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.

[pacmanx1]

OK, you filed your claim for eczema in July 22, 2002 and the claim was not rated until 2004 this means your claim should fall under the August 2002 regulation changed. Since the regulation changed before you were rated VA should have given you a C & P exam prior to rating to determine the level of your condition, if they did not this also is grounds for an appeal. It sounds like all your claims are still open and you should be very near of getting a hearing which should address all the issues. Since your claims are still pending on appeal this is not a CUE claim. VA needs to understand that there are different types of treatment and there are some topical treatments that are corticosteroids and some are not. Check your prescription (s) to see what yours says, if it is or not. If it is you should meet the 10% rating with the effective date of August, 2002 the date the regulation changed. If I am off others will chime in and give their opinions.

Did you have a C & P exam after the regulation changed and before you were rated?

What did it say?

[dav_marine72]

Pete,

The back, right testicle pain, left and right feet just got remanded from the U.S. court back to the BVA. When I brought up the fact that I thought the ezcema and hypertension was dropped they treated them as increases and just denied them again saying since their intial rating of 0% neither has gotten worse.

[pacmanx1]

When I brought up the fact that I thought the eczema and hypertension was dropped they treated them as increases and just denied them again saying since their initial rating of 0% neither has gotten worse.

Did VA give you a C & P exam?

BVA may address the eczema and hypertension claim also.

Edited October 5, 2009 by pacmanx1

[dav_marine72]

Yes they gave me a C&P exam coupled with my general TDIU exam. I believe she only noted eczema on my chest. If my hair is long you can't see it on my scalp all the time. I should have shaved my head then you really see. The examiner so no occupational impairment.

When you say the BVA may address theses two claims is that by me appealing their denial for an increased rating?

[Berta]

"just denied them again saying since their intial rating of 0% neither has gotten worse." That can be appealed with medical evidence that they have gotten worse.But the evidence would still have to be comparable to a ratable level.

Some BVA decisions might help show what a ratable level would be and what evidence you need.

[pacmanx1]

unfortunately it is up to the BVA judge, once your file is reviewed the judge can make a comment on all your issues. Since you completed a form 9 an appeal form and all the issues were not addressed, they could be addressed at the hearing or the BVA judge can give you an opportunity to give more evidence. if so make sure you have it in your records that you still have the condition and that means if you have to get a hair cut to let your doctor see it and write it in your records than that is what you are going to have to do. It maybe that since your claims were remanded that you may have to get new C & P exams anyway. If you do not have a hearing and BVA decides your claim make sure your records are up to date.

Edited October 6, 2009 by pacmanx1