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CUE for Eczema-like condition going to RAMP

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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.

.

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This is a case that is similar to mine that was lost at BVA and went to CAVC.  The CAVC sided with the veteran that his oral antifungal drug is a systemic medication, and then they remanded it.  The court uses Mauerhan v. Principi to say any medication that affects the entire body is systemic.  It is based on the 2002 change to the skin law.

The meat of the decision is this:

"Because "systemic therapy," which is the type of therapy that creates compensability, is connected to the phrase "corticosteroids or other immunosuppressive drugs" by "such as," those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating. Mauerhan, 16 Vet.App. at 442. Consequently, the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs." Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs."

http://www.veteranslawlibrary.com/files/CAVC_cases/2016/Warren_13-3161.pdf

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You have certainly done a lot here to support your claim.

Has any doctor stated in writing anything (that VA has) that would satisfy this part of the above  M21 download:

"f. Systemic Therapy Such as Corticosteroids or Other Immuno-suppressive Drugs The term “systemic therapy such as corticosteroids or other immunosuppressive drugs,” that is contained in certain DCs under 38 CFR 4.118, refers to any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder. Medications that are applied topically (directly to the skin), including topical corticosteroids or immunosuppressives, are not considered systemic for VA purposes. Note: When there is a question as to whether or not drug treatment is systemic therapy for rating purposes, the Veterans Benefits Administration (VBA) must request clarification from a VA or other licensed medical professional. "

What, if anything , have they done regarding that Note:

 

"Note: When there is a question as to whether or not drug treatment is systemic therapy for rating purposes, the Veterans Benefits Administration (VBA) must request clarification from a VA or other licensed medical professional. "

 

I will prepare a CUE claim for you and post it here later.

 

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Tenative CUE Draft- I am posting it here but want to go over it again-

 

To:

VARO                                                                                       Date:

 

                                                                                                   C #:

Attention to : ( put here the alpha part of the alphanumeric code that is on the top right hand side on the decision-it is the initials of the last person who handled your claim)

This is a claim of Clear and Unmistakable Error under auspices of  38 USC 5109 A.

You have violated 38 CFR 4.6, to my detriment:

“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. “ 38 CFR 4.6

38 CFR 4.6:

 

The CUE is within your recent ( date ) decision and within your 2009 decision and the Legal evidence you failed to apply to my CUE claim of ( date of the CUE they just denied) is found within this conclusion by Judge Bartley, US CAVC:

 

“ Notwithstanding my disagreement with the majority's interpretation of DC 7806, I concur that remand is necessary in this case because, as my colleagues note, VA has interpreted the phrase "systemic therapy such as corticosteroids or other immunosuppressive drugs" in that DC to mean "'any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder.'" Ante at 5 (quoting M21-1MR, Part III, subpt. IV , ch. 4, sec. J(3)(f)). Given the evidence of record that establishes that Mr. Warren is receiving systemic therapy that is orally ingested, R. at 454, 456–i.e., evidence that appears to satisfy VA's own definition of the phrase "systemic therapy such as corticosteroids or other immunosuppressive drugs"–I agree with my colleagues that the Board provided inadequate reasons or bases for denying a disability evaluation for bilateral onychomycosis in excess of 10% under DC 7806.”

Source: UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 13-3161 TREMELL L. WARREN, APPELLANT, V. ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Decided May 10, 2016 )

My medical evidence in your possession, since ( date)   reveals I have been on systemic medication since ( put date here).

The Warren case also clearly states:

The guidelines for rating skin conditions, set forth in the VA Adjudication Procedures Manual (M21-1MR), provide that "[t]he term 'systemic therapy such as corticosteroids or other immunosuppressive drugs,' that is contained in certain [diagnostic codes] under 38 C.F.R. § 4.118, refers to any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder." M21-1MR, Part III, subpt. IV , ch. 4, sec. J(3)(f); but see Johnson, 27 Vet. App. at 504 (holding that the "use of a topical corticosteroid is systemic therapy within the 5 meaning of Diagnostic Code 7806"). Further, the M21-1MR explicitly states that "[f]or more information on the meaning of 'such as' in the rating schedule, see Mauerhan v. Principi, 16 Vet.App. 436 (2002)." Ibid Warren V. McDonald.

You have also erred in your interpretation of M21-1, Part III, Subpart iv

Veterans Benefits Administration October 5, 2015

 

In part:

“f. Systemic Therapy Such as Corticosteroids or Other Immuno-suppressive Drugs The term “systemic therapy such as corticosteroids or other immunosuppressive drugs,” that is contained in certain DCs under 38 CFR 4.118, refers to any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder. Medications that are applied topically (directly to the skin), including topical corticosteroids or immunosuppressives, are not considered systemic for VA purposes. Note: When there is a question as to whether or not drug treatment is systemic therapy for rating purposes, the Veterans Benefits Administration (VBA) must request clarification from a VA or other licensed medical professional.

The Warren USCAVC decision is dated May 10, 2016.

Warren filed the claim in 2007. My initial denial, enclosed, is dated (        ).

Warren V McDonald does NOT question the timeliness of his claim, as to any regulations in 38 USC,38 CFR, or M21-1MR regarding any potential retroactive EED.

Neither Warren, nor Mauerhan V Principi, nor any VA case law or regulation, to include M21-1MR specifically state provisions of Diagnostic Code 7806 do not apply to me,(Put your name here)

 

I request that you determine CUE has been made in both of the enclosed decisions ( the initial decision- 2009) and the recent decision of (date) and that you properly rate my claim under my continuous use of“systemic therapy” as defined in the Warren decision with a proper rating and proper EED ( earliest effective date )

Enclosures:                                                 Respectfully,

The 2 decisions ( _ pages)

  ( I always total enclosures and put my name, address, and C file # on everything )

Just a draft-----at this point                             

 

                                                                

Edited by Berta
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Great Job Ms berta!  :smile:

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3 hours ago, Berta said:

You have certainly done a lot here to support your claim.

Has any doctor stated in writing anything (that VA has) that would satisfy this part of the above  M21 download:

"f. Systemic Therapy Such as Corticosteroids or Other Immuno-suppressive Drugs The term “systemic therapy such as corticosteroids or other immunosuppressive drugs,” that is contained in certain DCs under 38 CFR 4.118, refers to any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder. Medications that are applied topically (directly to the skin), including topical corticosteroids or immunosuppressives, are not considered systemic for VA purposes. Note: When there is a question as to whether or not drug treatment is systemic therapy for rating purposes, the Veterans Benefits Administration (VBA) must request clarification from a VA or other licensed medical professional. "

What, if anything , have they done regarding that Note:  In the DBQ signed by my dermatologist it states: "oral [medication] [#]mg per day, used since 1998 for suppression".  Then I had another unnecessary C&P exam.  I can't get a copy of it until I wait months for a FOIA request, but it said something similar.  I would have to ask my VSO if it mentioned "systemic" in particular but he is out of town right now.  He read it to me and I know it was accurate and felt it would support my claim.  I had a small flare-up at the time of the exam, despite being on suppressive medication, and it was noted on the the exam.

 

"Note: When there is a question as to whether or not drug treatment is systemic therapy for rating purposes, the Veterans Benefits Administration (VBA) must request clarification from a VA or other licensed medical professional. "  [Good one, Berta]

 

I will prepare a CUE claim for you and post it here later.

 

 

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Would the unnecessary  exam be in your ebenefits stuff on line?

I dont think it will matter- I think you got them good.

Unfortunately there is  a lot of noise around here today-  I need to review the CUE again- when it all calms down-

road work----I shouldn't complain - they maintain these hill roads very well.

You made the CUE EASY!!!!!!!!!! You knew what regs they broke and the court decision is GREAT!

Thank you for taking the time and energy to study your decision and M21- and CAVC etc-!!!!!

 

 

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