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Showing results for tags 'duty to assist'.
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Hi all. I need help understanding the application of Duty to Assist, Duty to Notify and Duty to Infer (an Issue in Scope) as it pertains to my claims. I will ask what I think is the easy one first. In 2012 I put in for PTSD, Tinnitus, and Hearing Loss. In 2013 Granted 70% PTSD, 10% Tinnitus, Denied Hearing Loss SC but that it does exist (no percent of loss given). The decision letter and the letter with all the reasoning's (which I think is properly called the SOC?) stated my full period of service. It listed all my enlistments (this is significant). VSO was dealing with advanced Pancreatic Cancer when my decision was made. no help there. I knew nothing about C-Files, NOD's or getting my DBQ;s. Just expected to trust VA (my bad, I know). In 2018 I got notice of a Review of PTSD claim C&P and it freaked me out, so before I had to go I started research and found Hadit. I ordered C-file and Got it. Had C&P and before results of C&P my c-file arrived and I found issues that the VA did not even tell me about or mention in my 2013 claim that they, VAMC, had uncovered and related to evidence in my Military STR;s. Found the Audiology DBQ from C&P. Dr. stated she had reviewed my full file then proceeded to state she only looked at my first 4 years in service. In that period she found NO OSHA STS for my hearing and did not mention that my job was associated with hearing loss (though for tinnitus she did). She stated that I did have hearing loss for VA rating but could not Service Connect. In 2018 I filed to reopen and included evidence from the C-file that she (the audiologist) said she had not reviewed. They rejected Reopening because the information was not "new and material." Another factor after that is I was deferred on a Vertigo claim (which was also not mentioned in the 2013 decision but I think should have been inferred as an Issue in Scope). When that claim came in the VA SC'd my Hearing Loss but only to the 2018 date. This claim rated me at 30%, yet the evidence developed by VA shows closer to 100%. Along with that Hearing loss and Tinnitus coupled to Vertigo should be rated as Meniere's disease according to the MR21-1. So what I need to know is : Under Duty to Assist the VA is supposed to help me with exams etc to develop my claim. If the C&P doctor ignores evidence (like dates and nexus) that demonstrates SC, are they violating Duty to Assist? Under Duty to Notify the VA is supposed to tell me what evidence is missing that would get me rated. In this case all the letters included my full service years. Yet under the Audiology section they DID NOT specify the dates she looked at. This leads the uniformed reader (me at that time) to assume she looked at everything. She gave all the numbers and readings and said I had a hearing loss for VA rating purposes but she could not SC based on not reading anything in my file (or at least the part she read) that was not noted as limiting in the decision letter. Did they Violate Duty to Notify? Under Duty to Infer an Issue in Scope. On the issue of Vertigo this came up by the VA doctors and is supported in my intake statement which service connected my PTSD. The VA sent me for a VNG to test for Nystagmus and an MRI that came up showing I have a partially empty sella, which controls the pituitary gland, hormones and is medically tied to issues with Vertigo, tinnitus, and hearing loss. The 2013 decisions are silent on these results. In the deferred 2018 decision where they SC'd hearing loss, they also rated me 30% for Vertigo. Did they violate Duty to Infer an Issue in Scope? Assist? Notify? If as I think they did violate any or all of those, what is my path? CUE? NOD? I know under AMA that I would have to file a supplemental claim to reopen with new and material (relevant?) evidence. Does this fit that standard? attached are the two sections denying hearing loss SCredacted 2013 decision denying SC..pdfredacted 2013 decision denying SC..pdfredacted 2013 decision denying SC..pdf redacted 2018 denial to reopen hearing loss.pdf
Folks: Although I filed a FDC Claim with all of my DOD, VA and Civilian Medical Records and all were provided to the Regional Office "hard-copy" , I was under the impression that VBA still automatically requests a Vets Service Medical Records (SMR's) from DOD as well as all of the VA Records to be loaded into the new VBMS System because of the "Duty to Assist" Requirements - even if it is duplicating the records that I've already sent in and they have? IS this True? Recently, "ebennefits" is saying that I need to load even more evidence? So, I called the 1800 number and was told that it's their (VBA's) requirement to get the evidence that is being referred to and that I should not worry about the ebennefits notification because it's very outdated? The VBA Rep said, that they were looking at the screen with my information right then and that everything in my c-file was in good shape for my claim with the exception of a couple more C&P exams that I'm scheduled for this week? But, I've been told many times before even if I had any new records and added them that my claim can be taken out of the FDC Program altogether? Finally, I'm having movment with my claim again, so I do not want to risk it? Has this happened to anyone before and what did you do?