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SPO

Possible CUE win?

Question

So after some prompting from some friends I got an appointment with the DAV to look at what I thought would just be a new claim to ask for in increase on my psoriasis claim (10%).  After the DAV reviewed my records, including my C-file it looked like the VA had ignored some evidence that would have given me 30-60% rating for psoriasis, which is based on the use of immunosuppresive medication.  We couldn't find a copy of my civilian dermatologist medical records in the file, but we did find where I provided them with the information to locate the records and a note asking them to retrieve them.  No where in my C&P exam did it state the I told them I was on that medication, but in my decision letter the cited the use of immunosuppresive medication to treat the condition (information only available through my private doctors records.)  Also I believe that the VA did not fulfill its duty to assist in accordance with federal regulation under title 38 CFR 3.159, which states they must provide notice as to the identity of the records they cannot obtain, as well as what efforts they have made to obtain them.  No letter of that type exists in my file.  The only letter is a generic letter asking if there is anymore evidence I would like to provide (no specifics included). 

Using these medications for 6 weeks or more in the last 12 months (at the time the application was filed) can lead to a 30% or 60% rating.   My decision noted other items to justify the 10% but did not mention the immunosuppresives in the paragraph that tell you why you got that rating. The DAV reps submitted a CUE for me, so if we are right I should be back dated to December, 2009. It could possibly take me from a 30% overall rating to 50-70% overall depending on which criteria they think i meet.  Any else seem like this should be one for the veteran win column?

Edited by SPO

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 "No where in my C&P exam did it state the I told them I was on that medication, but in my decision letter the cited the use of immunosuppresive medication to treat the condition (information only available through my private doctors records.)  " Hmmmmm

Can you scan and attach here the rating decision as their Reason and Basis in the older decision being Cued? (Cover C file # and name prior to scanning it.

When you stated" cited the use of" ,do you mean they accepted that you ,specifically, were taking the immunosuppresive meds?

" We couldn't find a copy of my civilian dermatologist medical records in the file, but we did find where I provided them with the information to locate the records and a note asking them to retrieve them. "

Did you sign an authorization form for those records? Was that form in the C file?

Duty to Assist is not a basis for CUE but I think you do have a strong basis here for the CUE.

It is possible they made no attempt to get the civilian records, or they did get them and ignored them,except for the 'use of" the meds part.

I have been successful under CUE using 38 CFR 4.1 et al...specifically 4.6:

It is in this post:

http://community.hadit.com/topic/60717-the-power-of-38-cfr-46/#comment-361243

 

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They made the statement was "you were treated with topical creams and humira ."   humira is an immunosuppressive drug. We couldn't find the medical records, a release or evidence of the va trying to get them.

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Also I just got a copy of what the DAV submitted. They said that it should be a minimum of 30%.  Will the va consider the 60% level still?   I was on the meds for 13 weeks at the time of my claim. 

constant or near-constant systemic therapy such as corticosteroids or other immunosuppresse drugs required during the past 12-month period60%

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That means the VA conceded that you had 'established medical evidence in their possession' at time of the decision, that confirms the use of the immunosuppressive drug. And that they did not consider that medical fact  in the decision.

I sure hope the DAV honed in on that in their CUE That falls under violation of 38 CFR 4.6.

It is 99% possible that the rater did not know what humira was.

I wish we could read their decision and see the CUE the DAV wrote.

Was the CUE claim sent to the last person who worked on the claim?

I always put  Attention to:, and then initials in the alphanumeric on the right hand top of their decisions for CUEs I filed , because the alpha is the initials of the last person who worked on your claim.

It is also quite possible that they failed to give the C & P examiner the proper information because it appears that they certainly had the private medical info but those records  have mysteriously disappeared.

I have been the victim of the Buffalo RO  MF many times-the MF 'mysterious force that removes probative evidence from  C files) and then might put it back years later.

I had that all well documented in House VAC testimony I gave years ago during Shreddergate.53 USPS tracking slips.Evidence they refused to even acknowledge. When they did I won those claims.

I bet this happens much more then we know and vets do not realize what is missing from the evidence they can prove they sent to the RO. They need to pour over the evidence list and carefully read the VA rhetoric.

VA might even list it as evidence but then fail to mention it. And it might be the best evidence they have.

Did the DAV send them a print out of this med ,as evidence for the CUE claim, and what it is for and why the word "humira" in their decision supports the claim for higher rating?

 

Would your civilian dermatologist still possibly have anything from VA requesting those records?

But then again, it looks to me that they did have them to make the statement on the humira. That is very important to this CUE because every CUE must rest on legal error in any decision in which the medical evidence has been established and is ( or was if they lost it) in their possession ,when they made the cued decision, as their 

'humira' statement proves it was.:rolleyes:

When was this decision made.....is the DAV cueing a past decision that was unappealed or going after them with a CUE within the appeal period?

(which wont stop the NOD clock but can get fast results sometimes)

Both ways have worked for me. And I do believe this is a very valid CUE.

 

Edited by Berta
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I think the claim was just submitted online. They didn't quote any regulations in the cue. But they did quote the decision letter where it mentions humira.  No print out for what humira is but they did write a brief explanation of what it is themselves. It is past the appeal period.  It's been about 8 years.  I tried to upload a picture of the cue letter but it keeps getting an error.

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