Filling NOD Question

[flow1972]

I finally got my ratings for my secondaries and other assorted SC Conditions.  Good news, I"m now at 90%.  (literally 84.9 rounded to 90)  One of the conditions was not rated correctly according to the schedule.  It's the general skin condition schedule rating.  They rated at 10% instead of 30%.  The 30% rating states:

-Characteristic lesions involving more than 20 to 40 percent of the entire body OR 20 to 40 percent of exposed areas affected, OR

-Systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, over the past 12-month period.

 

I provided 5 separate prescriptions(42 pills each to be taken 3 times a day for 5 days as indicated)  that would cover 10 weeks 8/2018 to 11/2019.  Even if they dropped the 11/2019 rx, there would be enough meds to cover 8 weeks in a calendar year.

 

I looked up whether they were trying to infer the med was not "systemic therapy", and I found Citation 1519469 where it specifically says it is because it's not a topical cream.

Although the rating criteria mention corticosteroids or other immunosuppressive drugs as examples of systemic therapy, the term "such as" indicates that this is 
not an exhaustive list, and "systemic therapy" is not otherwise defined in the regulations.  
See, e.g., Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (holding that with respect to the criteria for rating mental disorders, "[t]he use of the term
 'such as' demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type 
and degree of the symptoms, or their effects, that would justify a particular rating.").  The common definition of "systemic therapy" would be treatment of a 
disease which affects the entire body.  See Dorland's Illustrated Medical Dictionary, 1865, 1911 (32nd ed. 2012) (defining "systemic" as "pertaining to or 
affecting the body as a whole" and defining "therapy" as "the treatment of a disease").  As the Veteran was prescribed oral antiviral medications to suppress 
the herpes virus throughout the body, as opposed to a topical ointment, the Board finds that such treatment constitutes systemic therapy.  

 

That being said, should I file a NOD or Appeal?  Or are they the same thing?  Then how to file a NOD verses appeal?  I've seen conflicting info...

Thanks in advance.  Getting to this point has been only doable with all of the info here.

[Buck52]

If the denied you on this condition but warranted the others and those ratings were correct..I would file the NOD on the condition that you showed the criteria to be  and submit that as your EVIDENCE  correct rating for that condition,  take what they give you and NOD this other condition.

other may disagree and NOD everything? but if you checked the correct rating criteria for these other conditions that you were approved for and these RATINGS  are correct  I'd take that. (jmo)

IF YOU CAN POST WHY THEY DENIED YOU ON THIS CONDITION   PLEASE PUT IT UP  SO WE CAN HELP YOU MORE ON THIS.

Edited July 17, 2020 by Buck52 (see edit history)

[broncovet]

Filing a NOD is the way you begin an appeal.  You will have to make some decisions:  New evidence or no?

BVA or HLR or SCL?  Hearing or no?  You need to make these choices before filing a nod.  

[Buck52]

I would ask for a DRO HEARING  BEING YOU HAVE THE EVIDENCE.

at a DRO Hearing the DRO as the Authority HE/She can approve this claim on the spot and give you the correct rating.  its better than having to wait on these other appeal avenues brocovet suggested.

However it will more than likely be a TVV  (TeleHealth Virtual Video) with a DRO.  DUE TO COVID-19

i AM NOT SURE ON HOW THEY WOULD CONDUCT THE HEARING??,, BUT YOU SEND IN YOUR NOD and request this hearing  its your choice to do as you want, you can do what brocovet mention too  but the DRO is faster.

[broncovet]

Buck, there is no "DRO" hearing anymore "unless" you are in legacy appeals, and this probably does not apply because everyone is in AMA (Ramp, ie, "non" legacy appeals) after Feb. 2019 decisions, when the new ramp, is implemented VA wide.  

[Buck52]

Roger That bronco, I need some catching up to do.

I never knew they stopped the DRO Hearings?even in this new AMA System.

but your right  the old -legacy/ appeals stopped Feb 19 2019.

Thanks for the update.

Edited July 18, 2020 by Buck52 (see edit history)

[broncovet]

If you are in Legacy, you can remain in there.  But, if you get a decision after Feb. 2019, you are automatically put into the new system which is no longer optional.  (AMA, aka Ramp).  Ramp does not have a DRO, the equivilant is SCL (with evidence) or HLR (without evidence).  There are differences; no soc is required.  

[flow1972]

Thanks for everyone's input.  To clarify, I was NOT denied for this condition.  It was awarded, but it was awarded at 10% when the evidence submitted clearly showed it meets the 30% criteria for rating.  Based on all of the information, it appears that since this is not a legacy claim...the only two options are to Request For Higher Level Review (no new evidence) or Supplemental Claim unless I wanted to appeal to the BVA.  So, I'm going to submit a Request For Higher Level Review with a teleconference.  My understanding is that, this is basically like filing a NOD.  If I have that incorrect...someone please correct me.