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CUE for Eczema-like condition going to RAMP

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JustGettingStarted

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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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1 hour ago, Berta said:

Thanks for this Berta, I will put my questions in comments in Bold.  You are certainly up and at it early this morning.

 

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.”  [I am reluctant to quote the same MR21-1 that VARO used to deny my CUE claim, but I know that is part of the CAVC case.]

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.  [Once again, this is the exact same "policy" that St Pete used against me, but maybe that would help to show that the policy went in favor of this claim from 2004.]

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.”  [This is exactly what St Pete is using against me.  They are saying that since MR21-1 changed in 2015, and I did my request for an earlier effective date in 2017, I am not entitled to an earlier effective date of 2009.  Don't I need to mention Title 38 "skin conditions" hasn't changed since 2002?.  Or, I am just saying they are wrong using this change in 2015 to deny my claim, because it was used in this CAVC claim to go in favor of the veteran?]

The Warren USCAVC decision is dated May 10, 2016.

Warren filed the claim in 2007. My initial denial, enclosed, is dated (        ).  [Warren filed his claim in 2004 and was given a 0% rating in 2007.  He did a NOD in 2007 and was given 10% despite a 2007 exam that stated he was on constant oral Lamasil since 2004.   2004 is stronger since my initial claim was in 2009. "In December 2004, Mr. Warren filed a claim for benefits for onychomycosis." ]

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                             

Now a couple of questions come up:

First, do I withdraw my NOD and reattack this at VARO?  Can I withdraw the NOD?

Second, I have the latest decision letter that totally ignored my request for an earlier effective.  Legally, that is the more current claim.  Do I ignore it, or is that one the one I address.

Third, when I decided to do a NOD and request RAMP, I also included a request for earlier effective dates for my bilateral cervical radiculopathy.  This case is almost exactly like the one that ASKNOD did on his recent newsletter about the guy with TBI that found records years later ( https://asknod.org/2018/06/02/lz-cork-understanding-§3-156c/)  So I was attacking this as a reopen.  In 2009, I claimed my neck, not realizing that all my radicular symptoms should be claimed separately.  In my retirement physical my doctor wrote "cervical spondylosis with radicular symptoms".  My STRs are full of treatments for numbness and pain radiating down my arms and hands, and it is noted in my 2009 C&P exam. In 2009, the VA said I did not have peripheral neuropathy but they did not explain all the radicular symptoms.   In 2016, I learned I could claim this as a secondary condition to my neck, and was awarded 20% for each side by VA in 2016.  As for the missing info, in 2009, the VA did not acquire my examination by the top AF neurosurgeon although I had identified him as a treating doctor.  For some reason, the neurosurgeon notes I have in my copy of my medical records from that exam, were not in the copy of the C-File when I requested it.  It is not checked off anywhere in my C-File that VA bothered to order those records, although there is indication they ordered some other records.  They may have assumed the records were already in their copy of my medical records, but there is no evidence of it.  I tried for an earlier effective date in 2016, but VARO said I did not have a diagnosis of peripheral neuropathy in 2009.  I know this is a whole other ball of beeswax to be throwing at you.

The big question is whether to continue down the NOD path or withdraw it?  I am so tired of dealing with the knuckleheads at St Pete and them making up their own rules.  I was hoping for RAMP to be my savior here, but so far that isn't going well.  It didn't occur to me when I filed NOD that it could take St Pete over a year to do their SOC.  The good thing is I have my 100% P&T and I am not in a hardship situation.  However, VA is sitting on a lot of back pay owed to me, and they are doing it interest free.  

Thanks for all your help again Berta,

JustGettingStarted

                                                                

 

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[I am reluctant to quote the same MR21-1 that VARO used to deny my CUE claim, but I know that is part of the CAVC case.]

That is up to you- I LOVE to whip out M21 on them!

"First, do I withdraw my NOD and reattack this at VARO?  Can I withdraw the NOD?"

You could but the CUE is separate and the deadline for the NOD would still be pending-so mark your calender.

 

"Second, I have the latest decision letter that totally ignored my request for an earlier effective.  Legally, that is the more current claim.  Do I ignore it, or is that one the one I address." If the CUE covers it, use that decision

and also state the date of any other decision the CUE is applicable to.

For the third issue"The big question is whether to continue down the NOD path or withdraw it."

I would pursue it-if you are still within the one year appeal period-I dont know much about   radicular conditions-but hopefully others will chine in-

 "In 2016, I learned I could claim this as a secondary condition to my neck, and was awarded 20% for each side by VA in 2016.  As for the missing info, in 2009, the VA did not acquire my examination by the top AF neurosurgeon although I had identified him as a treating doctor.  For some reason, the neurosurgeon notes I have in my copy of my medical records from that exam, were not in the copy of the C-File when I requested it. "

If those records were critical to a higher  rating, and maybe even a different  diagnostic code , and the VA never obtained them, or did obtain them but did not consider them, that too would be a CUE under 38 CFR 4.6.

All the rating info and diagnostic codes for radicular disabilities are in the VA Schedule of Ratings here at hadit- you have to scroll about half way down the page to find them but that info is  invaluable, and many vets at hadit have these issues as well.

Yeah-retro that is interest Free- while the price of everything goes up, as we wait. What a system.

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My appeal showed up in Vets.gov yesterday.  The status is 13 to 30 months for DRO Review.  However, when I filed NOD, I checked Traditional BVA on my NOD per my VSO's instructions (there is no block for RAMP right now) and attached the RAMP opt-in per instructions on the VA video. I hope it doesn't sit in someone's box actually waiting for DRO Review.

I called my wonderful VSO this morning to ask if I need to resubmit RAMP since I got that denial letter earlier this week.  He has to check on that.  

I am keeping records of all your advice because I hope to use it in my Form 9 when I finally get a Statement of Case.  Maybe the DRO will realize their errors when they try to write the SOC - miracles happen every day, right?

On the PN, from Asknod's recent post, I learned I don't need CUE to get an earlier effective date.  I can reopen and that still leaves the CUE card open for later if I need it.  Asknod said if you complained of something when you got out, and it didn't get service connected, then it was service connected later, and you have evidence they didn't use the first time, you can reopen the original date.  I think that fits my PN really well and I believe the records I have are highly "relevant".  Just in case there are more doctor's notes I don't have, I called Wilford Hall yesterday and faxed a records request.  The STR I have says something like the MRI I had certainly supports my clinical symptoms of radiating pain and numbness.  

In my case, I complained of radiating pain and numbness from my cervical stenosis when I got out and it is in my 2009 VA exam.  PN was denied service connection because of no diagnosis.  In 2016, I was diagnosed with bilateral PN at a C&P exam and given 20% each side.  When researching to request an earlier effective date, I found no records from my evaluation by a top AF neurologist in my C-File although I had a copy in my STRs, and the neurologist was listed twice as a treating neurologist in my C-File (info I provided when I was retiring). Per the Asknod blog, this is better than CUE because it doesn't dead-end like CUE.

Edited by JustGettingStarted
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My VSO didn't get back to me today, and I know he is off tomorrow, so being the impatient person I am, I just called VA myself.

The person I talked to was very helpful.  He said I did not need to file RAMP again; they would use the opt-in I already submitted.  Also, my claim will skip the DRO and Statement of Case, and be sent straight to RAMP,--do not pass Go, do not collect 800+ days of waiting.  

He put a note in the system to make sure everything is laid out clearly for the RO.  Hopefully, someone at the RO can read and my claim will soon be off to RAMP bliss.  

I went for Higher Review (no new evidence), but if I get denied any part of my claim, I can add new evidence and all the lovely info provided by Berta, and switch to the Supplemental Lane.  I believe my claim for an earlier effective date for my skin CUE is as solid as they come.  If the peripheral neuropathy gives me any trouble, I've got that neurologist from Wilford Hall  in my back pocket.

Will keep you posted.  Fingers crossed that within 125 days I will be posting in the "I won my CUE" thread.  

JustGettingStarted

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