Psoriasis 30% Rating - Nod Decision Received - Advice Wanted

[HawaiiJ]

Hello, I’m looking for some guidance and understanding on one of the Service Connected issues I have. I’ll apologize in advance if I get long winded but will do my best provide the timeline and decisions along the way. Here’s a simple timeline.

Jan 2009 - Retired USAF

Jun 2009 - VA Received initial VA Claim for Disability

Dec 2009 - VA Examination at the VAMC Boston

May 2010 - Notified of Decision

Apr 2011 - NOD Received at VA

Oct 2012 - NOD Decision sent to Claimant

I agree with all my SC decisions made by the VA with one exception: PSORIASIS, initially determined to be 30% disabling. My opinion based on evidence provided, it should have been 60%.

The May 2010 decision was for 30% disability for Psoriasis was based on 20% of the body and the it goes on to include all the other technical terms related to a Psoriasis decision.

The decision noted that my Psoriasis is treated with 50 milligrams of Embrel twice per week which has been effective.

The Embrel injections started in Nov 2007. This was after countless treatments with all the cream, suave & solution therapies available. It also included a two regimens of Cyclosporine which worked wonders until stopped and the Psoriasis conditions came back with a vengeance. FYI - My issue with Psoriasis date back to 1994.

The following paragraph was included in the decision as well in the initial decison:

“an evaluation of 30% is assigned from January 1, 2009. An evaluation of 30% is granted for evidence showing 20 to 40 % for the entire body or 20 to 40% of exposed areas affected, or; systemic therapy such as corticosteriods or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A higher evaluation of 60% is not warranted unless evidence shows more than 40% of the entire body or more than 40% of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteriods or other immunosuppressive drugs required during the past 12-month period.”

That was the 30% decision and how to increase to 60% if warranted. My understanding of the decision was something had been missed on the immunosuppressive drug therapy-EMBREL. I had began taking Embrel in Nov 2007 which was nearly 18 months of use at the time I filed the initial VA Claim. Embrel is clearly described as an immunosuppressive drug on the drug manufacturers website and others related to Psoriasis info. My twice weekly injections were constant meaning this was the dosage and use prescribed by my doctor.

I felt this was a clear miss on the VA’s part. Embrel was in use for longer that the “constant or near-constant systemic therapy such as corticosteriods or other immunosuppressive drugs required during the past 12-month period” threshold described in the VA decision.

So, I decided to file a NOD, requesting the higher 60% decision based on the use of immunosuppressive drug therapy. I’m thinking this is easy, I state the obvious, provide clear dates with evidence and should be a simple correction to the 60% rating.

Also, It should be noted between the initial decision and filing the NOD the Embrel stopped working and I began taking STELARA which also decreases and impacts your immunosuppressive system in a negative way too. All this information was provided in the NOD filing and it showed a continuous use of EMBREL and STELARA from Nov 2007 until the date of the filing. Well over the 12-month use threshold required for 60% rating. To date I’m still using STELARA and the VA is currently paying 100% the cost of this therapy via their Foreign Medical Program (VA-FMP).

On 22 Oct, 2012 the NOD decision was received the VA decision was to maintain the 30% disability rating based on the exact same reasoning listed in the original decision and also the NOD decision included the same comments about what warranted a higher 60% rating which stated: “constant or near-constant systemic therapy such as corticosteriods or other immunosuppressive drugs required during the past 12-month period”. No progress was by filing the NOD. The VA came to the same decison without clearly stating Embrel use was involved in the decision.

Ok, thats the story here’s a few questions I need help on understanding if anyone has a recommendation. I have 60 days to make a decision to appeal, disagree or request a hearing in person.

1. What qualifies as: constant or near-constant systemic therapy such as corticosteriods or other immunosuppressive drugs required during the past 12-month period? Does constant use as prescribed by doctor from 2007-present meet definition of constant or near-constant?

2. EMBREL and STELARA both suppress the immune system this is based on the drug information listed on the manufacturer’s sites. Why does this not meet the VA threshold for immunosuppressive therapy?

3. What am I missing?

4. Am I foolish for thinking I should be at 60%?

5. Would a BVA hearing be a mistake or am I chasing something I can’t catch?

Sorry for the long version, hopefully I have provided enough info without clouding the issue too much. Looking forward to the replies. Thanks.

[HawaiiJ]

I just made another call to the VA for clarification and here's the answer. My 710 day waiting period is based on the day they received the Form 9, 11/23/2012. Then my file will be forwarded to the BVA for the docket and I assume await until it is assigned a hearing date. The lady I spoke with said once it goes to the BVA it is in "LIMBO" (she actually used the word limbo) and ther's no estimated number of days for it to clear the BVA hearing process.

I have to say, I expect to have this last for many years and the only saving grace is everything related to this is retroactive in terms of potential money.

Another depressing fact is my case sits at the RO and they already had the file and denied the appeal prior. So now they get to just hold onto it for nothing since I asked for a BVA in DC and not at the RO. Anyone know why?

Over the next few months, I'll put together a powerpoint type briefing of what I would present to the BVA and let the congregation here make a call as to whether I'm wasting my time or not. It might take me a couple of months because I'm in school and have many projects along the way.

[Berta]

Two reasons it takes so long: (In my Opinion)

Two frustrating things happen before a file is transferred to the BVA.

I think both of these actions should be eliminated by the VA but then again they dont care what I think.

Someone at VARO prepares a I-8 for every I-9 filed.

(I-8 Certification of Appeal)

The I-8,in my opinion, is a self serving list of Yes or No check off questions as to whether the VA did this or that in processing the claim.

This is all found under M21-1MR ,Part One, Chapter Five, Section F Topic 31.

If they really did all the things they check Yes to, maybe some of these claims shouldn't even be on appeal.

Another point of frustration is that this same part of M21-1MR explains the 646.

The 646, if you have someone as your POA, sits on a reps desk in a pile, a rep who usually is not familiar with your claim, whereby the POA has opportunity for input:

“VA Form 646, Statement of Accredited Representative in Appealed Cases, gives an appellant’s representative an opportunity to review the appeal and submit a statement regarding the appeal

• prior to certification, and/or

• after

• receiving new evidence requiring additional action, or

• completing an action on a BVA-remanded appeal.”

Personally I think this 646 is a big waste of time in most cases.

It does give the POA the right to point our any deficiencies or errors in the decision being appealed and they surely will say they support the claimant's contentions, but the 646s are hardly ever mentioned by the BVA in their decisions, unless the POA has made a significant probative statement on the 646.

(Which does not happen too often)

More on the 646....

“VA Form 646 can be executed in remanded cases when further consideration is required by BVA.

Note: VA Form 646 is not required when

• new evidence is not submitted and additional actions were not required, or

• an appeal is

• remanded by BVA solely for assembly of records, such as X-ray films or outpatient treatment folders, and

• forwarded without further consideration by the agency of original jurisdiction. “

If a VCAA letter sent to the claimant is faulty, to the point it is detrimental to the claimant (like the VCAA letter I got years ago) the 646 should be the opportunity for a POA rep to question it , prior to initial BVA transfer ,if they have not done that already.

That sure would have cut down on the backlog years ago when the BVA had to remand countless claims due to deficient VCAA letters.

[HawaiiJ]

Hi everyone,

Just wanted to get some opinions on how you might think I will fare for my VBA hearing when it finally happens.

I don't think this is a complicated issue and can't believe it has gotten to this point but I can understand why the system is backed up to the point it is.

The attachments below are from the NOD decision I received from the VA, it is different from the initial decision only because of the reference to my use of Enbrel. The original decision did not reflect this even though it was clearly in my official medical records reviewed for the initial decision.

Here are a few of the simple facts.

- At the time of the initial filiing, I had been on Enbrel for over 12 months

- I stopped taking Enbrel in March 2010 and began taking Stelara

- Until July 2011, the cost of both medicines were funded by (Active Duty/Express Scripts or Tricare)

- In November 2011- Present, it have been paid via the VA FMP (I Live in Thailand)

- So I have been on Enbrel or Stelara constantly since Nov 2007

- Initial decision was at 30%, NOD decision continued this rating of 30%

My disagreement is with this portion of the decision:

"A higher evaluation of 60 percent is not waranted unless evidence shows more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period."

In the decision it states how and what warrants the higher rating of 60 percent. Both Enbrel and Stelara are immunosuppressive drugs based on the information on the drug manufacturer's website along with the FDA's website.

The paragraph above (especially the highlighed portion) says "OR" not "and" or that you have to meet the entire portion of the paragraph to hit the threhold defined for the 60 percent.

I feel based on the drugs I have been on since Nov 2007, I clearly meet the requirements of the "or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period." portion of the requirement and should be elligible for the 60 percent rating for this condition if the evidence was evaluated properly.

Both drugs at the time were/are fairly new and are not the easiest to get insurance companies to approve for use and maybe the case evaluaters at the time did not really understand what the drugs are classed as in terms of the immume suppressive effect?

Please let me know what you think. Am I thinking correctly is that I should be at 60% vs 30% based on the information provided here?

Thanks in advance for taking the time to consider these questions.

[63SIERRA]

you need to get a copy of the cp exam and see what percentage of your body was reported covered with the psoriasis. if its not accurate request a new cp exam, and tell the doctor where it flares up. it isnt always flared up and evident,. many people go to cp exams and act like robots and dont communicate to the examiner. There is no rule that says you cant tell them things to help your case. they arent mind readers. If they get offended thenm they are likely bandits that will screw you anyway. WHether they want to hear it or not, they get told. that way, they cant say, veteran didnt state this or that.

I actually found a cp exam to be in error not too long ago, because the doctor didnt know how to use a tape measure and measure a scar, or he deliberately tried to screw me. I pointed it out to the va, they scheduled another cp exam with a different doc/ presto, I got correct measurement and a fair cp exam. furthermore. the clown who screwed up the first cp exam, I shall never cast a shadow across the threshold of his office door ever again.

just for basic info, the guy who goofed up my cp exam, is considered the " chief" cp examiner in my region. according to the cp doc I went to after him. so go figure. I guess you get chief status when you fugg up and vets dont get paid.

Edited December 22, 2013 by 63SIERRA

[63SIERRA]

As far as remands are concerned I think the va should change that, so that the claim does not go back to the RO that denied it. The RO that denied it, has a vested interest to keep denying to save face. Once the claim is remanded for lack of evidence or lack of properly applying the law, it should go to a impartial place l and be processed. A seperate entity, that is set up that is not under the thumb of the va. all information that is not relevant is blocked out, so the impartial panel doesnt even know who they are deciding for. Then it goes before a judge, and if the descision made by the panel is legal, then its done. no more remands to the retards. just fair, impartial justice.

Edited December 22, 2013 by 63SIERRA

[HawaiiJ]

you need to get a copy of the cp exam and see what percentage of your body was reported covered with the psoriasis. if its not accurate request a new cp exam, and tell the doctor where it flares up. it isnt always flared up and evident,. many people go to cp exams and act like robots and dont communicate to the examiner. There is no rule that says you cant tell them things to help your case. they arent mind readers. If they get offended thenm they are likely bandits that will screw you anyway. WHether they want to hear it or not, they get told. that way, they cant say, veteran didnt state this or that.

I actually found a cp exam to be in error not too long ago, because the doctor didnt know how to use a tape measure and measure a scar, or he deliberately tried to screw me. I pointed it out to the va, they scheduled another cp exam with a different doc/ presto, I got correct measurement and a fair cp exam. furthermore. the clown who screwed up the first cp exam, I shall never cast a shadow across the threshold of his office door ever again.

just for basic info, the guy who goofed up my cp exam, is considered the " chief" cp examiner in my region. according to the cp doc I went to after him. so go figure. I guess you get chief status when you fugg up and vets dont get paid.

63Sierra,

I agree I need to get the C&P file from the VA. I have spoken to the local VFW service officer and he's working on assisting to get the information from the VA.