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Psoriasis 30% Rating - Nod Decision Received - Advice Wanted


HawaiiJ

Question

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.

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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

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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

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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!

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  • HadIt.com Elder

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.

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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?

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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.

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

Have you checked on getting a video hearing with the BVA ?

To revoke your POA of record just send the VBA a letter requesting them to do so along

with a replacement 21-22 or 21-22a, completed and signed, showing who you desire as your POA.

If it is to be yourself just state that you wish to represent yourself pre se.

Ask that they mail an acknowledgement of such instruction and any action taken on their part

to accomplish your request.

JMHO

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  • HadIt.com Elder

I got a traveling BVA hearing and it only took about a year to get it. I had a lawyer who did a brief. I found that the hearings are just intake sessions. They did not make a decision on the spot but took an extra six months to make the decision (a bad one). I think I might try a DRO Hearing to get another bite at the apple before I got in line at the BVA.

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Yes Appeal,

I don't think you are misunderstanding the rating schedule. You are and have been on an immunosuppresive. The disconnect is that the rater and VA clinician probably don't understand you are on an immunosuppresive. We often make the mistake that we assume the VA understands the information that is contained in our medical files. From the rater viewpoint, if the doctor didn't stipulate you were on immunosuppresive therapy, you wern't. If your C&P was done by a specialist they probably didn't think it important to spell out you were on immunosuppresive therapy because from thier point a view the medication is that indication. It is almost a classic catch 22.

Its kinda like the VA telling me increased urinary freaquency is not related to a side effect of the diuretic I am perscribed for my SC hypertension. Which is factually correct since increased urine clearance is the primary goal of the Diuretic....

I am confident you will prevail on appeal to the BVA. Just curious did they do a C&P during the DRO review? Did you request a DRO hearing? Or was this an appeal straight to the BVA and this is just the SOC and no Denovo review was requested?

Best regards,

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Pete,

I have PsA and with the use of two immunosuppressive and steroids I can move pretty well and still work. I truly feel for those that can't use the right meds to retain motion. Although the schedule says I should be at 60%, if they did a C&P and tested ROM, I would appear non-symptomatic and have no proof of the condition other than clinical notes. It seems a catch 22: the only way to prove the impact of the condition would be to stop taking the meds, but when you stop taking them you're no longer on a frequent use of immunosuppressive, but I can still work because I use them, and the illogical loop continues......

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ALCON:

Not to overlawyer things but the two unpublished CAVC opinions I mentioned before remanded because the BVA did not address the use of topical steroids in relation to Diagnostic Code 7806 (dermatitis or eczema). I assume the CAVC notice the same thing as myself which is other diagnostic codes in 38 CFR provide clear definitions of systemic (for example, 6602 (Asthma) states "daily use of systemic (oral or parenteral) high dose coricosteroids"). I won't bore you with canons of statutory construction but in essense you have a good basis to argue that the inclusion of certain statutory language in one section of the CFR and exclusion in another means that the "systemic treatment" in 7806 includes both oral and topical applications.

Sorry about the legalize. . .soldiering skills were average, lawyer skills a plus.

Seth Director

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  • HadIt.com Elder

Justuluk

What are the steroids doing to your body? Do they make you gain weight? I know you want to keep working and I don't blame you. Immune suppressive drugs scare me, but I guess if you are very careful it is OK since the alternative is not good. Does untreated PsA totally cripple a person? Can't they just do a blood test to see if you have it at the VA? It seems you face a risk either way.

John

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Justuluk

What are the steroids doing to your body? Do they make you gain weight? I know you want to keep working and I don't blame you. Immune suppressive drugs scare me, but I guess if you are very careful it is OK since the alternative is not good. Does untreated PsA totally cripple a person? Can't they just do a blood test to see if you have it at the VA? It seems you face a risk either way.

John

John -

Thanks for the questions. PsA doesn't show up on a blood test like RA. It shows up on x-rays and other obvious physical manifestations (swelling, joint problems, etc.). I use prednisone, leuflonomide daily and humira every other week (40mg injections). The rough part is when I get sick. This happens quite a bit and when it does, I can't take the immunosuppressives as they both complicate the respiratory issues as well as increase your risk of serious illness. I've been off my normal schedule for over two weeks and am starting to swell all over. Pain increases, neck hurts worse, and so on...

Usually I end up on antibiotics and more steroids. My issue is that I'm running out of sick leave and am running out of vacation as well.

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Yes Appeal,

I don't think you are misunderstanding the rating schedule. You are and have been on an immunosuppresive. The disconnect is that the rater and VA clinician probably don't understand you are on an immunosuppresive. We often make the mistake that we assume the VA understands the information that is contained in our medical files. From the rater viewpoint, if the doctor didn't stipulate you were on immunosuppresive therapy, you wern't. If your C&P was done by a specialist they probably didn't think it important to spell out you were on immunosuppresive therapy because from thier point a view the medication is that indication. It is almost a classic catch 22.

Its kinda like the VA telling me increased urinary freaquency is not related to a side effect of the diuretic I am perscribed for my SC hypertension. Which is factually correct since increased urine clearance is the primary goal of the Diuretic....

I am confident you will prevail on appeal to the BVA. Just curious did they do a C&P during the DRO review? Did you request a DRO hearing? Or was this an appeal straight to the BVA and this is just the SOC and no Denovo review was requested?

Best regards,

71M10,

On both the initial and NOD decisions Embrel use was noted and it was stated in the decision I received. I whole heartedly believe both the Embrel and especially Stelara are relatively new in a sense that the decision makers have not seen thousands of cases where these 2 drugs are being used. I don't believe they know the drugs Embrel or Stelara are automatically linked to immunosupressive therapy unless the C&P exam report spells it out.

There was no DRO, just straight to the BVA hearing.

I really find it comical the VA is actually paying for my injections of Stelara but seem to miss this when it comes time to decide if I'm taking immunosuppressive drugs therapy. It is expensive, about $ 8600 every 12 weeks. I'm getting reimbursed via the VA's FMP program with no questions so far. I front the cost, then get reimbursed prior to taking the next injection.

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HawaiiJ -

What was your resolution (if any yet) on this issue? Have you had any updates?

Thanks!

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HawaiiJ -

What was your resolution (if any yet) on this issue? Have you had any updates?

Thanks!

I got curious last week and called them to check on a couple of things. In E-benefits they still have "AMVETS" as my POA even though the POA had been revoked in Dec 12, they said I had no POA and it would just show the last POA info I had until I eleceted to have another POA. I asked about the leadtime on cases similar to mine (waiting for BVA docket date to be assigned. The reply was 710 days precisely which I find comical as to how they can predict it down to a specific number of days. I asked for specification of calendar or work days and I was told calendar days.

I just tried to get a copy of my overall timeline and had another comment but the EBenefits website is not working well and I can't access my appeal information.

I'll try again in a bit and post it and comment further on what I think about my next move (not that I really have one) other than sit and wait for the 710 days to roll around.

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The Ebenefits site is working again and here's my timeline below. Last week when I contacted the VA, I was told the normal number of days for my type of appeal is currently at 710 calendar days to get onto the BVA docket. I have no idea which date the VA used to start counting, any one know the correct answer by chance? I'm assuming the last date plus 710 days maybe?

The last time I was counting days with the VA they busted the "Calendar" day count and conveniently turned the story around and said it was work days not calender days. Who knows when my appeal will come up for BVA assignment.

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I just made another call to the VA for clarification and here's the answer. My 710 day waiting period is based on the day they received the Form 9, 11/23/2012. Then my file will be forwarded to the BVA for the docket and I assume await until it is assigned a hearing date. The lady I spoke with said once it goes to the BVA it is in "LIMBO" (she actually used the word limbo) and ther's no estimated number of days for it to clear the BVA hearing process.

I have to say, I expect to have this last for many years and the only saving grace is everything related to this is retroactive in terms of potential money.

Another depressing fact is my case sits at the RO and they already had the file and denied the appeal prior. So now they get to just hold onto it for nothing since I asked for a BVA in DC and not at the RO. Anyone know why?

Over the next few months, I'll put together a powerpoint type briefing of what I would present to the BVA and let the congregation here make a call as to whether I'm wasting my time or not. It might take me a couple of months because I'm in school and have many projects along the way.

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Two reasons it takes so long: (In my Opinion)

Two frustrating things happen before a file is transferred to the BVA.

I think both of these actions should be eliminated by the VA but then again they dont care what I think.

Someone at VARO prepares a I-8 for every I-9 filed.

(I-8 Certification of Appeal)

The I-8,in my opinion, is a self serving list of Yes or No check off questions as to whether the VA did this or that in processing the claim.

This is all found under M21-1MR ,Part One, Chapter Five, Section F Topic 31.

If they really did all the things they check Yes to, maybe some of these claims shouldn't even be on appeal.

Another point of frustration is that this same part of M21-1MR explains the 646.

The 646, if you have someone as your POA, sits on a reps desk in a pile, a rep who usually is not familiar with your claim, whereby the POA has opportunity for input:

VA Form 646, Statement of Accredited Representative in Appealed Cases, gives an appellant’s representative an opportunity to review the appeal and submit a statement regarding the appeal

  • prior to certification, and/or

  • after

  • receiving new evidence requiring additional action, or

  • completing an action on a BVA-remanded appeal.”

Personally I think this 646 is a big waste of time in most cases.

It does give the POA the right to point our any deficiencies or errors in the decision being appealed and they surely will say they support the claimant's contentions, but the 646s are hardly ever mentioned by the BVA in their decisions, unless the POA has made a significant probative statement on the 646.

(Which does not happen too often)

More on the 646....

VA Form 646 can be executed in remanded cases when further consideration is required by BVA.

Note: VA Form 646 is not required when

  • new evidence is not submitted and additional actions were not required, or

  • an appeal is

  • remanded by BVA solely for assembly of records, such as X-ray films or outpatient treatment folders, and

  • forwarded without further consideration by the agency of original jurisdiction. “

If a VCAA letter sent to the claimant is faulty, to the point it is detrimental to the claimant (like the VCAA letter I got years ago) the 646 should be the opportunity for a POA rep to question it , prior to initial BVA transfer ,if they have not done that already.

That sure would have cut down on the backlog years ago when the BVA had to remand countless claims due to deficient VCAA letters.

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