CUE for Eczema-like condition denied :-(

[JustGettingStarted]

I sent this CUE to Berta on another thread and she thought it was really good.  However, I just got a denial from the St. Pete VARO today (they are really illiterate).

At issue is the fact that any conditions similar to dermatitis or Eczema are rated under code 7806.  These conditions can be rated on amount of body they cover, or more importantly, how often you have to take "systemic medication" for them.  Systemic medication is usually defined by the VA as oral medications or injections, but not topical medications and if you take it constant or near constant, the rating is 60%.

In the denial letter, I am still service connected for a skin condition at 0% as I was in 2009, but the VARO completely ignored the fact that I have been on constant systemic medication since 1998 and should be rated at 60%. The medication was completely ignored in the decision.  I provided military medical records from 1998 where I was put on constant medication, and Bluebutton pharmacy records from a military facility that date back to 2004.  All that evidence was submitted with my CUE.  

I thought this was going to be so cut and dried, and now I know why so many people complain about the VA ignoring the evidence and why the appeal system is so backed up.  I guess I will be getting on the hamster wheel and ask for a reconsideration/DRO Review/Appeal.  

Anyway, I attached a redacted copy of the CUE that I did in the event someone can use it as an example. I hope it works better for them than it did for me.

JustGettingStarted

Motion for Cue-REDACTED.pdf

[JustGettingStarted]

An update on this CUE.  I sent a request for reconsideration to St Pete based on the fact that the C&P examiner had "overlooked" the list of medications I had provided him.  Also, there were several items of evidence that I had provided to the VA that were not in the C-File.  This CUE and my other denied claims have all been reopened with my original "Intent to File" date. 

Now it is time to watch and wait again.

[Berta]

Thanks for this update....many here know what it is like to "watch and wait AGAIN".

Do you have proof that the VA got those evidence items?

This is how C & P examiners have doomed thousands of claims over the years...

Whenever I had to watch and wait, I also was able to collect even more evidence.

Except for my last CUE. I only needed one piece of evidence for a specific 1151 issue....and they still managed to ignore it. 

I filed CUE Immediately and they awarded the claim. 

My evidence came from VA Central Office from the Chief Cardiologist of the VA....yet they still tried to ignore it. I still believe the so called posthumous C & P exam was done by the man who fills their paper cup dispenser at the RO water cooler. 

 

[broncovet]

I would humbly suggest it isnt CUE for a medical examiner to make a mistake.  If an examiner errs, it is up to the Veteran to refute this medical evidence with other medical evidence, such as an IMO/IME.  

The Veteran is also given an opportuntiy to have medical records corrected, if there are errors, and the Vet must follow VA procedures on this:

Here is the regulation by which the Veteran can challenge incorrect medical records:

Quote

§ 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual mayrequest a review of that refusal by the Secretary or designee, and the name and address of such official.

(Authority: 5 U.S.C. 552a(d)(2))

(b) The administration or staff office having jurisdiction over the records involved will establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the Department of Veterans Affairs of an initial adverse Department of Veterans Affairs determination, and for whatever additional means may be necessary for each individual to be able to exercise fully, his or her right under 5 U.S.C. 552a.

(1) Headquarters officials designated as responsible for the amendment of records or information located in Central Office and under their jurisdiction include, but are not limited to: Secretary; DeputySecretary, as well as other appropriate individuals responsible for the conduct of business within the various Department of Veterans Affairs administrations and staff offices. These officials will determine and advise the requester of the identifying information required to relate the request to the appropriate record, evaluate and grant or deny requests to amend, review initial adverse determinations upon request, and assist requesters desiring to amend or appeal initial adverse determinations or learn further of the provisions for judicial review.

(2) The following field officials are designated as responsible for the amendment of records or information located in facilities under their jurisdiction, as appropriate: The Director of each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply Depot, and Regional Counsels. These officials will function in the same manner at field facilities as that specified in the preceding subparagraph for headquarters officials in Central Office.

(Authority: 5 U.S.C. 552a(f)(4))

(c) Any individual who disagrees with the Department of Veterans Affairs refusal to amend his or her record may request a review of such refusal. The Department of Veterans Affairs will complete such review not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual request such review and make a final determination unless, for good cause shown, the Secretary extends such 30-day period. If, after review, the Secretary or designee also refuses to amend the record in accordance with the request the individual will be advised of the right to file with the Department of Veterans Affairs a concise statement setting forth the reasons for his or her disagreement with the Department of Veterans Affairs refusal and also advise of the provisions for judicial review of the reviewing official's determination. ( 5 U.S.C. 552a(g)(1)(A))

(d) In any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (c) of this section, the Department of Veterans Affairs will clearly note any part of the record which is disputed and provide copies of the statement (and, if the Department of Veterans Affairs deems it appropriate, copies of a concise statement of the Department of Veterans Affairs reasons for not making the amendments requested) to persons or other agencies to whom the disputed record has been disclosed. ( 5 U.S.C. 552a(d)(4)) ( 38 U.S.C. 501)

Also, if the VA renders a decision based on an examiner's report, that is not CUE.  "CUE" does not extend to medical examiners.   The exam can be inadequate, but the Veteran can challenge the adequacty or competency of the exam.  If the Veteran fails to challeng the adequacy or competency of the examiner, then that exam is presumed valid.  The examiner is given a presumption that he is qualified and the exam is valid, absent a challenge by the Veteran or his representative.  

Thus, if you did not challenge the compentency or content of a medical exam, it isnt CUE for the VA to base their decsion on the opinions of the examiner.  

Edited July 16, 2017 by broncovet

[JustGettingStarted]

2 hours ago, Berta said:

"Do you have proof that the VA got those evidence items?"

Yes, I have proof.  Everything is uploaded in eBenefits.  I also downloaded a copy once in eBenefits that shows a control number that is added by eBenefits.  This is extra proof just in case anything in eBenefits disappears.  

 

[JustGettingStarted]

Broncovet,

I think you need to read the original post.  The CUE was because I was given 0% for an eczema-rated condition when taking systemic medications.  The proper rating for eczema-like conditions when taking constant systemic medications is 60%.  My 2009 rating said I had the condition and I was taking constant medication, but failed to give me the proper rating.

[JustGettingStarted]

I just found out that VA is sending me to another C&P exam for skin despite having a skin exam 3 months ago!  

In a way, I am happy for the do-over since the examiner left out all my medications, getting my claim denied.  I was able to get the claim reopened the next day by uploading a letter to eBenefits pointing out that all the medications were in eBenefits and they were not addressed in my denial letter.  

However, it just seems like such a waste of time when everything the VA needs to reach a decision is in my records - I am service connected for the skin condition, and I provided my pharmacy records back to 2004 proving I am on constant use of systemic medications.  That is a 60% rating for skin conditions rated the same as eczema.

FYI - I confronted this examiner about leaving out the meds in another exam I had with him.  He said that he did not think they were important because the skin condition I have isn't listed by the VA.  I had to tell him that the condition is rated the same as eczema since it isn't listed and he has cost me months or years of time by ignoring the information I gave him.