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.

[carlie]

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

[john999]

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.

[71M10]

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,

[Pete53]

If you have psoriatic arthrititus you should be 100%.

[justrluk]

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......

[bluenote]

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