragraph that tell you why you got that rating. The DAV reps submitted a CUE for me, so if we are right I should be back dated to December, 2009. It could possibly take me from a 30% overall rating to 50-70% overall depending on which criteria they think i meet. Any else seem like this should be one for the veteran win column?
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