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]

22 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.  

Also, I read that other CUE claim from start to finish before I began my CUE.  It was a great help.

JustGettingStarted

 

22 minutes ago, Berta said:

 

 

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Edited February 2, 2018 by JustGettingStarted

[JustGettingStarted]

Update,

I filed to have my skin CUE reopened on Feb 2, 2018 with lots of legal precedence as evidence this time, since they tried to deny my claim on a Policy Change instead of the law current at the time when I filed before.  

My claim moved to Gathering of Evidence and VA has put in another C&P Exam request with a suspense date of 30 March.  I called VA to let them know I was unavailable most of March because I am travelling and have purchased plane tickets.  

I talked to my VSO and he says the exam is to determine if my skin condition is rated correctly at 60%.  The VA must be grasping at straws because condition code 7806 is very clear that a skin condition with constant use of systemic medication is 60%.  Besides, what is current today has nothing to do with my CUE in 2009 since CUE is based on the law and record at that time.

I can only assume the VA may try to say I only take the medication to get 60% versus a lower rating.  They don't stand a chance because I retired in 2009.  I have pharmacy records back to 2004 that show I have taken the medicine daily for at least 5 years before I retired, and continued to do so up to the time I was finally awarded 60% in 2017.   I didn't even know I was supposed to be getting 60% for constant use of systemic medication until 2016.  In all actuality, I have taken the medication almost continually since 1998.  I have only stopped about 4 times to see if the condition would worsen without it, and it did, so I went back on it within a month each time.

I take this as good news the St Pete VA knows they skrewed up when they tried to deny my CUE based on a Policy Change.  They are grasping at other straws to deny it.  :-)

On top of all this good news, when I called VA to extend my exam window, the rep I talked to put it in VASRD as a First Report of Death (per my VSO).  I had to spend another hour on the phone to get this correct so my benefits wouldn't be cut off entirely.   

The rumors of my death were greatly exaggerated.  

Edited March 1, 2018 by JustGettingStarted

[EODCMC]

I would explain your reason for a C&P postponement on a VA form 21-4138. You can submit this through e-ben. If you are using a VSO, I would even back that up with an e-mail to them. This comes from experience...it saved me.

[JustGettingStarted]

Thanks.  Following up in eBennies is a good idea.  I did email my VSO.  That is how I found out I was dead.

[SigBnSoldier]

JustGettingStarted,  

I prevailed at BVA last month with my CUE.  I'll tell you the win wasn't until I went through the RO, the DRO and then finally the BVA.  I had overwhelming evidence of their obvious error and still VA denied.  When they sent me the SOC, the reasons for denial were a carbon copy of the DRO denial which was a carbon copy of the RO denial.  And none of it made sense nor acknowledged most of the evidence that showed their undebateable error.

To tell you the truth, I was surprised I won at BVA, I was fully expecting to have to go to CAVC or even Federal Circuit.  But when you're right you're right and you shouldn't give up.  But make sure your situation is absolutely undebateable or you won't win.

I'm chiming in only to warn you, do not expect VA at the RO level to grant, not by DRO or by SOC, just expect to go to the next level or even the level after that.

Good luck!

[JustGettingStarted]

1 hour ago, SigBnSoldier said:

JustGettingStarted,  

I prevailed at BVA last month with my CUE.  I'll tell you the win wasn't until I went through the RO, the DRO and then finally the BVA.  I had overwhelming evidence of their obvious error and still VA denied.  When they sent me the SOC, the reasons for denial were a carbon copy of the DRO denial which was a carbon copy of the RO denial.  And none of it made sense nor acknowledged most of the evidence that showed their undebateable error.

To tell you the truth, I was surprised I won at BVA, I was fully expecting to have to go to CAVC or even Federal Circuit.  But when you're right you're right and you shouldn't give up.  But make sure your situation is absolutely undebateable or you won't win.

I'm chiming in only to warn you, do not expect VA at the RO level to grant, not by DRO or by SOC, just expect to go to the next level or even the level after that.

Good luck!

Thanks SigBnSoldier,

In the denial, VA actually wrote that I had all the proper conditions for a 60% rating in 2009, but the policy was different back then.  They validated what I already knew - that this CUE is as clear as they get.

I kept reopening and getting denied, but after about 5 tries, I finally got my skin condition increased from  0 to 60; however, the CUE was ignored in that decision.  This is my second try at just the CUE.  In the first try, it only took 9 days to get my decision back with the ridiculous explanation that there was a policy change in 2016 that allowed for giving me 60% now, but now back to 2009.  The second sentence in the letter stated CUE has to be based on law and then they make a decision based on policy.  Now it appears they are going to try and attack my 60% instead of attacking the CUE itself.  It won't happen since I have tons of medical records that show I have been taking meds for suppression constantly since 1998.  This was 11 years before I retired.  It wasn't until 7 years after I retired that I learned I had been rated incorrectly, and all that time I was still on constant meds for suppression.  The exam they are sending me to won't show anything because my skin condition is well controlled on the medications.  The only way they can win this is to lie on the C&P exam (and I think they've done that before, which is why I got my own C&P exam and won).

I don't think VA can order me to stop taking the medications, and I get them through my Tricare doctor, so they have no control over this situation.  I also know my own body.  I've tried going off the meds a handful of times, and ended up right back on them within a month.

In Florida, it takes over 800 days to do RO Hearing - I do not want to wait that long for my back pay.  I am 100% now, so I will be paid the same now or if I am paid in 8 years.  And since the VA doesn't pay interest on all that money they withhold for years, I would prefer my money now.  If they deny me again, I am determined to find more "new" evidence to invalidate any reason they give to say "no".  

JustGettingStarted