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Second Class Petty Officers
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JustGettingStarted last won the day on January 26

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About JustGettingStarted

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    E-5 Petty Officer 2nd Class

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    USAF CMSgt, Retired
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  1. CUE for Eczema-like condition denied :-(

    That information was in my military medical records at time of decision when I retired in 2009. But VA had my military medical records in their possession and it is all in my C-FILE. My 2009 decision letter even states I was taking the medication daily. St Pete chose to ignore all that when I submitted my claim for the increase until I got my own DBQ. The bogus denial based on a policy change didn't work so they are trying to find other ways to deny my earlier effective date. Since that failed, I guess their tactic is to prove I am committing fraud, either by not actually taking the meds or by taking them just to increase my rating. Since I started taking the meds 11 years before I retired from the military, and doctors since have said I need to be on the medication "chronically", the VA doesn't have a case. If they try to go that route, the first thing I will do is have my husband write a spouse letter and submit that as new evidence to reopen again. Maybe I need to remind the VARO they are supposed to be non-adversarial. (The Veterans Claims Assistance Act of 2000 (VCAA) reaffirmed that the VA benefits and disability claims process up to the Board of Veterans’ Appeals (BVA) process must be non-adversarial. See, 38 C.F.R. §§ 3.102, 3.103, 3.105, 20.700 (2007).)
  2. CUE for Eczema-like condition denied :-(

    I got clarification from my VSO on what the new C&P exam is really about. The VA wants an opinion from the examiner on whether I really need the medication constantly, or if I am taking it just to get a higher rating. Wow, they are looking for any excuse to deny my claim. At least they realized they cannot deny my claim based on a policy change. Now that I know this, I can focus my sights on the medical paperwork I need to show the examiner. The fact is that I was put on suppression therapy (constant use) in 1998, 11 years before I retired. It wasn't until 2002, 4 years later, that Code 7806 was changed. In 2002, skin conditions like eczema first became rated at 60% for constant use of systemic medication. My medical records and pharmacy records clearly show my constant use to the current date. Hopefully, my next examiner will be someone that listens and will get the DBQ/Medical Opinion correct for me. I will do my best to point them in the right direction. JustGettingStarted
  3. CUE for Eczema-like condition denied :-(

    Thanks SigBnSoldier, In the denial, VA actually wrote that I had all the proper conditions for a 60% rating in 2009, but the policy was different back then. They validated what I already knew - that this CUE is as clear as they get. I kept reopening and getting denied, but after about 5 tries, I finally got my skin condition increased from 0 to 60; however, the CUE was ignored in that decision. This is my second try at just the CUE. In the first try, it only took 9 days to get my decision back with the ridiculous explanation that there was a policy change in 2016 that allowed for giving me 60% now, but now back to 2009. The second sentence in the letter stated CUE has to be based on law and then they make a decision based on policy. Now it appears they are going to try and attack my 60% instead of attacking the CUE itself. It won't happen since I have tons of medical records that show I have been taking meds for suppression constantly since 1998. This was 11 years before I retired. It wasn't until 7 years after I retired that I learned I had been rated incorrectly, and all that time I was still on constant meds for suppression. The exam they are sending me to won't show anything because my skin condition is well controlled on the medications. The only way they can win this is to lie on the C&P exam (and I think they've done that before, which is why I got my own C&P exam and won). I don't think VA can order me to stop taking the medications, and I get them through my Tricare doctor, so they have no control over this situation. I also know my own body. I've tried going off the meds a handful of times, and ended up right back on them within a month. In Florida, it takes over 800 days to do RO Hearing - I do not want to wait that long for my back pay. I am 100% now, so I will be paid the same now or if I am paid in 8 years. And since the VA doesn't pay interest on all that money they withhold for years, I would prefer my money now. If they deny me again, I am determined to find more "new" evidence to invalidate any reason they give to say "no". JustGettingStarted
  4. CUE for Eczema-like condition denied :-(

    Thanks. Following up in eBennies is a good idea. I did email my VSO. That is how I found out I was dead.
  5. CUE for Eczema-like condition denied :-(

    Update, I filed to have my skin CUE reopened on Feb 2, 2018 with lots of legal precedence as evidence this time, since they tried to deny my claim on a Policy Change instead of the law current at the time when I filed before. My claim moved to Gathering of Evidence and VA has put in another C&P Exam request with a suspense date of 30 March. I called VA to let them know I was unavailable most of March because I am travelling and have purchased plane tickets. I talked to my VSO and he says the exam is to determine if my skin condition is rated correctly at 60%. The VA must be grasping at straws because condition code 7806 is very clear that a skin condition with constant use of systemic medication is 60%. Besides, what is current today has nothing to do with my CUE in 2009 since CUE is based on the law and record at that time. I can only assume the VA may try to say I only take the medication to get 60% versus a lower rating. They don't stand a chance because I retired in 2009. I have pharmacy records back to 2004 that show I have taken the medicine daily for at least 5 years before I retired, and continued to do so up to the time I was finally awarded 60% in 2017. I didn't even know I was supposed to be getting 60% for constant use of systemic medication until 2016. In all actuality, I have taken the medication almost continually since 1998. I have only stopped about 4 times to see if the condition would worsen without it, and it did, so I went back on it within a month each time. I take this as good news the St Pete VA knows they skrewed up when they tried to deny my CUE based on a Policy Change. They are grasping at other straws to deny it. :-) On top of all this good news, when I called VA to extend my exam window, the rep I talked to put it in VASRD as a First Report of Death (per my VSO). I had to spend another hour on the phone to get this correct so my benefits wouldn't be cut off entirely. The rumors of my death were greatly exaggerated.
  6. CUE for Eczema-like condition denied :-(

  7. CUE for Eczema-like condition denied :-(

  8. CUE for Eczema-like condition denied :-(

    I still haven't received my denial letter in the mail, so my wonderful VSO downloaded a copy and faxed it to me. Here is the bogus reason they denied my earlier effective date: "At the time of the August 2009 rating, MEDICATION, was not considered systemic therapy as it is an antiREDACTED drug but not an immunosuppressive drug, therefore a higher evaluation was not warranted.....Rating decision dated January 5, 2018 granted a increase evaluation to 60 percent disabling effective the date we received your claim for increase based on policy changes that took effect in 2016 that states the term "systemic therapy such as corticosteroids and other immunosuppressive drugs" that is contained in certain diagnostic codes under 38 CFR 4.118 refers to any oral or parenteral meidication(s) prescribed by a medical professional to treat the underlying skin disorder. Therefore, no clear and unmistakable error is shown." This retired chief knows this is wrong on so many levels. Since when is POLICY the LAW? The policy they quoted is from M21-1 Adjudication Procedures Manual. They don't even have the date correct because DC 7806 was changed on 15 Oct 2015, not in 2016. But I know that a manual is a set of instructions on how to implement law and not the law unto itself. I can also quote MR21-1. Under MR21-1 III.iv.2.B.4.a. Definition of CUE it states, “that a clear and unmistakable error (CUE) exists if all three of the following requirements are met… the statutory or regulatory provisions extant at the time were incorrectly applied, the error must be the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and the determination must be based on the record and the law that existed at the time of the prior adjudication in question.” Code 7806 in CFR 38 has not changed between 2002 and the present. The wording is exactly the same and that is the law. Also, I have a copy of the 2005 BVA decision where the judges reversed St Pete's incorrect interpretation of the law and instructed them on the correct interpretation. I quoted that one earlier. Finally, there was the 2016 US Court of Veteran Claims case on an anti-fungal medication that said under the 2002 revision to Title 38, any systemic drug, not just the two mentioned under DC 7806, are considered as systemic under the law. This was on a 2004 claim and did not change the law, they only clarified what the law is. That is in my previous post. I am going to slam St Pete with VA law. I will be fighting this again. I just hope they will allow me to reopen my CUE claim again versus having to file a NOD and wait 800+ days to see a DRO. At this point, I am not accumulating more back pay (I am now 100% P&T), so the VA is just sitting on my money interest free. I know I have seen that you only have one shot at CUE, so I hope St Pete doesn't use that against me to force me into filing NOD. JustGettingStarted
  9. CUE for Eczema-like condition denied :-(

    63Charlie, You made my day and you are certainly welcome. I hope this case can help a lot of vets because rating decisions have been all over the place on this subject. You can find the full text if you search "Warren, systemic" here: http://search.uscourts.cavc.gov/ If you've read through my post, you probably see that I finally won my skin claim for constant use of a systemic drug (60% under code 7806). I am not taking a corticosteroid or immunosuppresant drug. The key was asking my dermatologist to sign a DBQ that said I was on "constant systemic medication XXXX since 1998". During a routine visit, I handed the DBQ and the supporting evidence to his nurse with a short cover letter. Two days later, it was signed and I won my claim, just not the back pay yet. A Nexus letter probably would have done as well. I should have my denial letter on Monday and will try to reopen my claim right away. I do not want to do a NOD because a DRO hearing in Florida takes over 800 days now. This recent denial took less than two weeks. Once I show St Pete they did not follow the current law in 2009, I hopefully will get a favorable decision just as quick (a girl can dream, can't she?). What really steams me about waiting 3 years for a DRO hearing is the VA doesn't pay interest on all the back pay they are trying to get out of paying. JustGettingStarted
  10. CUE for Eczema-like condition denied :-(

    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
  11. CUE for Eczema-like condition denied :-(

    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.
  12. CUE for SCM-K For Loss of Use of a Creative Organ

    Thanks Gastone. And in a few years, I may revisit this one, and the back pay then will be just as sweet. :-)
  13. CUE for SCM-K For Loss of Use of a Creative Organ

    I know, but I really don't want to take a chance on having VA schedule another C&P exam. It took me too long to get a rating for gyno problems and I am afraid that if I push this, they will find a way to reduce my recent rating and I will lose my new 100% T&P. I have had to many bad C&P exams to risk it. The 100% T&P pay and benefits aren't worth the risk to me. I do have another back pay issue for a skin issue that I do plan to pursue; there is no way they can reduce that rating and I claimed it in 2009. That one is worth about $46,000 in back pay and is very clear.
  14. CUE for SCM-K For Loss of Use of a Creative Organ

    "Has your Private or VMC OB-GYN Specialist, recently or in the past, opined with Clinician Notes or a written statement in support of your pleadings regarding your "Loss of Use of creative organ?" I am still treated by an Air Force Base and see someone different every time I go in. I emailed my new PCM about doing it but he passed on it saying it would be best done by the doctor that did the procedure. I just heard from the office of the doctor that did the procedure this morning that he will not even sign a basic letter that says I was instructed not to get pregnant after the procedure, although all the patients are advised that. He personally feels that he would be frauding the VA since I had the procedure voluntarily. I think I am going to give up on the SMC-K and back pay for it at this time. The VA wants new medical evidence and the only way to get it is to do see a doctor that does Independent Medical Opinion. I am beginning to feel like it is not worth risking the 100% P&T I just got on the $105 a month for SMC-K and about $9,000+ in back pay. I am still going forward with the CUE for my skin condition - that's the big one. :-) JustGettingStarted
  15. CUE for SCM-K For Loss of Use of a Creative Organ

    SMC-K was denied again. The VA is requesting more medical evidence. I have done up a medical opinion letter for the doctor that did my surgery and dropped it off at his office today. The receptionist was very nice and said she would give it to Medical Records to pull my file. I told her that may not be necessary because I had attached copies of everything including my operation report. She took one look at the file and commented that I was very organized and she really appreciated. She is supposed to call me when the letter is signed. I am also going to have my spouse do a letter that states we were told I was not to get pregnant once I had the surgery. If this doesn't work, I'll have to do a NOD I suppose. JustGettingStarted