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]

Did you get the decision?

[JustGettingStarted]

25 minutes ago, Berta said:

Did you get the decision?

There is no appeal yet so there is no decision.  That is one of the things that is so wrong with the letter. 

I faxed the NOD in on 22 May 2018.  According to Vets.gov, I should check after 3 months if it doesn't show up on their site.  Then St Pete will have to do a Statement of Case before they file the appeal with the BVA.  I think Vets.gov is saying it can take 12 to 18 months before the appeal is ready to go to BVA/RAMP.  

[Berta]

  "The second decision letter was in Jan 2017 when they said I was taking the meds constantly in 2009; however, my med was not considered a systemic medication in 2009.  It went on to say there was a policy change in 2016 that reclassified it as systemic.  That was a serious error since the skin law did not change since 2002 and we all know the VA cannot base CUE on policy.  "

Do they mean that decision as "recent"?

I am baffled here- did you file a formal CUE on the 2017 decision?

"I faxed the NOD in on 22 May 2018" on the Jan 2017 decision?  How would that be a timely NOD?????

Or do you mean this decision? in your June 2017 post:

"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)."

Have you posted the June 2017 denial here anywhere?

 

Edited June 5, 2018 by Berta

[JustGettingStarted]

4 hours ago, Berta said:

  "The second decision letter was in Jan 2017 when they said I was taking the meds constantly in 2009; however, my med was not considered a systemic medication in 2009.  It went on to say there was a policy change in 2016 that reclassified it as systemic.  That was a serious error since the skin law did not change since 2002 and we all know the VA cannot base CUE on policy.  "

Do they mean that decision as "recent"?  [The date of the second decision letter was Jan 2018.  Sorry, wrong year].

I am baffled here- did you file a formal CUE on the 2017 decision?  [I filed a reconsideration for an earlier effective date on the Jan 2018 decision]

"I faxed the NOD in on 22 May 2018" on the Jan 2017 decision?  How would that be a timely NOD?????  [Again, the date was Jan 2018].

Or do you mean this decision? in your June 2017 post:

"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)."

Have you posted the June 2017 denial here anywhere?

I answered the questions above in brackets.  Sorry for the confusion, I kept writing Jan 2017 when I should have written Jan 2018.  

Here is a synopsis of the denials:

6/6/2017:  Evaluation of [skin condition] is continued as 0 percent disabling.

We reviewed the evidence received and determined your service-connected condition hasn't increased in severity sufficiently to warrant a higher evaluation.  [This is when the examiner left my medications off the exam, although I provided them to him.  Also, the rater did not weigh all the evidence that had been submitted.  I had lots of medical and pharmacy records to support the constant use of systemic therapy in my file].

10/01/2017:  We received you reconsideration of the evaluation for your service-connected [skin condition].  We scheduled you for a VA examination and a medical opinion regarding your current continuous treatment.  However, we received notification that you were unavailable for your scheduled VA examination on September 8, 2017.  The results from this scheduled exam may have allowed us to grant an increase in your service-connected disability compensation.  If in the future you provide us with your good cause reason for missing your scheduled VA examination and you indicate a willingness to report for another VA examination we will reconsider your claim.  We have continued our non-compensable evaluation for [skin condition].  [The exam was never scheduled and VA admitted that later.  I got my own dermatologist to do a DBQ at this point and reopened the claim.]

1/05/2018:  The evaluation of [skin condition] is increased to 60 percent disabling effective May 5, 2017.  

Service connection has been established from the day VA received your claim.  When a claim of service connection is received more than on year after discharge from active duty, the effective date is the date VA received the claim.

We have assigned a 60 percent evaluation for your [skin condition] based on:  Constant systemic therapy required during the past 12-month period.  This is the highest schedular evaluation allowed under the law for dermatitis or eczema.

[They ignored my request for an earlier effective date when I filed for the increase, but at least I finally got the increase.]

1/23/2018:  Whether the effective date assigned for [skin condition] was clearly and unmistakably erroneous and evaluation of [skin condition], currently 60 percent disabling. 

Rating decision dated August 11, 2009, granted service connection for [skin condition] at 0 percent disabling effective May 1, 2009, day after discharge.  The rating decision correctly assigned a 0 percent evaluation based on [skin condition] involving less than 5 percent of the entire body or less than 5 percent of exposed areas affected.  The 2009 rating decision noted that you continue to take [medication] on a daily basis to reduce flares of the condition.  At the time of the August 2009 rating, [medication] was not considered systemic therapy as it is an anti-[redacted] drug but not an immunosuppressive drug, therefore a higher evaluation was not warranted. 

We received your claim for increase evaluation for [skin condition] on May 5, 2017.  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 or other immunosuppressive drugs" medication(s) prescribed by a medical professional to treat the underlying skin disorder.  Therefore, no clear and unmistakable error is shown.    [They quoted MR21-1 and not Title 38 to determine CUE here.  I  objected because CUE cannot be based on policy; it has to be based on law.  The skin law in Title 38 has been exactly the same in 2002 and that is what my request is based on.]

5/17/2018:  The evaluation of [skin condition] is continued as 60 percent disabling.  We have assigned a 60 percent evaluation for your [skin condition] based on: Constant systemic therapy required during the past 12-month period.  This is the highest schedular evaluation allowed under the law for dermatitis or eczema.  [In this decision, my request for an earlier effective date was completely ignored.]

4 hours ago, Berta said:

 

 

[Berta]

In May, I resopnded to the NOD you filed:

"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."

That is still my advise.

But, I would like to read the most recent denial- can you scan and attach it here with the Evidence list they used?

 

[JustGettingStarted]

Are you talking about the RAMP letter that says I can't do RAMP right now?  That letter was all wrong because St Pete hasn't even processed my appeal yet.  From I'm learning, it could take them a year or longer to do the Statement of Case.  So I have no BVA decision letter.  

There wasn't much at all to the last denial from St Pete for my skin condition because they completely ignored my request for an earlier effective date.  It is like it never happened.  They treated it like I was requesting an increase for a condition that is already at the max rating.  

I am attaching a copy of the last real denial which used false reasoning to deny me.  They based the denial on an update to MR21-1 that occured in 2015 (The VA said 2016, but they got the date wrong, of course).  The skin law is Title 38 and it has not changed since 2002.  The update to MR21-1 was because this was a common error many evaluators where making.  You can search BVA decisions, and find decision after decision in favor of the veterans because the VAROs did not apply a broad enough definition of "systemic" medications.  If you check the BVA decisions, you can see where other drugs, such as anti-inflammatories, antivirals, antifungals, etc... were not being counted as systemic drugs.  In the vast majority of these cases, the veterans won their claims on appeal.  I have never seen MR21-1 used against a veteran in the BVA decisions.  Here is where the change to MR21-1 is that they used to deny my claim:  https://view.officeapps.live.com/op/view.aspx?src=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiv%2Fch04%2F10-5-15_Key%20Changes%20M21-1III_iv_4_SecJ.docx

Scan0025.pdf