Pointing Out the VA’s Clear and Unmistakable Error (CUE)
25th Infantry Division soldier spraying a tree line with M60 fire -Operation Cedar Falls 1967
Winning a CUE (Clear and Unmistakable Error) claim or getting the VA to call a CUE on themselves is a difficult task to put it mildly. 38 CFR 20.1403 defines a CUE as:
“(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.”
It’s got to be so blatant and obvious that you simply can’t miss the error.
Things that are NOT a CUE:
Changed diagnosis – A new medical diagnosis that “corrects” an earlier diagnosis.
Duty to assist errors.
Evaluation of evidence – A disagreement as to how facts were weighed or evaluated.
The CUE must also be based on the facts and law that existed at the time of the decision.
US Army 24th Regiment soldiers in a house in Mosul -Operation Iraqi Freedom
A Veteran I was helping had been assigned a 30% rating for Tinea Versicolor, also know as Pityriasis Versilcolor, which is a fungal rash of your skin that causes lesions all over your body. It can get quite uncomfortable in the heat especially, causing itching and pins and needles that make you feel like your skin is crawling. The Veteran had initially been assigned a 30% rating under DC 7806 based on 20%-40% of his skin affected.
The relevant part for our discussion here of diagnostic code (DC) 7806 under 38 CFR 4.118 is:
At least one of the following for 60% rating:
Characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or
Constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period
At least one of the following for 30% rating:
Characteristic lesions involving 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 6 weeks or more, but not constantly, over the past 12-month period.
(This is part of the general rating formula for diagnostic codes 7806, 7809, 7813-7816, 7820-7822, and 7824. If you don’t know what DC your skin condition is rated under it could be helpful to request your VA Claims File and/or get a copy of your VA Code Sheet)
327th Infantry company commander -Operation Wheeler 1967
The Veteran had a few issues that I was working on, and as I was going through his VA Claims File I noticed that the VA had missed a critical fact in his initial claim for the Pityriasis Versicolor that could constitute a Clear and Unmistakable Error.
The Veteran had been prescribed a few different medications over the years, both oral and topical, but at the time of his initial claim he had been prescribed oral Hydroxyzine Hydrochloride for the itching caused by his skin condition. The Veteran had used the medication daily and was still taking it 3 times per day.
You’ll notice in the rating criteria above that it mentions: “Constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period”
Medication usage that meets that criteria will make a Veteran eligible for a 60% rating. In their initial rating, the VA had completely failed to consider whether the Veteran’s constant use of Hydroxyzine Hydrochloride constituted systemic therapy.
CH-47 Chinook lowering a water trailer -Operation Wheeler 1967
Warren v. McDonald [docket no. 13-3161 (May 10, 2016)] confirmed that “systemic therapy” includes both oral and parenteral medication, and the decision summary further stated:
“The Court in this case considered the term "systemic therapy," as used in 38 C.F.R. § 4.118, and found that “the types of systemic treatment that are contemplated 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.” The Court found further support for this holding in the M21-1MR, VA’s adjudication manual, which defines “systemic therapy” as ‘any oral or parenteral medication prescribed by a medical professional to treat the underlying skin disorder.’” (emphasis added)
It’s important to note that “systemic therapy” means that it affects more than just the bodily system the medication is meant to target. Corticosteroids and immunosuppressive drugs have the real potential to cause a lot of havoc in the human body and cause notable side-effects, which is why the VA grants a 60% rating for their use. They affect more than just the bodily system (the skin in this case) that they’re meant to treat.
Marines clearing a hotel -Operation Iraqi Freedom II
So the big question was: Does Hydroxyzine Hydrochloride constitute “systemic therapy?”
Everything I found in the medical literature seemed to indicate that it did, but I consulted with the Veteran’s treating physician who confirmed that in addition to being an antihistamine, Hydroxyzine has central nervous suppressant, anticholinergic, antispasmodic, and local anesthetic activity. It crosses the blood-brain barrier and thus would be considered systemic therapy.
The Veteran’s physician was gracious enough to provide a letter summarizing those facts as well as documenting that the oral Hydroxyzine treatment had been constant since before the VA’s initial decision. By this time, the Veteran’s skin condition had spread to over 40% of his body, so I also had the doctor complete a DBQ reflecting that fact so that all our bases were covered to get a 60% rating one way or another. The doctor completed that DBQ as part of an in-person exam with the Veteran. I also submitted documentation from the U.S. National Library of Medicine on Hydroxyzine that corroborated the doctor’s statements on it being systemic.
UH-1D medevac landing on a Armored Troop Carrier on the My Tho River in 1967
Even though we had provided them everything they needed to make a decision on the claim, they still attempted to call the Veteran in for another C&P examination. In most circumstances I encourage Veterans to attend C&P examinations as not attending them can be a surefire way to get your claim denied. But the VA had more than enough to make a decision on the claim, and the documentation that I had sent to them was impeccable. This seemed to me like a blatant attempt to “develop to deny,” where the VA requests further development in order to find a basis to deny the claim, which is illegal.
I respectfully told the VA to go pound sand, and that the Veteran would not be attending the C&P exam. Then I waited.
The VA rendered a decision a short time later, acknowledging their Clear and Unmistakable Error in not considering whether Hydroxyzine Hydrochloride constituted systemic therapy. In their decision, the VA agreed that Hydroxyzine constituted systemic therapy. They granted a 60% rating for the Veteran’s skin condition based upon his constant use of Hydroxyzine, and based upon more than 40% of his entire body being affected. They backdated the effective date of that rating to the date of his original claim a few years earlier, providing a good retro payment for the Veteran.
Now this should not just be limited to Hydroxyzine Hydrochloride, other oral or parenteral medications could potentially make a Veteran eligible for a 60% rating if the Veteran can prove that the medication constitutes systemic therapy and it’s use is constant or near-constant.
It’s always a lot of fun to find glaring mistakes that the VA has made and help Veterans get the benefits they deserve. I thoroughly enjoyed this case.
One important thing to note, medications that are applied topically (directly to the skin) are NOT considered systemic by the VA, even if they are topical corticosteroids or immunosuppressives. Only oral or parenteral medications potentially qualify.