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Possible CUE win?

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SPO

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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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Bumping this up

I hope some one else here can answer that.

I have limited experience with ebenefits.

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Berta,  I found out that they will decide my CUE and increase claim together.  Should I add anything else to the file besides what you have seen already (CUE statement from DAV, and the medical records themselves).  They have been moving fast on the increase claim and my C&P exam is tomorrow.

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Good, if this is for the psoriasis claim maybe the C & P examiner  will get the proper diagnosis down on paper and then VA could get the diagnostic code right.

If the C & P is getting done at a VAMC, you can request a copy of it or read it in ebenefits as soon as it is done.

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Should I throw in an additional statment since the DAV didn't point out a particular regulation that the VA broke. something along these lines and the fda definition of humira

statement va.pdf

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I did end up submitting that statement.  Is there anything I can do to ensure that my prescription records for the Humira are properly interpreted.  By that I mean the record shows I was prescribed 3 months worth in 9/15/08 and 1 month worth 01/15/2009.  My claim date was 12/16/15.  So by my count december 16 to january 15 is 4 weeks, and the prescription from 1/15/2009 should add another 4-5 weeks (since it was a 1 month refill) for a total of 8-9 weeks in the last 12 months on the medication.  My worry is that they will read the prescription dates and go off that (giving me only 4 weeks), and not consider that if it was a month prescription filled in january which would mean i was medicated through february.  Also when a claim is filed are things like this counted from the day it was filed or the calendar month?  Hope this acutally makes sense.

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My claim just went to preparation for decision this morning.  Hoping that it moving so fast means that the couldn't  dispute the CUE.  Its was only submitted on 10/21.  Anyone have any thoughts on the matter. Possibly one more input from Berta.

Edited by SPO
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