hypertension Using The Rating Criteria In Effect At Service Connection?

[dav_marine72]

Hi Everyone,

I have a new one for the crew. I was awarded service connection for eczema in July 22, 2002. They assigned me a 0% rating based on the criteria in effect for 2004. This service connection came from a DRO review in 2004 which consisted of a total of 8 issues. The DRO gave me the initial 0% for eczema, initial 0% for hypertension, changed my asthma rating from 10% to 30% back to 1997, denied service connection for a mental disorder secondary to my sc back (since connected and rated at 50%), and denied higher ratings for my back, chronic right testicle pain, chronic left foot weakness and pain, and chronic right foot weakness and pain.

This issue has two problems with it. First and foremost I appealed all issues above in 2005 and have a copy of the appeal sheet. I verified the sheet was in my c file too earlier this year. At that point I thought my back, right and left feet, testicle pain, eczema, and hypertension went to the BVA. I never received anything after that pertaining to just my eczema and hypertension. My form 9 stated the same thing as the appeal sheet that I wanted all the decisions made in the 2004 rating to go to the BVA. I found out eczema and hypertension never made it to the BVA after my March 2008 BVA decision. I even went to the RO during the waiting period for the BVA decision and talked with a VA rep who verified it went to the BVA. So much for that. I am assuming because I have many service connections and a large c file someone got confused. So the RO is contending that decision was final.

Now I am contending the intial rating should be re-opened based on the appeal document, form 9 and the benefit of doubt doctrine. To make things take another turn I realized their decision was based on the 2003 criteria for eczema. The criteria was different in 2002 and looks like it is much easier for me to get 10% than the changed 2003 criteria. Below I have listed the different ratings. I have documented medical records showing on different visits my eczema was on my hands, arms, chest, and scalp. Under the 2003 criteria you need to have at least 5% of your entire body covered. I believe during flare-ups I meet this anyway but the RO says I don't. I also use steroid cream daily but they are saying it's only topical which falls under the 0% rating. I have told them many times that my eczema itches so bad I want to cut it off. I had several lay statements submitted that they see me itching and bothering me.

So my question is even though I am saying I appealed it and have proof hence it's not a final decision isn't this a CUE anyway because they should have used the criteria which would have given me the highest rating?

The criteria in effect for July, 2002 seems more beneficial. Here are the two ratings:

2002 - 7806 Eczema:

With ulceration or extensive exfoliation or crusting,

and systemic or nervous manifestations,

or exceptionally repugnant ............................... 50

With exudation or itching constant, extensive lesions,

or marked disfigurement ........................ 30

With exfoliation, exudation or itching, if involving

an exposed surface or extensive area ............. 10

With slight, if any, exfoliation, exudation or

itching, if on a nonexposed surface or small

area ................................................................... 0

2004 - 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

20 to 40 percent of the entire body or 20 to

40 percent of exposed areas affected, or;

systemic therapy such as corticosteroids

or other immunosuppressive drugs required

for a total duration of six weeks or

more, but not constantly, during the past

12-month period ........................................ 30

At least 5 percent, but less than 20 percent,

of the entire body, or at least 5 percent,

but less than 20 percent, of exposed

areas 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 .................... 10

Less than 5 percent of the entire body or

less than 5 percent of exposed areas affected,

and; no more than topical therapy

required during the past 12-month period 0

Or rate as disfigurement of the head, face,

or neck (DC 7800) or scars (DC’s 7801,

7802, 7803, 7804, or 7805), depending

upon the predominant disability.

[broncovet]

Marine..

You need to not walk, but run to the post office and send them a "Special Handling Request" (SHR) so they get it before Nov. 17, preferably with copies of stuff that your VARO has shredded. Mail it certified mail, return receipt requested, so when the RO says they lost your Special Handling Request, you have proof. If you dont have copies of the stuff you mailed earlier, that the VA shredded, send the SHR anyway. The way it is right now, if you dont send a SHR before Nov. 17, the VA can deny you based upon they didnt receive your SHR in time.

It is like a "stautue of limitations" limiting you (the VA has no limits..they can take as long as they want to process your claim, but you had better not be one minute late) on the time to complain about shreddergate. Take no chances/no prisoners. If the VA does not respond promptly to your SHR, file a complaint with the VAOIG and consider a Writ of Mandamus. You have fought for others rights, now you have to fight the VA for yours.

[jbasser]

That is a good find.

I believe the criteria that must be used is the one in effect when the claim was awarded.

You got t hem, now go get them.

J

[pacmanx1]

dav_marine72,

Please check your facts and dates, The regulation for rating skin changed July 31, 2002 with the effective date of August 31, 2002. If you were rated before August 31, 2002, VA will still deny your claim. You must have been rated for eczema after August 31, 2002 to get the rating changed. So If you were rated before August 31, 2002 the rating is correct, I think because the regulation changed you would have had to file a claim based on the change of the regulation. Someone else may chime in to clarify this but I am not sure an appeal would result in a claim awarded in your favor.

[dav_marine72]

Pete,

I was wondering when the ratings actually went into affect. I'm good though because my service connection date is July 22, 2002. That means I actually fall under the July 1, 2001 rating which is the same as 2002. Now is this considered a CUE if they try and say that I never filed an appeal? My award letter never mentions the criteria in effect for 2001 or 2003 they just compare my symptoms against the 2003 - criteria.

[pacmanx1]

dav_marine72,

What date did you file your claim?

what date did you get your 0% service connection for eczema?

what date did you file the NOD?

what date was the SOC?

what date did you file the form 9 appeal?

[dav_marine72]

Hey Pete,

What date did you file your claim? July 22, 2002

what date did you get your 0% service connection for eczema? August 10, 2004

what date did you file the NOD? September 24, 2004 I filed one / December 15, 2004 Disabled American Veterans filed another for me. (not sure why)

what date was the SOC? April 20, 2005

what date did you file the form 9 appeal? September 24, 2004 / Disabled American Veterans again filed a file 9 for me on Augiust, 1, 2004. Both form 9s state I want to appeal all of the issues listed on the statement of the case.

On April 20, 2005 I recieved a document called an appeal status election where I selected no. This action satisfies none of my issues. The issues listed were:

Evaluation of back condition

Evaluation of residuals of fracture, right, 3rd metatarsal

Evaluation of residuals of fracture, left, 3rd metatarsal

Evaluation of chronic testicular and groin pain

Evaluation of hypertension - they are denying that I appealed this too.

Evaluation of eczema

All six of these had denials dated August 10, 2004. That's when I filed the form 9.

I sent the VA a letter dated September 24, 2004 stating what I thought all the above conditions should be rated. The only issue not discussed was eczema. I can only speculate I forgot to add it to the letter. I also state in the letter I will be filing a form 9 for all issues decided on August 10, 2004.

After the April letter I expected all of these issues were headed to the BVA.

In December 2005 I received a letter saying that my case wads recieved at the BVA. No mention of what issues. This was when I went to VARO and they told me eczema and hypertension did go. I then sent the BVA a letter and additional evidence pertaining to all six issues dated December 3, 2007 which was stamped received by the BVA on December 13, 2007.

I never received anything after April 2005 saying that hypertenision and eczema were separate from these issues and that I needed to act on them.