Va Duty To Consider All Conditions In Claim

[12R3G]

I know I read this here...I just can't figure out what combination of keywords to find what I'm looking for.

Isn't there something written (USC, CFR, VA Policy) that the RO must consider everything either brought up in the C&P or in the SMR (at least during the Original Claim adjudication)?

My situation is that in my SMR there is evidence of periphrial neuropathy in my left are/hand. I'm pretty sure this was discussed in my original C&P (waiting for C-File, probably a year out--they are only up to Oct 2008 ROIs). It came up again a recent C&P for a different issue, and in the rating decision, the VARO asked me if I wanted to file a claim (well, duh?).

Pretty obvious that the C&P establishes a informal claim date--but could this go back to the original claim since it was overlooked?

Thanks for your help...

Edited September 22, 2009 by 12R3G

[carlie]

My situation is that in my SMR there is evidence of periphrial neuropathy in my left are/hand. I'm pretty sure this was discussed in my original C&P (waiting for C-File, probably a year out--they are only up to Oct 2008 ROIs). It came up again a recent C&P for a different issue, and in the rating decision, the VARO asked me if I wanted to file a claim (well, duh?).

Pretty obvious that the C&P establishes a informal claim date--but could this go back to the original claim since it was overlooked?

Thanks for your help...

12R3G,

So have you filed a claim requesting SC for "periphrial neuropathy in my left are/hand" ?

Because medical evidence shows something on a C&P does not necessarily establish

an informal claim date, at all.

Are you perhaps referring to 38 CFR 3.157 ?

carlie

[carlie]

I know I read this here...I just can't figure out what combination of keywords to find what I'm looking for.

Isn't there something written (USC, CFR, VA Policy) that the RO must consider everything either brought up in the C&P or in the SMR (at least during the Original Claim adjudication)?

Thanks for your help...

12R,

Maybe 38 CFR 3.303

http://ecfr.gpoaccess.gov/cgi/t/text/text-...111&idno=38

§ 3.303 (a) Principles relating to service connection.

(a) General. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.

[darkhorse]

Brought up as in????? That can mean subjective Vs. Objective evidence. In an original claim the VA is most likely reviewing the objective evidence and hard evidence meaning SMR's and the Examiner's opinion. If the examiner opines that your current disability is connected to service by just what you tell him/her then the opinion won't have much probative value unless you have it documented.

dh

12R,

Maybe 38 CFR 3.303

http://ecfr.gpoaccess.gov/cgi/t/text/text-...111&idno=38

§ 3.303 (a) Principles relating to service connection.

(a) General. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.

[john999]

Vietnam vets who get the AO exam may get results showing they have AO presumptive conditions, but that does not establish a claim according to the VA. So you get the AO exam and it shows DMII. You still have to file a claim. That sounds absurd but it is true. You will notice at C&P exams they try not to stray from the actual conditon except if offers an alternative NSC reason for your disability.

[12R3G]

Carlie

I looked at both you suggestions...and no, not what I was thinking of. Now I'm wondering if it wasn't something I read in a BVA decision...the context of what I'm remembering (or dreaming up?) is where the RO sees, or should see, a condition that could be claimed, but wasn't listed in the paperwork, and where both SMR and C&P (or other evidence) clearly showed the condition existed in service, continues to exist post-service, and the RO then ignored the condition and didn't rate it and did not notify the vet that it was a claimable condition. The gist was the RO had an affirmative duty to consider everything in the SMR that COULD be claimed by the vet, NOT just the things he/she actually claimed.

Or am I off in my own little world?

Thanks

Charles

[Shark]

I had a C&P in 2005 for peripheral neuropathy. In his report the doctor noted that I had hypertension "at least as likely as not secondary to diabetes". The RO ignored this and I did not even find out about it until a few months ago when I requested my C-file. I have a claim in now asking that it be inferred back to the 2005 C&P exam.