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]

The thing that tipped the scales this time was the DBQ I filled out for my dermatologist to sign, which says I have been on constant systemic medication since 1998.  I needed this to overcome the bad VA contractor exam that left off my medications in 2017.  The Congressional complaint I filed may have also been a factor.

I was service connected for the skin condition when I retired in 2009.  My decision letter says "the veteran says she is taking XXX daily".  They had access to all my pharmacy and medical records that show I was put on the medication in 1998 and have been taking it ever since.  I know it is still a CUE.  I believe the rater did not know my medication was "systemic" since it isn't listed specifically in Title 38, or they rated me by area of skin coverage versus constant use of systemic medication.  Either way, it was a big error.

The letter I got today didn't mention my request for a back date at all, which I find odd.  When VA denied the backdate for peripheral neuropathy that was awarded in 2017 by saying I didn't have a diagnosis in 2009.  I may still fight that one because I requested a back date for cervical radiculopathy, which I did have a diagnosis for in 2009.  CR is just rated the same as PN because the symptoms are almost identical.  Hopefully since I finally got my increase for the skin condition, it will be easier to get a back date, but I really don't trust the St Pete VA after the hoops they put me through.

Anyway, I've won a huge battle but haven't won the war yet.  I guess I need to keep trying until I get that CUE.  :-)  Until I do, I really am not a cuerino yet.  

JustGettingStarted

Edited January 8, 2018 by JustGettingStarted

[JustGettingStarted]

I just heard from my VSO that VA is denying my CUE again.  They said my condition was not rated the same in 2009 as it is now and that medication wasn't considered "systemic" back then.  As soon as I get the letter I am going to reopen the file again and hit them with a BVA decision from 2005 where St Pete was the Regional Office  (My Regional Office is St Pete).  Below is an excerpt from the BVA's favorable decision for the exact same skin condition and medication I use and claimed in 2009.

Still,

JustGettingStarted

___________________________________________  

As of September 19, 2002, the evidence of record demonstrates

that the veteran was prescribed MEDICATION.  As

indicated previously, a 30 percent rating is warranted under

the post-August 2002 regulations, where systemic therapy,

such as corticosteroids or other immunosuppressive drugs, is

required for a total duration of six weeks or more, but not

constantly, during the past 12-month period.  While MEDICATION

is not classified as either corticosteroids or

immunosuppressive drugs, the Board observes that the language

of Diagnostic Code 7806 (2005) indicates that such types of

systemic therapy are only examples and are not intended to be

an exhaustive list of possible systemic therapies. 

Specifically, Diagnostic Code 7806 provides for a 30 percent

rating where systemic therapy such as corticosteroids or

other immunosuppressive drugs are required for a total

duration of six weeks or more, but not constantly, during the

past 12-month period (emphasis added).  As such, evidence

dated September 19, 2002, and in April 2003 shows that

systemic therapy, specifically MEDICATION, was

prescribed and, at the March 2005 VA examination it was noted

that the veteran had been on MEDICATION for six months. 

Therefore, the Board finds that the veteran is entitled to an

initial rating of 30 percent beginning September 19, 2002. 

 

[Berta]

By all means do that!

BVA decision are specific to the claimant the decision is written for,.

BUT- when BVA makes a legal statement, as in the above case, then that decision can be used as evidence.

I used a prior BVA decision I got (  because it was the only claim like it at the BVA) because, when I won a subsequent AO death claim, years later - the VARO didnt want to pay me ,yet the prior BVA decision stated VA case law, that if I ever succeeded in direct SC death ( I got 1151 DIC then) they would have to refund a FTCA offset.

I had to call the OGC to get my money but I knew the OGC and the BVA would rely on established VA case law-which includes all established rating criteria, such as the rating criteria and diagnostic code in the case above that you gave us-

You should be a LAWYER! 

Their decision however will tell us more.

 

 

[Berta]

There was a change to the 7806 ratings....per this BVA decision:

"----During the pendency of this appeal, regulatory changes 

amended the VA Schedule for Rating Disabilities, 38 C.F.R.

Part 4 (2002), including the rating criteria for evaluating

skin disabilities.  See 67 Fed. Reg. 49596 (July 31, 2002)

[effective August 30, 2002].  Under the revised rating

criteria of Diagnostic Code 7813, dermatophytosis is rated as

disfigurement of the head, face, or neck, scars, or

dermatitis, depending upon the predominant disability.

 

The rating criteria under DC 7806, as effective August 30,

2002, provide a noncompensable evaluation for dermatitis or

eczema when less than 5 percent of the entire body or less

than 5 percent of exposed area is affected, and no more than

topical therapy is required during the past 12 month period. 

A 10 percent rating is provided when at least 5 percent, but

less than 20 percent of the entire body, or at least 5

percent, but less than 20 percent, of the exposed area is

affected; or, intermittent systemic therapy such as

corticosteroids or other immunosuppressive drugs required for

a total duration of less than six weeks during the past 12-

month period.  DC 7806, as amended by 67 Fed. Reg. 49,596

(July 31, 2002)."

https://www.va.gov/vetapp04/files3/0421394.txt

But I dont think that change affected the way they should have rated you.....

 

[JustGettingStarted]

LOL Berta,

I have already included the 2002 Title 38 in my new CUE I'm drafting.  It is the entire reason they should have rated me at 60% in 2009!  This is the law they are not following which constitutes CUE.  2002 was the last update to diagnostic code 7806 (there is a new proposal in the Federal Register now, but it doesn't affect my CUE).  I believe St Pete has confused VA Manual M21-1MR with the law and I can't let that happen.  I was in the military long enough to know there is a huge difference between manuals and regulations and that manuals cannot contradict the regulations that are law.  Besides Title 38 and the 2005 St Pete BVA case quoted above, I will also hit them with two US Court of Appeals for Veterans Claims that came out of the 2002 revision to Title 38 Skin Conditions. 

"Below are quotes from the laws and regulations when Diagnostic Code 7806 changed in 2002, and during my claims in 2009 and 2017.  Note that not a single word in the law has changed:

 31 July 2002 38 CFR 4.118:  “7806 Dermatitis or eczema.  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 ........ 60”  (Attachment 1).

 1 July 2008 38 CFR 4.118:  “7806 Dermatitis or eczema.  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 .... 60”  (Attachment 2).

 1 July 2016 38 CFR 4.118:  “7806 Dermatitis or eczema.  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 .... 60  (Attachment 3)."

I am quoting Mauerhan v Principi, 2002.  This court case was instrumental in defining the words “such as” in Title 38.  It states “By definition “such as” means “for example” or “like or similar to.”…The use of the term “such as” demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.”

And then the big one, which uses Mauerhan v Principi is Warren v McDonald in May 2016.  This case did not change the law, but upheld that under Diagnostic Code 7806, systemic therapy includes any oral medication.  The original claim was filed in 2004 (five years before my 2009 claim) for a toenail fungal infection treated with oral Lamisil, an anti-fungal medication.  “VA has interpreted the phrase “systemic therapy such as corticosteroids or other immunosuppressive drugs” in that DC to mean “any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder…Given the evidence of record that establishes that Mr. Warren is receiving systemic therapy that is orally ingested…evidence that appears to satisfy VA’s own definition of the phrase “systemic therapy such as corticosteroids or other immunosuppressive drugs”—I agree with my colleagues that the Board provided inadequate reasons or bases for denying a disability evaluation for bilateral onychomycosis in excess of 10% under DC 7806.”

I don't think I could be a lawyer.  My life is consumed enough by my own fight with the VA.  I wouldn't have a life if I took on cases of others, although I am happy to try and help other veterans with the knowledge gained from my negative experiences with the VA.  I would just become totally frustrated with trying to cut through the ignorance.

I can't wait to see the letter from VA so I can throw their own words back into their faces using real VA law! 

My VSO says he will print the letter up for me on Monday if I don't have it by then.  I have a great VSO.  He admits that I know more about my claims than he does, but he is always there when I need him to look into the VA system to see what they are up to.  And he is good at reviewing my claims and telling me how to make them better. 

Still,

JustGettingStarted

[Berta]

Yippee!!!!!!!