Nod Or Cue

[CKHodges]

Good morning all,

This is my first post so my concept of VA policies may be very much askew from reality. I currently have an appeal (submitted Jan 2014) in from my discharge claim of Oct 2011 for my 10% service connected skin condition. I believe I have discovered a clear and unmistakable error (CUE) in the original rating decision. In short summary my skin condition has required me to take several oral medicines to include those outlined in CFR 4.118 (systemic therapy such as corticosteroids or immunosuppressive drugs for the past 12 month period). I have taken these medicines for at least ten years while on active duty and have continued with those medicines since my discharge. My military and now private medical records can clearly show this. My original rating of 10% should be at 60% based upon the rating schedule and my continued use of these drugs within the past 12 month period (actually many years). With that said should I wait for the lengthy appeal process...or submit a CUE? Thanks in advance for your response.

Chris

[Gastone]

CK: What they said! When you got your denial, what did the "Evidence used to make Rater's decision" have to say? A rating of (1) condition at 10% that should have been 60% according to your readings and understandings of 38 CFR 4, seems a stretch. Anything with the VA is possible. It has been my limited VA Comp experience with my own claims and about 8 other Vets I deal with, that most of our original claims denials are due to our lack of knowledge of claims and evidence. In most cases, the original Comp claim is the first contact the Vet has had with the VA since discharge. If he hasn't been schooled or gets a less than knowledgeable VSO Rep, chances are more likely than not, a denial is in his future.

Post as much info as your comfortable with, more is definitely better than less. I have found some very knowledgeable people on HADIT. Remember, Trust but Verify.

Semper Fi

Gastone

[CKHodges]

Thank you all for your timely and educated responses. I am very much a novice and learning by error when it comes to dealing with the VA processes. If I had only known then what I know now, seems to be my mantra of choice anymore. I am not sure how to include my actual documents, but I will do my best to part out the relative parts in some type of chronological order.

Oct 2011 – Initial C&P evaluation as recorded in my VA records: “The claimant reports with being diagnosed with acne on back & shoulders for 20 years. The symptoms occur intermittently as often as 2x monthly, with flare ups of 10 days. The claimant states he has had the following treatment within the past 12 months: Tetracycline 2x day 20 years. The medication is a systemic Antibiotic. For the claimants claimed condition of ACNE, the diagnosis is folliculitis on the back covering 5%.”

Dec 2011- Initial VA claim submitted to the VA listing multiple conditions including Acne

May 2012 – Initial Claim results: “Service Connection for folliculitis. We have assigned a 10 percent evaluation for dermatitis based on – At least 5% but less than 20% of the entire body area affected. A higher evaluation of 30% is not warranted unless there is: 20 to 40% of the body area affected or SYSTEMIC THERAPY such as corticosteroids required for a total duration of six weeks or more, but not constantly, during the past 12 month period.” Evidence used including my service records, pre-discharge compensation claim VA Form 21-526, VA Form 21-0820, VA general medical examination (my C&P), and my DD214.

It took a while for me to figure out what to do at this point. I used two different VSO’s and both were not very supportive of my efforts. I finally managed to submit a NOD just before my one year cut off date on Apr 2013.

Sep 2013 – Statement of the Case received by myself. CFR 4.118 (7806) (effective 08-30-02) Schedule of ratings-skin was applied to my case. The following are the excerpts from this:

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.

My findings from the NOD were “Rating decision dated May 9, 2012 assigned a 10% evaluation for your folliculitis. You were notified of that decision by VA letter dated May 31, 2012. Your NOD appealing the decision was received April 11, 2013. You requested De Novo Review by a DRO. At your VA examination on October 1, 2011, 5% of your total body surface was affected with 0 percent of the exposed areas. In the Ratings Schedule for Disabilities a higher evaluation of 30 percent is not warranted unless there is 20% to 40% of the entire body or 20 to 40% of the exposed body 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. Upon De Novo Review of the evidence, an evaluation in excess of 10% for your folliculitis is not warranted as the criteria listed above for a higher evaluation have not been met. The objective medical evidence of record does not currently show at least 20% of your exposed or total body surface area affected, or systemic therapy required."

This is the point where I realized there was an issue with my claim and now my NOD. The VA failed to include my systemic therapy…aka daily oral medication that I have taken for many years to deal with my acne/folliculitis. My active duty medical records clearly show my history of systemic therapy. And I have continued with a civilian medical provider who now has me on two oral medicines (both considered systemic therapy) for my skin condition. I’d like to caveat that the reason my body surface area is only at 5% is because I take my meds…if not I’d be a rather mess of sores/ulcers/acne.

I initially thought that Tetracycline (my prescribed medicine on active duty might not be considered Systemic Therapy) by the VA.  I discovered case law that specifies Tetracycline is considered Systemic Therapy and should be allowed as evidence in the rating schedule.  This court case summarizes Tetracycline as a Systemic Medicine.  Citation Nr: 1107497 
Decision Date: 02/24/11    Archive Date: 03/09/11  DOCKET NO.  06-25 548  On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida  

July 2014 – I faxed and mailed hard copy what I thought would be the pertinent information for this case.  This includes the above mentioned court case ruling, my military 
prescription history, my civilian medical records, and my thoughts on the ruling.  In a nutshell I was on Tetracycline (well documented) for many years to manage my 
service connected folliculitis/acne.And my medical treatment since discharge has continued with systemic therapy…and is now more aggressive of treatment.  I believe my medical history clearly demonstrated the required evidence for a 60% rating as outlined in CFR 4.118.

And that is where things are left off at.  Ebenefits and a few phone calls to the VA have my case in Stage 1 as “Appeal Pending:  You have initiated an appeal, but at this point your 
case is still with the local VA office that made the decision on your case. If you have questions about your appeal, please contact that office or your representative, if you have one.”

So my thoughts are do I wait for the appeal process to run it’s course…or do I have the required justification for a CUE? And if I choose the CUE process will that help or hinder me?

Again I appreciate everyone's input on this! I’ve lurked in this forum for some time and have read with much interest the quality of support that comes from everyone. So I am very interested to hear your thoughts on this.

Thanks!

Chris

Edited October 15, 2014 by CKHodges

[CKHodges]

This is the timeline as shown in Ebenefits:

05/31/2012 Local VA Office Decision RO

04/11/2013 Notice of Disagreement (NOD) RO

05/03/2013 Appeal Pending RO

09/10/2013 Statement of the Case (SOC) RO

11/08/2013 Substantive Appeal (Form 9) RO

12/02/2013 Decision & Claims File Dispatch BVA

01/07/2014 Appeal Pending RO

Edited October 15, 2014 by CKHodges

[CKHodges]

And for anyone who reads my lengthy post...I tried several times to edit the font and make it more readable, obviously without success. Sorry that it looks the way it does.

[Berta]

"or systemic therapy required' Yes, you seem to definitely fall into the "or" part.

"And I have continued with a civilian medical provider who now has me on two oral medicines (both considered systemic therapy) for my skin condition. I’d like to caveat that the reason my body surface area is only at 5% is because I take my meds."

Was the VA aware of the private records and did they consider them as Evidence and within the SOC?

The caveat is a very good point to make on appeal, along with what the private records reveal.

"So my thoughts are do I wait for the appeal process to run it’s course…or do I have the required justification for a CUE? And if I choose the CUE process will that help or hinder me?"

If you ask them to CUE thermselves during the appeal process, as I m,entioned yesterday to another poster, it took me 3 weeks in one situation to get a denial dcompletely reversed but they are sitting on my current request that they CUE themselves on part of my Nehmer award.I had to file a NOD.

It is impossible to say, even with the most probative claims filed, how long it will take VA to do the right thing.

Of course you could get transferred to the BVA at any time...and the BVA can read.

That fact alone is why I dont care if VA denies my pending claim because as a hardcore claimant, after years of dealing with them,denied only to succeed anyhow, I shaped this specific claim for the BVA.

I asked this next question here before a few times but no one answered.

VA is supposed to send (unless they changed this...... please advise me someone, ) 21-22 forms , that are Authorization forms for the veterabn to sign, in order for VA to obtain their private medical records and.or their SSA records or anything else pertinent to their claims medically that fell outside the VA system.

This fact alone gave me a big piece of documented contention when the VA had 21-22s in my husband's C file for his SSA records.
After VA kept saying they could not obtain the records because SSA refused to release them (and the liars wrote this same statement to my 2 Senators and my Congressman, it took a long distance lenghty phone call from me to the SSA main department in DC at the time, to find out VA had never ever requested them ,even though they had the 21-22 signed by my husband.

Of course .SSA moved on this fast and finally VA acknowledged receiving them but by then my husband was dead.

They had to pay me as an accrued benefit the 100% PTSD SC award retro but my husband SHOULD have received this award himself before he died.

You need to check you c file and see if the VA tried to obtain those records.

If they knew of them and failed to get them that is a CUE under violation of 38 CFR 4.6.

Was this the same post I answered yesterday...............or just a coincidence...I am having internet problems due to the weather...sorry if I am repeating myself.

Would your private doctor be willing to prepare an IMO for you if needed to square away this claim?

Some IMos are very costly and I dont think you would need one, IF the VA considers the private treatment records.

I had the same font problem here too months ago .. Frustrating. It only happened when I pasted BVA stuff. Since then BVA changed their site a oittle and kno more problems for me here.

I usually type my replies in Wordpad and then copy and paste them here.I have to click on the last little blue box over the reply,with the "W" on it and paste inside the blank box that appears .

t would be great if you could scan and attach their Reasons and Bases and the Evidence list.

Cover C file #, name, address first.

VA claims are a War of the Words and it helps us tremendously to read their actual wording of denials.

[CKHodges]

Thanks so much for your response berta. I am very sorry to hear of the lose of your husband. It is a true tragedy that he passed before he could receive the benefits that he deserved. So thank you for continuing his fight and for helping all of us with our own VA battles.

To answer your question "Was the VA aware of the private records and did they consider them as Evidence and within the SOC?"

I don't believe that the VA had this as evidence. However, my active duty/service records show continuous use of prescription medicine as systemic therapy for several years. I believe that in itself meets the requirement as outlined in the CFR. I did send my private medical records as additional evidence a few months ago. I also sent the form authorizing them to contact my private physician along with my medical records and prescription history. But that doesn't preclude the fact that my service records clearly show a continued use of systemic therapy...which should have been recognized during my initial claim.

I can try and scan those documents this evening for you to take a look at.

How do I go about looking at my c-file?

And this was the question that you answered yesterday. It just took me a while to get on a computer and respond back to you.

I am leaning towards a CUE as it would address a single issue in my claim, vice my entire NOD. However, I am worried that this would put my case back at the bottom of the pile. My claim date is 2011...

Thank you again so much!

Chris

Edited October 15, 2014 by CKHodges