Psoriasis 30% Rating - Nod Decision Received - Advice Wanted

[HawaiiJ]

Hello, I’m looking for some guidance and understanding on one of the Service Connected issues I have. I’ll apologize in advance if I get long winded but will do my best provide the timeline and decisions along the way. Here’s a simple timeline.

Jan 2009 - Retired USAF

Jun 2009 - VA Received initial VA Claim for Disability

Dec 2009 - VA Examination at the VAMC Boston

May 2010 - Notified of Decision

Apr 2011 - NOD Received at VA

Oct 2012 - NOD Decision sent to Claimant

I agree with all my SC decisions made by the VA with one exception: PSORIASIS, initially determined to be 30% disabling. My opinion based on evidence provided, it should have been 60%.

The May 2010 decision was for 30% disability for Psoriasis was based on 20% of the body and the it goes on to include all the other technical terms related to a Psoriasis decision.

The decision noted that my Psoriasis is treated with 50 milligrams of Embrel twice per week which has been effective.

The Embrel injections started in Nov 2007. This was after countless treatments with all the cream, suave & solution therapies available. It also included a two regimens of Cyclosporine which worked wonders until stopped and the Psoriasis conditions came back with a vengeance. FYI - My issue with Psoriasis date back to 1994.

The following paragraph was included in the decision as well in the initial decison:

“an evaluation of 30% is assigned from January 1, 2009. An evaluation of 30% is granted for evidence showing 20 to 40 % for the entire body or 20 to 40% of exposed areas affected, or; systemic therapy such as corticosteriods or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A higher evaluation of 60% is not warranted unless evidence shows more than 40% of the entire body or more than 40% of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteriods or other immunosuppressive drugs required during the past 12-month period.”

That was the 30% decision and how to increase to 60% if warranted. My understanding of the decision was something had been missed on the immunosuppressive drug therapy-EMBREL. I had began taking Embrel in Nov 2007 which was nearly 18 months of use at the time I filed the initial VA Claim. Embrel is clearly described as an immunosuppressive drug on the drug manufacturers website and others related to Psoriasis info. My twice weekly injections were constant meaning this was the dosage and use prescribed by my doctor.

I felt this was a clear miss on the VA’s part. Embrel was in use for longer that the “constant or near-constant systemic therapy such as corticosteriods or other immunosuppressive drugs required during the past 12-month period” threshold described in the VA decision.

So, I decided to file a NOD, requesting the higher 60% decision based on the use of immunosuppressive drug therapy. I’m thinking this is easy, I state the obvious, provide clear dates with evidence and should be a simple correction to the 60% rating.

Also, It should be noted between the initial decision and filing the NOD the Embrel stopped working and I began taking STELARA which also decreases and impacts your immunosuppressive system in a negative way too. All this information was provided in the NOD filing and it showed a continuous use of EMBREL and STELARA from Nov 2007 until the date of the filing. Well over the 12-month use threshold required for 60% rating. To date I’m still using STELARA and the VA is currently paying 100% the cost of this therapy via their Foreign Medical Program (VA-FMP).

On 22 Oct, 2012 the NOD decision was received the VA decision was to maintain the 30% disability rating based on the exact same reasoning listed in the original decision and also the NOD decision included the same comments about what warranted a higher 60% rating which stated: “constant or near-constant systemic therapy such as corticosteriods or other immunosuppressive drugs required during the past 12-month period”. No progress was by filing the NOD. The VA came to the same decison without clearly stating Embrel use was involved in the decision.

Ok, thats the story here’s a few questions I need help on understanding if anyone has a recommendation. I have 60 days to make a decision to appeal, disagree or request a hearing in person.

1. What qualifies as: constant or near-constant systemic therapy such as corticosteriods or other immunosuppressive drugs required during the past 12-month period? Does constant use as prescribed by doctor from 2007-present meet definition of constant or near-constant?

2. EMBREL and STELARA both suppress the immune system this is based on the drug information listed on the manufacturer’s sites. Why does this not meet the VA threshold for immunosuppressive therapy?

3. What am I missing?

4. Am I foolish for thinking I should be at 60%?

5. Would a BVA hearing be a mistake or am I chasing something I can’t catch?

Sorry for the long version, hopefully I have provided enough info without clouding the issue too much. Looking forward to the replies. Thanks.

[Pete53]

VA is infamous for lowballing claims. Welcome to Hadit

[carlie]

Looks like it's time to take this to the BVA by timely submitting a completed Form 9.

Whether you request a hearing or not is up to you, requesting the hearing

will drag it all out longer but you will then have the opportunity to present

your evidence and contentions in person.

It looks clear to me that the evaluation should have been 60 percent,

as your evidence meets the criteria of the "or" portion for the 60 percent evaluation.

JMHO

[bluenote]

Hawi:

Addressing a related issue about "systemic treatment" for psoriasis in a case (unlike over DCs (respiratory) the DC for psoriasis does not state whether the treatment is oral, etc...). May want to look at the following cases that address systemic treatment: Conner v. Shinseki, 2011 WL 1295611, at 3 (Vet. App. 2011) (unpublished) (remanding after “The Board did not discuss Aldara [a topical steroid] or other drugs the appellant has been prescribed, and their possible application to the language in 38 C.F.R. § 4.118, DC 7806 concerning the use of corticosteroids and immunosupressive drugs.”); Perkins v. Peake, 2008 WL 2446312 at 2 (Vet. App. 2008) (unpublished) (Remanding after the examiner and Board failed to assess whether the use of “Protopic cream contained an immunosuppressing ingredient was a ‘systemic treatment’”.).

FYI, we got the 60% before the RO (now fighting the ED). Can provide a redacted copy of the RO decision if that will be of any assistance.

Seth Director

[justrluk]

Hawi:

Addressing a related issue about "systemic treatment" for psoriasis in a case (unlike over DCs (respiratory) the DC for psoriasis does not state whether the treatment is oral, etc...). May want to look at the following cases that address systemic treatment: Conner v. Shinseki, 2011 WL 1295611, at 3 (Vet. App. 2011) (unpublished) (remanding after “The Board did not discuss Aldara [a topical steroid] or other drugs the appellant has been prescribed, and their possible application to the language in 38 C.F.R. § 4.118, DC 7806 concerning the use of corticosteroids and immunosupressive drugs.”); Perkins v. Peake, 2008 WL 2446312 at 2 (Vet. App. 2008) (unpublished) (Remanding after the examiner and Board failed to assess whether the use of “Protopic cream contained an immunosuppressing ingredient was a ‘systemic treatment’”.).

FYI, we got the 60% before the RO (now fighting the ED). Can provide a redacted copy of the RO decision if that will be of any assistance.

Seth Director

Seth,

I'd like to see it if you don't mind. I'm on systemic therapy using Humira, Leflunomide and oral steroids for a combination of Psoriatic Arthritis and Psoriasis and am only rated 30% as well.

Thanks!

[john999]

I can sure see such a skin condition leading to TDIU. If you are using Embrel you have a serios and possibly life threatening condition. Just using Embrel can be life threatening. I know you have read possible side effects. I am to the point where if VA granted me 100% I would still appeal it. They are such liars you don't know what they are hiding including EED or some other benefit.

[HawaiiJ]

Folks, Thanks for the replies. I decided to go the BVA route and requested an hearing in Wash DC vs Boston MA where the original claim and appeals were filed. The reason for choosing DC is it is cheaper to fly to DC than Boston from here in Thailand where I live. I'm expecting a multi year wait for this BVA to happen and that's ok since I have time to wait. I tried to find some information on the case decisions referenced by Bluenote but failed. Hopefully I'm heading in the right direction.

Other than waiting for the BVA, I just need to close one small loophole. I have been at odds with the AMVETS team in Boston since the start of my claim. I have tried to remove them on 2 occasions and can't seem to get the job done. The AMVETS POC in Boston will not respond to my email asking how to revoke the POA they have. It should be noted, AMVETS team has not filed or acted on mybehalf and I have filed the initial claim and the appeal myself. The ball was dropped early on in the claim process and I just decided to go solo of the whole effort.

How would one go about revoking the POA and getting the VA to acknowledge this action?