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

[CKHodges]

I am going to add this and see if anyone has an opinion on it. I am still working on scanning my initial letters, but this should summarize my appeal and contested issue nicely.

REQUEST FOR COMPENSATION INCREASE

NAME:

ADDRESS:

PHONE:

SOCIAL:

ORIGINAL CLAIM DATE: 11/01/2011

DATE CLAIM CLOSED: 05/29/2012

ISSUE: FOLICULITIS RATING INCREASE

I am requesting that the following additional evidence be included in my VA claim for compensation. This data includes pertinent analysis of my military medical records, private physician records, VA court findings, and my prescription history. Upon your review of this information and subsequent completion of my Notice of Disagreement/Appeal, I am requesting that my folliculitis rating be increased from 10% to 60% back dated to the date of my original claim of 11/01/2001.

Justification for this rating increase can be found in CFR 4.118 (diagnostic code 7806). The

schedule of rating states “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 is 60%.” The following evidence will clearly show that I have been treated via systemic therapy with immunosuppressive drugs for many years while on active duty. Additionally, I have continued to receive immunosuppressive drugs and also corticosteroids, consistently post discharge and remain on those drugs today.

The medicine most commonly used in my treatment, as indicated in my medical records, is tetracycline. The VA considers “tetracycline is similar enough to a corticosteroid or other immunosuppressive drug to warrant a 60% rating where the Veteran is in receipt of constant or near constant therapy.” Reference Citation No 110749711 07497 Docket No: 06-25 548 Appeal from the Veterans Affairs Office. This court document is also enclosed for your review.

Enclosed are my service medical records (evidence you had during my initial claim) showing dates of diagnosis as well as prescribed systemic therapy for my skin condition. In summary, documented dates of treatment that annotate systemic therapy with an immunosuppressive drug include:

06 March 2000 - Service medical records annotate “On TCN (Tetracycline) for acne”

23 October 2000 - Service medical records annotate “Refill TCN (Tetracycline) for acne”

09 October 2001 - Service medical records annotate “Refill TCN (Tetracycline) for acne.”

09 September 2002 - Service medical records annotate “Refill TCN (Tetracycline) for acne.”

07 January 2004 - Service medical records annotate “On TCN (Tetracycline) for acne.”

01 June 2004 - Service medical records annotate “On TCN (Tetracycline) for acne.”

22 March 2006 - Service medical records annotate “Med refill Doxycycline.”

19 May 2006 - Service medical records annotate “Multiple pustules were seen on the upper back -

prescribed Tetracycline.”

15 Feb 2007 - Service medical records annotate “Folliculitis with multiple red papuls and cystic lesions to the upper back. Prescribed Tetracycline, Clindamycin, and Mupirocin.”

20 Nov 2007 - Service medical records annotate “On TCN (Tetracycline) for acne.”

23 Jan 2008 - Service medical records annotate “On TCN (Tetracycline) for acne.”

05 June 2008 - Service medical records annotate “On TCN (Tetracycline) for acne.”

13 Jan 2009 - Service medical records annotate “On TCN (Tetracycline) for acne.”

06 Oct 2009 - Service medical records annotate “On TCN (Tetracycline) for acne.”

19 Feb 2010 - Service medical records annotate “On TCN (Tetracycline) for acne.”

09 Dec 2010 - Service medical records annotate “On TCN (Tetracycline) for acne.”

01 Oct 2011 – C&P examination

01 Nov 2011 – Honorable Discharge from the US Air Force

From my service medical records/history you can clearly see a consistent use of systemic therapy with an immunosuppressive drug, spanning multiple years up to my discharge date. I have enclosed the last three years of my prescription history for your review.

Additionally, my discharge C&P physical, performed on 10/1/2011, states the following “Patient states he has the following treatment within the past 12 months: Tetracycline 2x day. The medication is a systemic Antibiotic. For the claimant’s claimed condition of folliculitis, the diagnosis is folliculitis on the neck and back.” This VA ordered examination, further confirms my use of a systemic therapy while on active duty for many years, up to my discharge date.

Upon discharge I continued with my systemic treatment with my remaining prescriptions of tetracycline, which lasted for almost 18 months. Though that may seem like an overabundance of medicine, you can see from my records that I was given yearly supplies of tetracycline quit liberally, due to the severity of my condition. Once that supply was exhausted I sought private treatment with Dr. XXXXXX at the XXXXX Dermatology Clinic for my service connected condition of folliculitis. My post discharge/private physician medical records are enclosed for your review. The dates of treatment and prescribed therapy for my skin condition are:

14 June 2013 – Dr. XXXXXX medical records annotate “Acne of the back, chest, and face. Prescription of Doryx (Doxcycline), Sumadan, and Prednisone given.”

17 July 2014 – Dr. XXXXXX medical records annotate “Acne of the back, chest, and face. Prescription of Doryx (Doxcycline), Dapsone, and Prednisone given.”

My current civilian treatment not only includes a tetracycline based antibiotic of Doryx (Doxycycline), but two additional medicines. Prednisone is a corticosteroid used to treat chronic skin conditions. Dapsone is an antibiotic used to treat skin infections. Thus my post military treatment has continued in the use of a tetracycline based drug, but also a corticosteroid (as outlined in CFR 4.118) has been added. My treatment now includes both immunosuppressive and corticosteroid therapy. This shows that my systemic treatment continued, allowing for a current and continued rating of 60% to be granted.

In closing, while the VA obtained and reviewed my medical records and also utilized the C&P examination to establish a baseline rating, the medical evidence of my constant systemic therapy was missed. Clearly my records show constant systemic therapy with an immunosuppressive drug for over 12 months (actually many years) while on active duty up to my discharge date. My C&P exam identified Folliculitis as a diagnosed condition and also verifies my continued use of tetracycline as a systemic therapy while on active duty. My post service medical care for my skin condition now includes constant therapy with both an immunosuppressive drug and a corticosteroid. Based upon the evidence from my service medical records, private medical records, and the Code of Federal Regulations, I am requesting that my service connected rating for Folliculitis be increased to 60% with an effective date of 11/01/2011.