CUE for Eczema-like condition denied :-(

[JustGettingStarted]

I sent this CUE to Berta on another thread and she thought it was really good.  However, I just got a denial from the St. Pete VARO today (they are really illiterate).

At issue is the fact that any conditions similar to dermatitis or Eczema are rated under code 7806.  These conditions can be rated on amount of body they cover, or more importantly, how often you have to take "systemic medication" for them.  Systemic medication is usually defined by the VA as oral medications or injections, but not topical medications and if you take it constant or near constant, the rating is 60%.

In the denial letter, I am still service connected for a skin condition at 0% as I was in 2009, but the VARO completely ignored the fact that I have been on constant systemic medication since 1998 and should be rated at 60%. The medication was completely ignored in the decision.  I provided military medical records from 1998 where I was put on constant medication, and Bluebutton pharmacy records from a military facility that date back to 2004.  All that evidence was submitted with my CUE.  

I thought this was going to be so cut and dried, and now I know why so many people complain about the VA ignoring the evidence and why the appeal system is so backed up.  I guess I will be getting on the hamster wheel and ask for a reconsideration/DRO Review/Appeal.  

Anyway, I attached a redacted copy of the CUE that I did in the event someone can use it as an example. I hope it works better for them than it did for me.

JustGettingStarted

Motion for Cue-REDACTED.pdf

[JustGettingStarted]

Last week, I noticed my claim status changed to "Preparation for Decision".  I emailed my VSO and he called me with some bad news; according to the system he has access to, the VA was drafting a letter to deny my CUE again because they said I missed an appointment on 8 Sept.  My husband and I both know I never received a notification for this - in the past I received a FedEx package with the appointment information.  I contacted VA and yesterday I received a call from a VA customer rep.  she said the new skin exam was never scheduled and was letting me know that LHI would contact me to schedule another skin exam.  LHI called me today to check on my availability and let me know the exam would be scheduled this month.

I had a skin exam a few months ago, but that examiner left my medications off the DBQ after I had them listed twice on the questionnaire I was required to fill out, on a chronology I typed up, and on several pages of pharmacy records from Tyndall AFB.  When I confronted this examiner on a knee exam I had later, he first said it was just a simple mistake.  I brought out my paperwork from the skin exam and showed him all the places I listed it and explained his little error was the difference between 0% and 60% and that his error would delay my claim by months if not years.  He changed his story and said he didn't feel like it was necessary to list the medication because my disease isn't in Title 38.  I had to explain to him that if a disease isn't listed it is rated equivalent to another disease.  This guy should really, really, be fired.

Now I have to go to another skin exam, probably a 2-hour drive away, just to tell an examiner what medication I am on and my claim is going to take much longer.  I have been watching eBenefits and Vets.gov.  My claims went from "Preparation for Decision" back to "Gathering of Evidence" with a new estimated completion date of Aug 2018. 

I know why vets call the claims system "the hamster wheel".  It keeps going around in circles and never seems to end.

Still "JustGettingStarted" unfortunately.

[john999]

CUE claims are the hardest claims since errors must be cut in stone with zero wiggle room.  If there is the least bit of judgement required in your CUE you will probably fail.  If you can find another way to get more for the skin condition I would go that route before a CUE.  You could spend a decade waiting for a CUE to be denied.  I almost spent that long on one. 

[Berta]

We did have a similar CUE winner ---similar to your claim SPO.....I will find it

There are more threads on this winner but I dont have time to find them.

Nothing is impossible!

[JustGettingStarted]

John999,

That would be good advice if I wasn't so far into this process.  When I started doing this, on the advice of a VSO, I went for both options--there is no reason not to.  This is really a simple case that was complicated by an inept C&P examiner.

In my 2009 decision later it states "Service connection for [skin disease] has been established as directly related to military service. ... A higher evaluation of 10 percent is not warranted unless there is evidence of dermatitis or exzema involving at least 5 percent, but less than 20 percent, of the entire body...or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total druation of less than six weeks during the past 12-month period....Service treatment records show that you were found to have [skin disease] in March 1997.  Upon VA examination you reported that you continue to take [medication] on a daily basis to reduce flares of the condition, which occur once or twice yearly."

So when I retired in 2009, the VA determined I was service connected for the skin disease and that I was taking daily meds.  Based on the daily meds I was taking, and documented in my records, they should have given me 60% versus 0% - that's a clear error.  I have my pharmacy records clearly showing I have taken daily meds from 2004 to present (I don't have records prior to 2004, but since I retired in 2009 it doesn't matter).  Also, all this is documented in the 2009 C&P exam I had.  The dates are also in the recent skin exam I had, but Dr Dufus didn't put down my meds.

I have 3 CUEs now because of ratings that were left out during my 2009 decision and SMC-K that should have been provided automatically.  Now it looks like I may have a 4th CUE to file but that is a whole other story and I have to clear up the SMC-K first.

JustGettingStarted

[JustGettingStarted]

Berta,

I read that thread and it is very similar to my case.  The only difference is that my medication is not an immunosuppressive, and I think that was the cause of the error.  However, my medication is a systemic, and there are numerous BVA cases where vets are getting the higher ratings because they are on the same medication I am on.  I think that is the reason the error was made in the first place.  

I will keep plugging away.  I am preparing for my new skin exam, and you can be sure I will tell the next examiner the importance of the medication I am on.

JustGettingStarted

[JustGettingStarted]

I got the response below to an email I sent to a VA customer service rep.  I have no idea where they got the idea I was using a topical medication:

"I reviewed your current medical evidence as well as your exam from 2009.  The 2009 exam did note the use of topical cream, which would meet the constant systemic medication portion of the criteria, but the examiner specifically stated that it was not a corticosteroid or an immunosuppressive treatment.  Based on that, we did not grant the 60 percent evaluation.  I reviewed your current medical records, but I didn’t find anything that would meet one of those requirements.  I did see that you had a contract skin exam schedule; however, the exam was canceled by the contractor due to availability/scheduling issues."

My response [redacted]:

"I am requesting CUE because I have been on oral [medication} since 1998; not because of topical medication.  My 2009 exam specifically says “[Medication] 500mg daily” on page 4.  Page 22 of the 2009 exams states “4. [Skin disease] – Reports diagnosed in 1996.  Taking [Medication] daily with good response”.  This is a systemic oral medication.  What is so hard to see this in my military records, the 2009 exam, and in my 2009 decision letter that says I am on daily [medication]?  In addition, The US Court of Appeals for Veterans Claims, Warren Vs McDonald, No 13-3161 clarifies that any oral systemic drug, not just corticosteroid or an immunosuppressives, qualifies for higher ratings when used to treat a skin disease rated under diagnostic code 7806."

I just can't believe how wrong the VA keeps getting this.  I can't wait to see what they have to say concerning the oral versus topical medications.  I have never used the topical version of this medication.  

Still,

JustGettingStarted