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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
I am just wondering to what extent does the VA's Duty to Infer reach? I keep seeing it mentioned but I am not finding any particular bounding rules or interpretations, so any links or opinions would be great. Take for example a post I read this morning. OP was initially rated as 70% PTSD and was not/had not been working. Said it was in his file. Asked if VA should have inferred IU. So what has to be in their file to trigger the Duty to Infer? Is simply stating they are unemployed enough to trigger the question? is a mention in their intake memo enough? from their Primary Care doc? Psychiatrist? does a discussion with the 1-800 number trigger this duty? What if they are homeless or near to becoming homeless is that enough? Do they have to have an extensive statement saying they have not worked in two decades (or whatever) and don't think they ever will again? Would the duty to infer by itself require the VA rating decision to mention IU or send the IU form with an explanation? For example my latest rating decision for SMC K include a statement that I might have a claim for Voiding Dysfunction and tells me to file a "new" claim if I want to explore being rated for it. To my mind this is a Duty to Infer action on the part of the Rater; taking that back to the 70% PTSD example should there also have been a statement inferring possible IU and the forms needed to process such a claim? What about something like sleep apnea? I know the rules have changed on needing a statement that CPAP is "Medically necessary" but what if under the old rules a sleep study is done, a cpap issued and following that a C&P finds the veteran to be Service Connected for PTSD and has Chronic Sleep issues? Should the rater 'infer' that C&P is in order, or does the veteran have to intuitively know (yeah right) that SA is a ratable condition and then has then file a new claim? what about under the new rules? how would a new veteran know that their sleep apnea might be a ratable condition if service connected? doesn't the VA have an obligation to tell us if some condition is potentially a ratable condition or secondary to a rated condition? I cannot imagine it was the intention of Congress for Veterans to have to know things and rules they could not possibly be aware of before they file claims, particularly veterans new to the VA process. In that light it makes zero sense that legal requirements such as a Duty to Infer would/could be narrowly interpreted. Any links, discussions, BVA or CAVC results, etc would be appreciated.