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

[63Charlie]

Thank you so much for contributing the case law of Warren v. McDonald.

I am in a similar fight with the VA over my chronic skin condition and have been put on a continuing antibiotic regimen. 

I thought the regs only applied to an oral steroid regimen.

[JustGettingStarted]

13 hours ago, 63Charlie said:

Thank you so much for contributing the case law of Warren v. McDonald.

I am in a similar fight with the VA over my chronic skin condition and have been put on a continuing antibiotic regimen. 

I thought the regs only applied to an oral steroid regimen.

63Charlie,

You made my day and you are certainly welcome.  I hope this case can help a lot of vets because rating decisions have been all over the place on this subject.  You can find the full text if you search "Warren, systemic" here:  http://search.uscourts.cavc.gov/  If you've read through my post, you probably see that I finally won my skin claim for constant use of a systemic drug (60% under code 7806).  I am not taking a corticosteroid or immunosuppresant drug.  The key was asking my dermatologist to sign a DBQ that said I was on "constant systemic medication XXXX since 1998".  During a routine visit, I handed the DBQ and the supporting evidence to his nurse with a short cover letter.  Two days later, it was signed and I won my claim, just not the back pay yet.  A Nexus letter probably would have done as well.

I should have my denial letter on Monday and will try to reopen my claim right away.  I do not want to do a NOD because a DRO hearing in Florida takes over 800 days now.  This recent denial took less than two weeks.  Once I show St Pete they did not follow the current law in 2009, I hopefully will get a favorable decision just as quick (a girl can dream, can't she?). 

What really steams me about waiting 3 years for a DRO hearing is the VA doesn't pay interest on all the back pay they are trying to get out of paying.

JustGettingStarted

[JustGettingStarted]

I still haven't received my denial letter in the mail, so my wonderful VSO downloaded a copy and faxed it to me.  Here is the bogus reason they denied my earlier effective date:

"At the time of the August 2009 rating, MEDICATION, was not considered systemic therapy as it is an antiREDACTED drug but not an immunosuppressive drug, therefore a higher evaluation was not warranted.....Rating decision dated January 5, 2018 granted a increase evaluation to 60 percent disabling effective the date we received your claim for increase based on policy changes that took effect in 2016 that states the term "systemic therapy such as corticosteroids and other immunosuppressive drugs" that is contained in certain diagnostic codes under 38 CFR 4.118 refers to any oral or parenteral meidication(s) prescribed by a medical professional to treat the underlying skin disorder.  Therefore, no clear and unmistakable error is shown."

This retired chief knows this is wrong on so many levels.  Since when is POLICY the LAW?  The policy they quoted is from M21-1 Adjudication Procedures Manual.  They don't even have the date correct because DC 7806 was changed on 15 Oct 2015, not in 2016.  But I know that a manual is a set of instructions on how to implement law and not the law unto itself.  

I can also quote MR21-1.  Under MR21-1 III.iv.2.B.4.a. Definition of CUE it states, “that a clear and unmistakable error (CUE) exists if all three of the following requirements are met… the statutory or regulatory provisions extant at the time were incorrectly applied, the error must be the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and the determination must be based on the record and the law that existed at the time of the prior adjudication in question.” 

Code 7806 in CFR 38 has not changed between 2002 and the present.  The wording is exactly the same and that is the law.  Also, I have a copy of the 2005 BVA decision where the judges reversed St Pete's incorrect interpretation of the law and instructed them on the correct interpretation.  I quoted that one earlier.  Finally, there was the 2016 US Court of Veteran Claims case on an anti-fungal medication that said under the 2002 revision to Title 38, any systemic drug, not just the two mentioned under DC 7806, are considered as systemic under the law.  This was on a 2004 claim and did not change the law, they only clarified what the law is.  That is in my previous post.  I am going to slam St Pete with VA law.

I will be fighting this again.  I just hope they will allow me to reopen my CUE claim again versus having to file a NOD and wait 800+ days to see a DRO.  At this point, I am not accumulating more back pay (I am now 100% P&T), so the VA is just sitting on my money interest free.  I know I have seen that you only have one shot at CUE, so I hope St Pete doesn't use that against me to force me into filing NOD.

JustGettingStarted

 

[Berta]

 "I know I have seen that you only have one shot at CUE, so I hope St Pete doesn't use that against me to force me into filing NOD."

Nope you can file a CUE on any decision, even if it is a decisins that resulted from a CUE ( such as my 7 year plus SMC CUE claim.

I won the claim but the VA decision was still wrong and I CUed it.

The VA still denied this part of the claim-

They ( the direcvtor in 2 phone calls to me) said my husband's 100% Total 1151 Stroke was not permanent when he died.I asked her specifically how they suddenly cured his stroke before he died.

The stroke was listed as a contributing factor on the Death certificate to his death. 

I also reminded her that the record reveals my husband's SC PTSD was rating at 100% Sc P & T when he died- because permanancy means the disability has lasted the veteran's lifetime.

I had considerable evidence that my husband was 100% P & T for the stroke from SSDI, VA itself , NYSDHE, and the Original AO settlement fund.

They refused to read it. I am shaping a different way to handle this whole thing.---I digress!!!!!!

Also my IHD CUE claim of 2004 - I had to file a Go CUE Yourself claim Immediately the day after I got the denial on the  claim.I dont recall if this was a denial of the 2004 CUE (still pending at my varo for years) or a denial of the 2010 AO IHD claim but in any event they sure fixed it fast and awarded,in their decision the 2003 SMC CUE as well.

More than ever veterans are fighting CUE claims at the BVA level.

And often the BVA will make this statement:

"ORDER An effective date earlier than October 25, 1991, for the grant of service connection for PTSD is denied. The motion for revision based on CUE in the assignment of an effective date of October 25, 1991, for the grant of service connection for PTSD is dismissed without prejudice to refiling."

https://www.va.gov/vetapp17/files2/1708211.txt

This means the veteran's CUE was legally deficient in some way, but they can refile it when it adheres to the exact criteria of a proper CUE filing.

I read BVA CUE claims as often as I can and I post links to some of the winners at the BVA.

The biggest problem I see with veterans or their survivors filing CUE claims ,is that they do not read over carefully exactly what a CUE must contain.

I saw one at the BVA denied right off the bat because the veteran did not carefully identify the actual decision that they filed the CUE on.

And one other I problem I see is that some veterans might have convoluted the issues themselves.

 

CUEs only depend on established facts and established medical evidence, and the regulations at time of the alleged CUE, and the actual rating decision that holds the CUE.

Maybe you should file an IRIS complaint. 

 

 

 

 

[Berta]

PS : SPO's CUE was similar to yours and I knew he had a winner:

https://community.hadit.com/topic/68491-spo-won-his-cue-claim/

There is more discussion to this CUE beauty at hadit under SPO CUE search.

It is an excellent example of what CUE is and how to get it fixed!

[JustGettingStarted]

11 minutes ago, Berta said:

 

"Maybe you should file an IRIS complaint. "  

I have done IRIS before and at times did not even get an answer to my question or complaint.  And then they gave me bad info.  Like the time I asked if an upcoming skin C&P was going to be an entire skin exam, or just include an exam for my left hand because someone at VA had put in a bogus increase for warts on my left hand.  IRIS said it was an entire skin exam, but I drove 3 hours round trip to find out the examiner was only able to look for warts on my left hand.  

 

 

11 minutes ago, Berta said: