CUE for Eczema-like condition going to RAMP

[JustGettingStarted]

I have another thread at  the link below.   Two years ago I filed for an increase on my skin condition and requested a back date to May 2009 when I retired.  I have been through a lot since then.  For skin conditions rated the same as eczema, the condition is rated on area of coverage or on how often you have to be on systemic (oral or needle) medications.  I was given 0% in 2009 when I retired and didn't know that I was being low-balled because I did not know my condition was related analogous to eczema. 

When I learned of this two years ago, I put in a claim requesting a higher rating and a back date to 2009.  First, I had an inept examiner that left out my medications.  I was denied and I reopened my claim for reconsideration saying the examiner had messed up.  Then my claim was denied again because the VA said I did not attend a new exam; they later admitted the exam was never scheduled.  Then I was scheduled for a new exam, but I noticed that someone had opened up a claim for increase on warts on my left hand, which was service connected at 0 when I retired.  I was concerned this skin exam was for the wrong thing, but I was assured by IRIS, and the VA 1000 number, that it was a full skin exam.  After travelling 1.5 hours to the exam, I learned the examiner could only look for warts on my left hand and could not discuss my other skin condition.  I was denied again.

At this point, I asked my dermatologist to sign a DBQ I filled out for him although he had never treated this particular skin condition.  However, I provided all the medical info and he signed the DBQ.  I reopened my claim again, sent in the new DBQ, and was finally awarded 60% and became 100% P&T,  but VA ignored my request for an earlier effective date.  So I reopened the claim again.  It only took 9 days for them to deny me saying my medication wasn't considered systemic and that due to a policy change they were able to reward me 60% in 2017 but they could not award 60% in 2009.  I quickly pointed out that CUE had to be based on law, not a "policy change", and that the skin law in my case had not changed since 2002.  There were also US Court of Veteran Appeal cases that supported my claim (see more at the link below).  My claim was opened again. 

This time VA sent me to another exam, which I felt was completely unnecessary since new evidence cannot be used in a CUE claim.  According to my VSO, they wanted to know if my condition was as bad as had just been determined a couple of months prior.  I felt like they were trying to prove fraud at this point, like I was only taking the medication I've been taking for 20 years to get a higher rating.  The exam was on 9 May 2017 and went well.  Despite being on suppressive medication, my skin disease made an appearance.  I reviewed the exam with my VSO and it seems the examiner got all the facts necessary for a success. 

I just got a copy of my decision from my VSO today.  Once again, the letter completely ignored my request for a back date.  Instead they acted as if I had requested an increase and denied that.  I was already rated at the maximum for my skin condition.  

So today, I filed a NOD and filed the Opt-in for RAMP.  I have selected the Higher-Level Review with the "informal conference" which could increase the length of time for my RAMP decision.  However, I don't want any surprises.  But as long as I was filing RAMP for the skin disease, I added a request for an earlier effective date for my upper peripheral neuropathy. 

I am so glad that RAMP has been opened to everyone (unless you have a docket number).  I wanted to jump on the RAMP wagon early before it becomes back-logged like everything else.  My VSO was all for this too.

I will keep you posted on how this goes.

.

[Berta]

"I just got a copy of my decision from my VSO today.  Once again, the letter completely ignored my request for a back date.  Instead they acted as if I had requested an increase and denied that.  I was already rated at the maximum for my skin condition.  "

Preposterous- then again they pulled all sorts of BS on with 2 of my CUE claims.

 

"So today, I filed a NOD and filed the Opt-in for RAMP.  I have selected the Higher-Level Review with the "informal conference" which could increase the length of time for my RAMP decision.  However, I don't want any surprises.  But as long as I was filing RAMP for the skin disease, I added a request for an earlier effective date for my upper peripheral neuropathy. "

That's good but you can also file a CUE on  their most recent denial, regarding the back date separate from the NOD. It would be what I call a GCY VA CUE ( GCY (Go CUE Yourself VA) but I really mean it is a CUE filed within the appeal period.

If your rep never heard of that-and comes here I will show him what I mean.

Unfortunately I had asked former Sec Shulkin to prepare a fast letter, and explained this tactic to him. Maybe the next VA Secretary will do something about it.

VA fought every single claim I filed but has never questioned the premise of my CUEs ,filed within the appeal period. 2 other vets here had success with this GCY tactic.

 

My HBP Cue is here somewhere.

I had filed the claim under 1151. The day after I got the denial ( because they again refused to read my evidence_ a 2 page report dated 1997 from VA Central Office)

I filed a CUE against them. They reversed and awarded in mere weeks.

They had violated 38 CFR 4.6 -my Favorite regulation.

I didnt need to file a NOD.

The VA hates it when we call them on a legal error-it shows they cannot outsmart us.

My SMC CUES were another story-they took years to award at the RO Level.

Literacy is apparenty not a job requirement at the VAROs.

 

Edited May 22, 2018 by Berta

[JustGettingStarted]

Thanks!  I am printing out 38 CFR 4.6 - Evaluation of evidence to have in front of me when I talk to the RAMP decision maker.  That's a keeper.

§ 4.6 Evaluation of evidence. The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

[Berta]

When I was in Military School (AMU) I had to take a course on AmerIndian warfare-

It was taught by a retired Lt Colonel and that is where I got the little motto at the bottom of my posts.

The VA will use the regs against us if they can (they even tried to make up a regulation to deny my SMC CUE claim)

But sometimes we sure can use their own regulations against them! 

The regulations are  often a great  weapon we have against their War of the Words!

 

 

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we

 

 

 

 

 

[broncovet]

There may be something here that was overlooked and not discussed.  Again and again, when 38 CFR 3.156 b or 38 cfr 3.156 c can be used, I dont recommend raising the level of review to CUE, when a simple reopening keeps the benefit of the doubt in your favor.  

Read your decisions.  Did they cite the exam which (failed to state) your meds in the decison as "evidence"?  

If they did NOT cite this medical exam, then you should be able to resumbit it and get it reopened for an earlier effecitive date (3.156b), if your claim is pending (in some type of appeals).  

You dont want to use a sledge hammer to swat flies..you use a fly swatter or rolled up newspaper.  Cue is like a sledge hammer, and, while effective, look what the sledge would do to your wood, (standard of review) first.  

 A "wild swing" at Cue will likely do more damage than it fixes.  Now, a precisely driven CUE can effect a home run.  

You need to cite the regulations VA violated..and which decision and where..cite where there was an error.  You also have to show how the error was outcome determinative, and undebatable, and incosistent with regulations at the time.  The Cue sledge will work, but not when swung wildly.  

Edited May 23, 2018 by broncovet

[JustGettingStarted]

Broncovet -

Did you read my previous post mentioned above?

I have reopened this claim 7 or 8 times.  The first time I claimed it, my C&P examiners left my medications, essential for 60% rating, off the exam although I listed them 4 times.  I complained about the exam and the VA reopened again. This time they denied my claim saying I did not go to an exam that was never examined (and I have that in writing).  Reopened again and I was scheduled for a new skin exam - when I arrived I found that someone at VA had opened a claim for increase on my left hand and that was all the examiner could look at.  I was denied again.  I opened it again and was denied because the VA said I used topical medication which was not systemic whereas nowhere in my records does it mention topical medication.  Then I had my dermatologist do a DBQ and I was finally awarded 60% for my skin condition, but my request for a back date was not addressed.  I reopened the claim again for the back date and it was denied because VA said Title 38 did not consider my medication to be systemic in 2009 but it was systemic in 2017 due to a policy change.  I reopened the claim again pointing out that the skin law in Title 38 for my claim had not changed since 2002 and they could not decide CUE based on policy change; it had to be based on law.  My claim was reopened again, and the VA treated it as an increase instead of a request for an earlier effective date, sending me to yet another exam.    This was made even more ridiculous since I already have the maximum rating for the condition.

I have cited the regulation every time I did this.  I also cited two cases decided at the US court of veteran appeals that supported my claim (see my other post mentioned above.).  Every time, the VA  ignored my request for an earlier effective date and treated my claim as an increase, or ignored my medications, or gave me the wrong exam, or listed the wrong medication, or did not follow the law.  Believe me, I have read every decision carefully, along with my VSO.  We are both shaking our heads over how ignorant the examiners are, or they think I must be.  My VSO said he has learned more about CUE from me than he learned in a 2-week class he had to sit through.

I have read a dozen cases where veterans with the same skin condition on the same medicine have won their cases at the BVA level.  That is why the policy in MR21-1 was changed in 2015 - too many VAROs were making errors in interpretation of the law, which is the foundation of CUE.

I agree with Berta - the raters at the regional office cannot read.  

JustGettingStarted

[Buck52]

JustGettingStarted

Have you ever considered request a DRO Heaing at your R.O.

With all your evidence   a DRO could make a decision on the rating and the EED. but be aware this evidence has to be new and material evidence

as brocovet posted these Regs

3.156 New and material evidence.

(a)General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

The only other thing about the adjication  is they usually go by the date in effect at the time of the decision...if the provisions were not in effect at the time of denial  and they changed  ..on a reopen claim and approved they go by the change in provision date...I believe that's right?

Edited May 23, 2018 by Buck52