Ask Your VA Claims Questions | Read Current Posts
Read Disability Claims Articles
Search | View All Forums | Donate | Blogs | New Users | Rules
JustGettingStarted
-
Posts
117 -
Joined
-
Last visited
-
Days Won
2
Content Type
Profiles
Forums
Events
VA Disability and Benefits Information
VA Benefits News
Store
Posts posted by JustGettingStarted
-
-
So it still looks like the forms are still online, but VA has just made it harder to find them. Thanks for the great links provided here. I saved some to a file and added to the Files in the FB page I help moderate.
- Vync and bellrungboxer
-
2
-
I am currently able to get access to the DBQs as this site: http://www.taapmo.com/docs/hr/Disability Benefits Questionnaire1.pdfforms.pdf
-
VA has removed all the DBQs from their website with this statement at the end of the page: "VBA has discontinued the use of public facing Disability Benefits Questionnaires (DBQs). Originally, public facing DBQs were designed to assist Veterans living overseas to obtain medical evidence in support of their benefit claims where limited options were available. Today, VA works with contracted providers in more than 30 foreign countries to conduct disability medical examinations."
I monitor a Veteran's facebook page and often refer veterans to the DBQs for their conditions. In some cases, it is to download and have their doctor fill out a copy; in others, it is so a veteran can fill out the DBQ and take it to their C&P exam to make sure all the facts essential to their claim are covered by the examiner. I had my dermatologist do a DBQ for me after fighting the VA for almost 2 years for an increase because the VA examiners couldn't complete a simple form. It was the key to getting an increase from 0 to 60% for a skin condition and winning a CUE to get 8 years in back pay.
This is an affront to the veteran community making it much more difficult for veterans to win their claims.
I am wondering if the DBQs can be requested under FOIA and posted on some other pages such as here on Hadit. I know it is more work for the admins, but if someone had the time to take this on and provide this vital information to veterans, it would be extremely helpful.
Also, if you could start a new thread just for DBQs, I have blank copies in PDF format that I would be glad to upload. I figure even if they become a bit outdated, they would be better than have zero access to this information.
https://www.benefits.va.gov/compensation/dbq_disabilityexams.asp
-
On 10/31/2018 at 10:13 PM, paulstrgn said:
If you don't mind me asking, your eczema does it cover most of your body? I ask because I also have eczema but only covers part of my body, but I do use a immunosuppressants which was prescribed by my dermatologist on a regular basis. I was originally rated at 10% and now after reading about your CUE I wonder if I need to submit a claim for an increase. I was only prescribed the a year ago so my case is different than yours. Thanks
My skin disease covers very little of my body, but it is extremely painful if not kept under control. I take oral medication to suppress it. If you have eczema and you are taking immunosuppressants, then you should be rated at 60%. File for an increase. Sorry it has taken so long for me to respond. The hurricane damage to my house was much more extensive than we realized at first. It has taken us 8 months of hard work to get back to nearly normal.
-
On 10/31/2018 at 9:13 PM, paulstrgn said:
If you don't mind me asking, your eczema does it cover most of your body? I ask because I also have eczema but only covers part of my body, but I do use a immunosuppressants which was prescribed by my dermatologist on a regular basis. I was originally rated at 10% and now after reading about your CUE I wonder if I need to submit a claim for an increase. I was only prescribed the a year ago so my case is different than yours. Thanks
Hi Paulstrgn,
No, my condition covers less than 5% of my body. The key is that the immunosuppressant has to be oral or injected, not a topical cream that you rub on your skin. It doesn't matter if it is controlling your condition, as long as you are on the oral/intravenous medication, you qualify for the 60% rating.
-
Here are some of the curve balls VA threw at me when I did my CUE claim.
This should have been simple. In 2009 I claimed "eczema" and I was on constant oral medications. VA service connected me for eczema, noted I was on daily medications, and then gave me a 0% rating. I did not have a VSO and I did not know my skin condition should have been rated the same as eczema, so I did not appeal.
In 2002, Title 38 was changed so that anyone with a skin condition rated the same as eczema or dermatitis, would get rated on the area of coverage, or how often the veteran had to take "systemic" medications. The regulations said like "immunosuppressants or corticosteroids" and this caused a lot of confusion in the ratings. Many raters did not include other types of systemics like anti-viral, anti-fungal, or antibiotic drugs in the skin ratings when they should have. That is what happened in my decision in 2009.
Fast forward to 2016, the VA illegally calls me in for re-evaluations on 2 of my conditions. I was over 55, and I had the conditions for more than 5 years. Under Title 38 they are not supposed to do a re-eval without "unusual circumstances". When I questioned why - they said it was because they were backlogged. Like many vets, I was afraid of a reduction so I decided to get smart on my disability benefits.
I went back and looked at all the conditions I had claimed, and compared them to Title 38 and a website called Military Disabilities Made Easy. That is when I found the error on my skin condition. I should have been rated 60% in 2009 instead of 0. I thought my only choice was to claim it and move forward, but someone on a FB page told me about CUE. My research on CUE led me to HADIT. I learned what was and wasn't CUE and also checked my case against the BVA claims - I knew I had a rock solid claim. It was all in the my records and in the claim I did in 2009.
I thought it was going to be easy. I did my claim and was scheduled for a C&P exam. Since my claim revolved around the use of systemic medications, I provided a list of my medications I had been taking back to 2004 with my systemic medication highlighted. Unfortunately, I got a bad examiner that left my medications off because he didn't see my skin disease listed by the VA and he didn't think my medications were important (I saw the same idiot for a knee exam later and confronted him). And although the VA had the same list of medications in my claim file and mentioned in my Statement, they did not "consider all my evidence" and denied my claim because I wasn't on constant use of systemic medication.
I requested my claim be reopened for reconsideration because the doctor left my medications out. The VA reopened it and then they said I missed an exam that was never scheduled and denied my claim again.
I challenged the VA to prove the exam was ever scheduled and requested my claim be reopened for reconsideration again. It was, and the VA scheduled another skin exam. However, the exam and claim ended up being for my chronic wart condition rated at 0 percent instead of the eczema condition. I was denied again.
I was tired of this VA BS. I had an upcoming appointment with my dermatologist, who had never treated me for my "eczema". I was seeing him every 6 months for pre-cancerous lesions. But that didn't stop me from filling out a DBQ, attaching all supporting documentation, and asking him if he would sign the DBQ. He did, and I submitted it asking for my claim to be reopened again. This time my skin condition was increased to 60%, but there was no mention of back-dating it to 2009. At least I had one a battle, but the war wasn't over yet.
So now I submit a CUE claim again for the back date. I was denied because the VA said there was a "policy change" in 2016 (it was actually in 2015 but they don't know their own policies), that allowed for my drug to be systemic in 2016 but it was not considered systemic in 2017. Anyone familiar with CUE knows it has to be based on the LAW at the time the mistake was made, and not policy. When I was going through this, Title 38, which is the law, had not changed since 2002. VA was trying to say "no" based on MR 21-1. The policy change in 2015 was an update in MR 21-1 which helped to clarify what "systemic" drugs were because a lot of veterans were getting rated incorrectly.
So, I requested my case be reopened for reconsideration again, and explained to the VA that CUE has to be based on law, pointed out a VA case they had lost in 2004 for the same condition I had, and also a recent US Veterans Court Case that also explained the law as it applied in my case. What does the VA do? The send me to another exam, and then they say they were denying my "increase" because I was already receiving the highest rating possible for my skin condition. They completely ignored my request for an earlier effective date. Aaargh!
About this time, RAMP, had just opened up to all veterans. You did not have to have an invitation letter. Glory be - I would no longer have to deal with regional offices.
I watched a video on one of the VA official sites that said if you wanted to skip DRO Review, fill out a NOD, fill out a RAMP opt-in, and submit them together. I did just this and requested Higher Review with an informal telephone conference. This was on 21 May 2018.
Then I get a letter saying I cannot opt into RAMP because there was already a decision on my BVA case. ???? There never was a BVA case, so I know this was impossible. I called VA and was told to wait until my NOD was in the system, and to call back. About a week later I called, explained the situation, and was told my original RAMP opt-in letter dated 21 May would be used. Things looked squirrely in eBenefits, but I kept calling and checking and everything finally fell into place. Around the first week of Sept, I got a phone call from RAMP. They wanted to know if I was ready to talk or if they should call back. I was 8 hours from my home but I had brought my files with me because I knew I was getting close to the RAMP 125-day goal. I went out to my car and had my telephone conference. They brought up the "policy change" and I said yes, but that wasn't the law and explained the law hadn't changed since 2002 and that CUE could not be based on MR21-1. I pointed out all the vital evidence - the 2009 decision letter that said I had the skin disease and I was on a daily medication that was systemic, the pharmacy records that showed I continued to take the medication since 2009, MTF record that showed I was put on the medication in 1998.
On 13 Sep 2018, I got a call from my VSO. Exactly 120 days from when I had done my RAMP claim, I was given an earlier effective date of May 2009 for my skin condition.
It was a long, frustrating road, but every time I could see the obvious errors made by the VA. I do not know how much of it was intentional and how much of it was people that didn't know how to read or do their jobs properly, or even someone trying to protect their bonus.
Now it has been 6 weeks since I won my CUE and I am waiting for my back pay. However, I know the first time I received back pay on a claim, it took 4 months. The second time it took 6 weeks. This is a larger amount, around $40K, so I expect it may have to go through additional audits.
No Longer,
JustGettingStarted
-
For anyone following this - check me out under the "Success Stories"!!!
-
Thanks everyone. I couldn't give up because I knew I was correct on this. However, VA put me through the ringer. I am so glad RAMP opened up and I was able to get this straightened out.
Now it has been 6 weeks, and I am still waiting for the back pay. I am sure it will come - I got the letter that says what I was paid, and what was actually owed.
A lot has happened since I made the announcement on Sep 13th. We got stuck in Canada when our truck broke down and had to wait for parts. While camping in the Nissan parking lot for two weeks, Hurricane Michael struck my home. Our home took moderate damage and of course utilities have been out. Today is the first day I have been able to go online and catch up on bills and other paperwork.
Now I just need to find the DFAS number to contact to make sure the back pay is in the works. It will come in handy paying for a few "upgrades" to our house as it is repaired.
No longer,
JustGettingStarted
-
I just got a phone call from my VSO who said my RAMP decision letter will be mailed out today. I won an earlier effective date (CUE claim) for my skin condition! I was denied on the PN earlier effective date which I knew was a long shot. My skin condition was rated at 0 in May 2009 and I had an overall rating of 60. In Jun 2017, I was finally increased to 60 for my skin condition. If I had been rated correctly for my skin condition in 2009, my overall rating would have been 80. So the back pay will be the difference between 60 and 80 percent from May 2009 to June 2017 -- not bad. I can't wipe the silly grin off my face. You can see my other posts in the CUE Forum.
-
My VSO didn't get back to me today, and I know he is off tomorrow, so being the impatient person I am, I just called VA myself.
The person I talked to was very helpful. He said I did not need to file RAMP again; they would use the opt-in I already submitted. Also, my claim will skip the DRO and Statement of Case, and be sent straight to RAMP,--do not pass Go, do not collect 800+ days of waiting.
He put a note in the system to make sure everything is laid out clearly for the RO. Hopefully, someone at the RO can read and my claim will soon be off to RAMP bliss.
I went for Higher Review (no new evidence), but if I get denied any part of my claim, I can add new evidence and all the lovely info provided by Berta, and switch to the Supplemental Lane. I believe my claim for an earlier effective date for my skin CUE is as solid as they come. If the peripheral neuropathy gives me any trouble, I've got that neurologist from Wilford Hall in my back pocket.
Will keep you posted. Fingers crossed that within 125 days I will be posting in the "I won my CUE" thread.
JustGettingStarted
-
My appeal showed up in Vets.gov yesterday. The status is 13 to 30 months for DRO Review. However, when I filed NOD, I checked Traditional BVA on my NOD per my VSO's instructions (there is no block for RAMP right now) and attached the RAMP opt-in per instructions on the VA video. I hope it doesn't sit in someone's box actually waiting for DRO Review.
I called my wonderful VSO this morning to ask if I need to resubmit RAMP since I got that denial letter earlier this week. He has to check on that.
I am keeping records of all your advice because I hope to use it in my Form 9 when I finally get a Statement of Case. Maybe the DRO will realize their errors when they try to write the SOC - miracles happen every day, right?
On the PN, from Asknod's recent post, I learned I don't need CUE to get an earlier effective date. I can reopen and that still leaves the CUE card open for later if I need it. Asknod said if you complained of something when you got out, and it didn't get service connected, then it was service connected later, and you have evidence they didn't use the first time, you can reopen the original date. I think that fits my PN really well and I believe the records I have are highly "relevant". Just in case there are more doctor's notes I don't have, I called Wilford Hall yesterday and faxed a records request. The STR I have says something like the MRI I had certainly supports my clinical symptoms of radiating pain and numbness.
In my case, I complained of radiating pain and numbness from my cervical stenosis when I got out and it is in my 2009 VA exam. PN was denied service connection because of no diagnosis. In 2016, I was diagnosed with bilateral PN at a C&P exam and given 20% each side. When researching to request an earlier effective date, I found no records from my evaluation by a top AF neurologist in my C-File although I had a copy in my STRs, and the neurologist was listed twice as a treating neurologist in my C-File (info I provided when I was retiring). Per the Asknod blog, this is better than CUE because it doesn't dead-end like CUE.
-
1 hour ago, Berta said:
Thanks for this Berta, I will put my questions in comments in Bold. You are certainly up and at it early this morning.
To:
VARO Date:
C #:
Attention to : ( put here the alpha part of the alphanumeric code that is on the top right hand side on the decision-it is the initials of the last person who handled your claim)
This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109 A.
You have violated 38 CFR 4.6, to my detriment:
“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6
38 CFR 4.6:
The CUE is within your recent ( date ) decision and within your 2009 decision and the Legal evidence you failed to apply to my CUE claim of ( date of the CUE they just denied) is found within this conclusion by Judge Bartley, US CAVC:
“ Notwithstanding my disagreement with the majority's interpretation of DC 7806, I concur that remand is necessary in this case because, as my colleagues note, 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.'" Ante at 5 (quoting M21-1MR, Part III, subpt. IV , ch. 4, sec. J(3)(f)). Given the evidence of record that establishes that Mr. Warren is receiving systemic therapy that is orally ingested, R. at 454, 456–i.e., 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 am reluctant to quote the same MR21-1 that VARO used to deny my CUE claim, but I know that is part of the CAVC case.]
Source: UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 13-3161 TREMELL L. WARREN, APPELLANT, V. ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Decided May 10, 2016 )
My medical evidence in your possession, since ( date) reveals I have been on systemic medication since ( put date here).
The Warren case also clearly states:
The guidelines for rating skin conditions, set forth in the VA Adjudication Procedures Manual (M21-1MR), provide that "[t]he term 'systemic therapy such as corticosteroids or other immunosuppressive drugs,' that is contained in certain [diagnostic codes] under 38 C.F.R. § 4.118, refers to any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder." M21-1MR, Part III, subpt. IV , ch. 4, sec. J(3)(f); but see Johnson, 27 Vet. App. at 504 (holding that the "use of a topical corticosteroid is systemic therapy within the 5 meaning of Diagnostic Code 7806"). Further, the M21-1MR explicitly states that "[f]or more information on the meaning of 'such as' in the rating schedule, see Mauerhan v. Principi, 16 Vet.App. 436 (2002)." Ibid Warren V. McDonald. [Once again, this is the exact same "policy" that St Pete used against me, but maybe that would help to show that the policy went in favor of this claim from 2004.]
You have also erred in your interpretation of M21-1, Part III, Subpart iv
Veterans Benefits Administration October 5, 2015
In part:
“f. Systemic Therapy Such as Corticosteroids or Other Immuno-suppressive Drugs The term “systemic therapy such as corticosteroids or other immunosuppressive drugs,” that is contained in certain DCs under 38 CFR 4.118, refers to any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder. Medications that are applied topically (directly to the skin), including topical corticosteroids or immunosuppressives, are not considered systemic for VA purposes. Note: When there is a question as to whether or not drug treatment is systemic therapy for rating purposes, the Veterans Benefits Administration (VBA) must request clarification from a VA or other licensed medical professional.” [This is exactly what St Pete is using against me. They are saying that since MR21-1 changed in 2015, and I did my request for an earlier effective date in 2017, I am not entitled to an earlier effective date of 2009. Don't I need to mention Title 38 "skin conditions" hasn't changed since 2002?. Or, I am just saying they are wrong using this change in 2015 to deny my claim, because it was used in this CAVC claim to go in favor of the veteran?]
The Warren USCAVC decision is dated May 10, 2016.
Warren filed the claim in 2007. My initial denial, enclosed, is dated ( ). [Warren filed his claim in 2004 and was given a 0% rating in 2007. He did a NOD in 2007 and was given 10% despite a 2007 exam that stated he was on constant oral Lamasil since 2004. 2004 is stronger since my initial claim was in 2009. "In December 2004, Mr. Warren filed a claim for benefits for onychomycosis." ]
Warren V McDonald does NOT question the timeliness of his claim, as to any regulations in 38 USC,38 CFR, or M21-1MR regarding any potential retroactive EED.
Neither Warren, nor Mauerhan V Principi, nor any VA case law or regulation, to include M21-1MR specifically state provisions of Diagnostic Code 7806 do not apply to me,(Put your name here)
I request that you determine CUE has been made in both of the enclosed decisions ( the initial decision- 2009) and the recent decision of (date) and that you properly rate my claim under my continuous use of“systemic therapy” as defined in the Warren decision with a proper rating and proper EED ( earliest effective date )
Enclosures: Respectfully,
The 2 decisions ( _ pages)
( I always total enclosures and put my name, address, and C file # on everything )
Just a draft-----at this point
Now a couple of questions come up:
First, do I withdraw my NOD and reattack this at VARO? Can I withdraw the NOD?
Second, I have the latest decision letter that totally ignored my request for an earlier effective. Legally, that is the more current claim. Do I ignore it, or is that one the one I address.
Third, when I decided to do a NOD and request RAMP, I also included a request for earlier effective dates for my bilateral cervical radiculopathy. This case is almost exactly like the one that ASKNOD did on his recent newsletter about the guy with TBI that found records years later ( https://asknod.org/2018/06/02/lz-cork-understanding-§3-156c/) So I was attacking this as a reopen. In 2009, I claimed my neck, not realizing that all my radicular symptoms should be claimed separately. In my retirement physical my doctor wrote "cervical spondylosis with radicular symptoms". My STRs are full of treatments for numbness and pain radiating down my arms and hands, and it is noted in my 2009 C&P exam. In 2009, the VA said I did not have peripheral neuropathy but they did not explain all the radicular symptoms. In 2016, I learned I could claim this as a secondary condition to my neck, and was awarded 20% for each side by VA in 2016. As for the missing info, in 2009, the VA did not acquire my examination by the top AF neurosurgeon although I had identified him as a treating doctor. For some reason, the neurosurgeon notes I have in my copy of my medical records from that exam, were not in the copy of the C-File when I requested it. It is not checked off anywhere in my C-File that VA bothered to order those records, although there is indication they ordered some other records. They may have assumed the records were already in their copy of my medical records, but there is no evidence of it. I tried for an earlier effective date in 2016, but VARO said I did not have a diagnosis of peripheral neuropathy in 2009. I know this is a whole other ball of beeswax to be throwing at you.
The big question is whether to continue down the NOD path or withdraw it? I am so tired of dealing with the knuckleheads at St Pete and them making up their own rules. I was hoping for RAMP to be my savior here, but so far that isn't going well. It didn't occur to me when I filed NOD that it could take St Pete over a year to do their SOC. The good thing is I have my 100% P&T and I am not in a hardship situation. However, VA is sitting on a lot of back pay owed to me, and they are doing it interest free.
Thanks for all your help again Berta,
JustGettingStarted
-
3 hours ago, Berta said:
You have certainly done a lot here to support your claim.
Has any doctor stated in writing anything (that VA has) that would satisfy this part of the above M21 download:
"f. Systemic Therapy Such as Corticosteroids or Other Immuno-suppressive Drugs The term “systemic therapy such as corticosteroids or other immunosuppressive drugs,” that is contained in certain DCs under 38 CFR 4.118, refers to any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder. Medications that are applied topically (directly to the skin), including topical corticosteroids or immunosuppressives, are not considered systemic for VA purposes. Note: When there is a question as to whether or not drug treatment is systemic therapy for rating purposes, the Veterans Benefits Administration (VBA) must request clarification from a VA or other licensed medical professional. "
What, if anything , have they done regarding that Note: In the DBQ signed by my dermatologist it states: "oral [medication] [#]mg per day, used since 1998 for suppression". Then I had another unnecessary C&P exam. I can't get a copy of it until I wait months for a FOIA request, but it said something similar. I would have to ask my VSO if it mentioned "systemic" in particular but he is out of town right now. He read it to me and I know it was accurate and felt it would support my claim. I had a small flare-up at the time of the exam, despite being on suppressive medication, and it was noted on the the exam.
"Note: When there is a question as to whether or not drug treatment is systemic therapy for rating purposes, the Veterans Benefits Administration (VBA) must request clarification from a VA or other licensed medical professional. " [Good one, Berta]
I will prepare a CUE claim for you and post it here later.
-
This is a case that is similar to mine that was lost at BVA and went to CAVC. The CAVC sided with the veteran that his oral antifungal drug is a systemic medication, and then they remanded it. The court uses Mauerhan v. Principi to say any medication that affects the entire body is systemic. It is based on the 2002 change to the skin law.
The meat of the decision is this:
"Because "systemic therapy," which is the type of therapy that creates compensability, is connected to the phrase "corticosteroids or other immunosuppressive drugs" by "such as," those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating. Mauerhan, 16 Vet.App. at 442. Consequently, the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs." Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs."
http://www.veteranslawlibrary.com/files/CAVC_cases/2016/Warren_13-3161.pdf
-
Are you talking about the RAMP letter that says I can't do RAMP right now? That letter was all wrong because St Pete hasn't even processed my appeal yet. From I'm learning, it could take them a year or longer to do the Statement of Case. So I have no BVA decision letter.
There wasn't much at all to the last denial from St Pete for my skin condition because they completely ignored my request for an earlier effective date. It is like it never happened. They treated it like I was requesting an increase for a condition that is already at the max rating.
I am attaching a copy of the last real denial which used false reasoning to deny me. They based the denial on an update to MR21-1 that occured in 2015 (The VA said 2016, but they got the date wrong, of course). The skin law is Title 38 and it has not changed since 2002. The update to MR21-1 was because this was a common error many evaluators where making. You can search BVA decisions, and find decision after decision in favor of the veterans because the VAROs did not apply a broad enough definition of "systemic" medications. If you check the BVA decisions, you can see where other drugs, such as anti-inflammatories, antivirals, antifungals, etc... were not being counted as systemic drugs. In the vast majority of these cases, the veterans won their claims on appeal. I have never seen MR21-1 used against a veteran in the BVA decisions. Here is where the change to MR21-1 is that they used to deny my claim: https://view.officeapps.live.com/op/view.aspx?src=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiv%2Fch04%2F10-5-15_Key%20Changes%20M21-1III_iv_4_SecJ.docx
-
4 hours ago, Berta said:
"The second decision letter was in Jan 2017 when they said I was taking the meds constantly in 2009; however, my med was not considered a systemic medication in 2009. It went on to say there was a policy change in 2016 that reclassified it as systemic. That was a serious error since the skin law did not change since 2002 and we all know the VA cannot base CUE on policy. "
Do they mean that decision as "recent"? [The date of the second decision letter was Jan 2018. Sorry, wrong year].
I am baffled here- did you file a formal CUE on the 2017 decision? [I filed a reconsideration for an earlier effective date on the Jan 2018 decision]
"I faxed the NOD in on 22 May 2018" on the Jan 2017 decision? How would that be a timely NOD????? [Again, the date was Jan 2018].
Or do you mean this decision? in your June 2017 post:
"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)."
Have you posted the June 2017 denial here anywhere?
I answered the questions above in brackets. Sorry for the confusion, I kept writing Jan 2017 when I should have written Jan 2018.
Here is a synopsis of the denials:
6/6/2017: Evaluation of [skin condition] is continued as 0 percent disabling.
We reviewed the evidence received and determined your service-connected condition hasn't increased in severity sufficiently to warrant a higher evaluation. [This is when the examiner left my medications off the exam, although I provided them to him. Also, the rater did not weigh all the evidence that had been submitted. I had lots of medical and pharmacy records to support the constant use of systemic therapy in my file].
10/01/2017: We received you reconsideration of the evaluation for your service-connected [skin condition]. We scheduled you for a VA examination and a medical opinion regarding your current continuous treatment. However, we received notification that you were unavailable for your scheduled VA examination on September 8, 2017. The results from this scheduled exam may have allowed us to grant an increase in your service-connected disability compensation. If in the future you provide us with your good cause reason for missing your scheduled VA examination and you indicate a willingness to report for another VA examination we will reconsider your claim. We have continued our non-compensable evaluation for [skin condition]. [The exam was never scheduled and VA admitted that later. I got my own dermatologist to do a DBQ at this point and reopened the claim.]
1/05/2018: The evaluation of [skin condition] is increased to 60 percent disabling effective May 5, 2017.
Service connection has been established from the day VA received your claim. When a claim of service connection is received more than on year after discharge from active duty, the effective date is the date VA received the claim.
We have assigned a 60 percent evaluation for your [skin condition] based on: Constant systemic therapy required during the past 12-month period. This is the highest schedular evaluation allowed under the law for dermatitis or eczema.
[They ignored my request for an earlier effective date when I filed for the increase, but at least I finally got the increase.]
1/23/2018: Whether the effective date assigned for [skin condition] was clearly and unmistakably erroneous and evaluation of [skin condition], currently 60 percent disabling.
Rating decision dated August 11, 2009, granted service connection for [skin condition] at 0 percent disabling effective May 1, 2009, day after discharge. The rating decision correctly assigned a 0 percent evaluation based on [skin condition] involving less than 5 percent of the entire body or less than 5 percent of exposed areas affected. The 2009 rating decision noted that you continue to take [medication] on a daily basis to reduce flares of the condition. At the time of the August 2009 rating, [medication] was not considered systemic therapy as it is an anti-[redacted] drug but not an immunosuppressive drug, therefore a higher evaluation was not warranted.
We received your claim for increase evaluation for [skin condition] on May 5, 2017. 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 or other immunosuppressive drugs" medication(s) prescribed by a medical professional to treat the underlying skin disorder. Therefore, no clear and unmistakable error is shown. [They quoted MR21-1 and not Title 38 to determine CUE here. I objected because CUE cannot be based on policy; it has to be based on law. The skin law in Title 38 has been exactly the same in 2002 and that is what my request is based on.]
5/17/2018: The evaluation of [skin condition] is continued as 60 percent disabling. We have assigned a 60 percent evaluation for your [skin condition] based on: Constant systemic therapy required during the past 12-month period. This is the highest schedular evaluation allowed under the law for dermatitis or eczema. [In this decision, my request for an earlier effective date was completely ignored.]
4 hours ago, Berta said: -
25 minutes ago, Berta said:
Did you get the decision?
There is no appeal yet so there is no decision. That is one of the things that is so wrong with the letter.
I faxed the NOD in on 22 May 2018. According to Vets.gov, I should check after 3 months if it doesn't show up on their site. Then St Pete will have to do a Statement of Case before they file the appeal with the BVA. I think Vets.gov is saying it can take 12 to 18 months before the appeal is ready to go to BVA/RAMP.
-
My RAMP application is not off to a good start. I followed the instructions on this VBA video where it says technically you can't file NOD and RAMP at the same time, but you really can do it by filing the two together (Start at 7:00 to cut to that part).
Today, I got a letter from the Appeals Management Office at Washington DC that says I can't file RAMP because I no longer have an open appeal. It even says there was a recent decision on my appeal and I should refer to that. This is so wrong since St Pete hasn't even logged in my appeal yet and I've never had one.
This is just so discouraging that one hand doesn't seem to know what the other is doing. I've attached the opening of the letter I received. I guess I will have to wait for St Pete to process my appeal before I can begin the RAMP process. I was hoping to get a jump on this, but with my luck, RAMP will be as back-logged as the traditional BVA appeal system by the time St Pete gets to my claim.
I am beginning to wonder if I should withdraw my NOD and go back to the reconsideration hamster wheel. At least that is a wheel I know.
-
I saw on this site where a BVA CUE claim has to be in the form of a motion? Is that still true and why?
If using RAMP, does a CUE claim have to be in the form of a motion?
JustGettingStarted
-
8 hours ago, Berta said:
One question- are you 100% sure they have all of your Tricare med recs and pharmacy stuff?
BERTA, I am sure because I have submitted them more than once and more importantly, they are in my C-FILE. Tricare has a Blue Button much like myHealthevet. I was able to pull up my pharmacy records from 2004. Also, my C-FILE had all my military treatment records with my initial diagnosis, the appointment where I was put on medication constantly for suppression, and subsequent records showing I had a pharmacy waiver to be on the meds constantly. It is also in my 2009 C&P exam about 4 times.
I even have two decision letters that state I was diagnosed and put on the medication constantly while in service. The first was from 2009 when I was service connected at 0 because I was rated on area of coverage instead of systemic meds. The second decision letter was in Jan 2017 when they said I was taking the meds constantly in 2009; however, my med was not considered a systemic medication in 2009. It went on to say there was a policy change in 2016 that reclassified it as systemic. That was a serious error since the skin law did not change since 2002 and we all know the VA cannot base CUE on policy.
I have seen plenty of BVA cases prior to 2009 where my med was classified as systemic and a recent US Veteran case on toenail fungus also supports that. I think that case was for a 2004 claim. It said the 2002 Title 38 was written so any medication taken orally or by injection for a skin disease was considered systemic. Topical meds don't count. If the veteran had to use it over a large enough area to be absorbed and be systemic, then they could still be rated by area of coverage.
BUCK52 - I did not need to inquire about the DRO wait time. I know lots of Florida vets through Facebook that have been through that wait and also discussed with my VSO.
-
4 hours ago, Buck52 said:
JustGettingStarted
Have you ever considered request a DRO Heaing at your R.O.
Excuse my French, but H - E - double hockey sticks, No! That kind of hearing takes over 800 days in Florida. The reason I reopened my claim over and over again was to avoid that long wait. As it was, with reopening the claim over and over, I did get my skin rating increased from 0 to 60% which put me at 100% P&T. So now I am enjoying the benefits of P&T such as no property taxes, life insurance, etc... If I had given up and done DRO Review, I would still be waiting for that 100%.
This is why I skipped DRO Review and went straight to RAMP. I knew VARO was getting ready to decide on my claim again so I was following everything on RAMP so I could make an intelligent decision. I also discussed it with my VSO. RAMP was averaging decisions in 60 days before they opened it up to everyone. They also have a higher approval rating than BVA. My VSO knows two other VSOs that got their claims approved by RAMP in only 30 days.
JustGettingStarted
-
Broncovet -
Did you read my previous post mentioned above?
I have reopened this claim 7 or 8 times. The first time I claimed it, my C&P examiners left my medications, essential for 60% rating, off the exam although I listed them 4 times. I complained about the exam and the VA reopened again. This time they denied my claim saying I did not go to an exam that was never examined (and I have that in writing). Reopened again and I was scheduled for a new skin exam - when I arrived I found that someone at VA had opened a claim for increase on my left hand and that was all the examiner could look at. I was denied again. I opened it again and was denied because the VA said I used topical medication which was not systemic whereas nowhere in my records does it mention topical medication. Then I had my dermatologist do a DBQ and I was finally awarded 60% for my skin condition, but my request for a back date was not addressed. I reopened the claim again for the back date and it was denied because VA said Title 38 did not consider my medication to be systemic in 2009 but it was systemic in 2017 due to a policy change. I reopened the claim again pointing out that the skin law in Title 38 for my claim had not changed since 2002 and they could not decide CUE based on policy change; it had to be based on law. My claim was reopened again, and the VA treated it as an increase instead of a request for an earlier effective date, sending me to yet another exam. This was made even more ridiculous since I already have the maximum rating for the condition.
I have cited the regulation every time I did this. I also cited two cases decided at the US court of veteran appeals that supported my claim (see my other post mentioned above.). Every time, the VA ignored my request for an earlier effective date and treated my claim as an increase, or ignored my medications, or gave me the wrong exam, or listed the wrong medication, or did not follow the law. Believe me, I have read every decision carefully, along with my VSO. We are both shaking our heads over how ignorant the examiners are, or they think I must be. My VSO said he has learned more about CUE from me than he learned in a 2-week class he had to sit through.
I have read a dozen cases where veterans with the same skin condition on the same medicine have won their cases at the BVA level. That is why the policy in MR21-1 was changed in 2015 - too many VAROs were making errors in interpretation of the law, which is the foundation of CUE.
I agree with Berta - the raters at the regional office cannot read.
JustGettingStarted
-
Thanks! I am printing out 38 CFR 4.6 - Evaluation of evidence to have in front of me when I talk to the RAMP decision maker. That's a keeper.
§ 4.6 Evaluation of evidence. The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.
-
I have another thread at the link below. Two years ago I filed for an increase on my skin condition and requested a back date to May 2009 when I retired. I have been through a lot since then. For skin conditions rated the same as eczema, the condition is rated on area of coverage or on how often you have to be on systemic (oral or needle) medications. I was given 0% in 2009 when I retired and didn't know that I was being low-balled because I did not know my condition was related analogous to eczema.
When I learned of this two years ago, I put in a claim requesting a higher rating and a back date to 2009. First, I had an inept examiner that left out my medications. I was denied and I reopened my claim for reconsideration saying the examiner had messed up. Then my claim was denied again because the VA said I did not attend a new exam; they later admitted the exam was never scheduled. Then I was scheduled for a new exam, but I noticed that someone had opened up a claim for increase on warts on my left hand, which was service connected at 0 when I retired. I was concerned this skin exam was for the wrong thing, but I was assured by IRIS, and the VA 1000 number, that it was a full skin exam. After travelling 1.5 hours to the exam, I learned the examiner could only look for warts on my left hand and could not discuss my other skin condition. I was denied again.
At this point, I asked my dermatologist to sign a DBQ I filled out for him although he had never treated this particular skin condition. However, I provided all the medical info and he signed the DBQ. I reopened my claim again, sent in the new DBQ, and was finally awarded 60% and became 100% P&T, but VA ignored my request for an earlier effective date. So I reopened the claim again. It only took 9 days for them to deny me saying my medication wasn't considered systemic and that due to a policy change they were able to reward me 60% in 2017 but they could not award 60% in 2009. I quickly pointed out that CUE had to be based on law, not a "policy change", and that the skin law in my case had not changed since 2002. There were also US Court of Veteran Appeal cases that supported my claim (see more at the link below). My claim was opened again.
This time VA sent me to another exam, which I felt was completely unnecessary since new evidence cannot be used in a CUE claim. According to my VSO, they wanted to know if my condition was as bad as had just been determined a couple of months prior. I felt like they were trying to prove fraud at this point, like I was only taking the medication I've been taking for 20 years to get a higher rating. The exam was on 9 May 2017 and went well. Despite being on suppressive medication, my skin disease made an appearance. I reviewed the exam with my VSO and it seems the examiner got all the facts necessary for a success.
I just got a copy of my decision from my VSO today. Once again, the letter completely ignored my request for a back date. Instead they acted as if I had requested an increase and denied that. I was already rated at the maximum for my skin condition.
So today, I filed a NOD and filed the Opt-in for RAMP. I have selected the Higher-Level Review with the "informal conference" which could increase the length of time for my RAMP decision. However, I don't want any surprises. But as long as I was filing RAMP for the skin disease, I added a request for an earlier effective date for my upper peripheral neuropathy.
I am so glad that RAMP has been opened to everyone (unless you have a docket number). I wanted to jump on the RAMP wagon early before it becomes back-logged like everything else. My VSO was all for this too.
I will keep you posted on how this goes.
.
If medication successfully treats your condition, or lessens the severity, how do ratings work?
in VA Disability Claims Research
Posted
Using medication is not supposed to affect your rating, unless the rating for the condition specifically mentions medications and how they affect the rating. For instance - "skin condition with use of systemic medication, 60%".