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

[12R3G]

Brocovet...thanks! I added that to my claim as well.

Hoppy...it's a recurring complaint in my records, plus I have degenerative arthritis with IVDS and some stenosis in the cervical spine that is SC, also DMII with neuropathy in both feet, so not really a stretch. What I as really after was something to hang my hat on an EED back to my original claim.

we'll see...

[Hoppy]

Berta & 12R3G

I am not sure if this claim is being advanced as a CUE. However, there is a possibility that what is being stated is that the rating schedule wasn't properly applied. It sounds like the veteran claims that they were just as disabled at the time of the previous decision and that somehow it was not rated properly. I think Berta has posted specific ways that misapplication of the rating schedule would be a CUE. When addressing the rating schedule it is very important to show how the evidence of radiculopathy met the requirements of the higher rating based on the evidence of record at the time of the previous rating. Hopefully Berta will read this post and clarify this issue.

It's not clear to me as to what point in the process this claim is in. It could be that you were recently rated for the back condition and they omitted the radiculopathy. It is also possible that you were recently upgraded based on radiculopathy and you're trying to show that the radiculopathy existed at the same level of disability on a previously closed claim. If this is the case then investigating the CUE would be a good idea. I'm not sure they will allow new evidence on the CUE. The mistake would need to be based on the evidence of record at the time of the previous error.

The issue of chronicity as it has been discussed relative to the laws posted previously might not even come up if you can prove a CUE. However, to keep the record straight for all readers, I am afraid that your assessment that the SMR represents a chronic condition is not a stretch is a little naïve. Even if it is not a stretch it's a question of who determines whether or not it is a stretch. I have provided examples as to why feel this way below. If it is important to your claim that the SMR represents chronic neuropathy it would be a good idea to get a doctor to back you up.

I would not have brought up the issue of being naïve if your post stated that a doctor had already determined that the radiculopathy in the military was chronic. Or that you posted that you intended to obtain a doctors opinion that the radiculopathy as noted in the SMR represented a chronic condition. Simply stating that there were reoccuring notations of radiculopathy which meant that chronicity was not a stretch might give an individual the wrong impression that this was the way to advance this type of argument . On an issue of this type a doctor would need to make the statement. On an issue of this type I would not expect the rater to take any action to advance the claim without a medical doctor making the determination as explained later in this reply. A rater cannot give weight to your opinion that your medical condition was chronic. Do not expect a rater to interpret the SMR in the same manner you do.

I have seen raters deny claims because doctors called symptoms reoccurring rather than chronic. I've seen raters determine that symptoms that occurred and re-occured for 16 months were not chronic and thus, refuse to schedule a C&P exam. I then submitted an opinion from an M.D. that the 16 month period of symptoms represented a chronic condition and the rater still denied a C&P exam. I was then forced to obtain an opinion from a specialist in the field that the MDs opinion as previously stated was accurate. The only way I could be sure to override the raters determination that the condition was not chronic was to continue to seek medical opinions indicating that the SMR and the 16 month period of the symptoms represented a chronic condition. You can just appeal your claim based on your arguments. However, on the case I was working on I felt it was better to strengthen the medical evidence than rely on a DRO to overturn the previous raters assessment that 16 months was not sufficient to determine the condition was chronic. Alex Humphrey's drilled into me the importance of medical evidence. Alex's posts can be found on a link to top of the claims and research page on hadit.

I am not sure they will schedule a comp exam for the purpose of seeking an EED for a CU E. claim. However, if the claim is still open the medical reports might assist in advancing your position that you are just as disabled at the time of the previous decision as you are now due to the radiculopathy. When a veteran I am assisting who has the means to obtain and IMO I seek the IMO rather than wait for a C&P exam. I also obtain the IMO from a clinician who has previously written favorable reports for the veteran's I am assisting. Waiting for an exam from a doctor chosen at random goes against all of my training. I was trained to develop evidence for workers compensation and civil cases. If it were my claim in chronicity during the military was still an issue, I would take the SMR to treating doctors or obtained an IMO and have them write an opinion that the reoccurring reports of radiculopathy noted in this SMR meet the specific rating schedule requirements for a rating or the increased rating that they failed to apply at the time of the previous decision . If I was representing you, I would not submit arguments based on research and your understanding of the claim alone. I would have a doctor address that the SMR supports a determination of chronicity if it were important to the claim.

I read some flyers on the wall of the RO that told me to just tell the VA that I wanted my condition service connected and they would do the rest. So that's what I did. I made the mistake of writing arguments explaining the obvious to raters for five years and got nowhere. Alex Humphreys who used to post on this site convinced me to find doctors who would back up what I was saying. It took me another two years to find a doctor to read my SMR and write an opinion that supported the arguments I have submitted for years. The one doctors opinion was a slam dunk and I won my claim. It was good that the doctor was to head of an immunology Department at a VA hospital and had performed C&P exams for twenty-years.

[john999]

I filed a CUE claim for an EED back to my original claim because the VA had evidence that I was unemployable, but never made an inferred claim of IU. I am IU now, and I was IU then. The IU evidence was in my private doctor's report. The VA just ignored it. If they had considered the medical report they would have had to consider IU, so they just excluded that evidence from the rating. How do you like those bastards. The VA is also supposed to consider all the evidence before they make a rating. Even when the evidence is right in front of their eyes they refuse to infer ratings or disabilites. If you expect them to put 2 and 2 together to make 4 you will be waiting forever.

[Berta]

I am a little lost here- but the CAVC in a recent decision someone posted here-defined what is and isnt a "claim".

I used this exact part of M21-1 myself-for my pending matters (accrued SMC)

"Petty Officer 3rd Class

****

Group: Second Class Petty Officers

Posts: 76

Joined: 18-May 09

From: Colonial Williamsburg

Member No.: 5,850

Service Connected Disability: 90%

Branch of Service: USAF

You know how you can sometimes "find" something when you are not looking? Well, looking for info for my Outlaw's claim, I found what I was looking for.

Turns out, it is in the M-21MR, Part IV, Subpart ii, Chapter 2 Section A. Para 1. A. states:

Consider service connection for the following disabilities when deciding an original claim for compensation or when additional service treatment records (STRs) are received following promulgation of an original rating decision:

-- all claimed disabilities, and

-- all chronic disabilities found in the STRs, even if they were not specifically claimed.

Furthermore, in a subsequent paragraph dealing with supplemental STRs, the RO is obligated to review and rate any chronic, disabling conditions found even if not previously claimed."

A key word here is "Chronic".

What stage is your claim at?

[retiredat44]

So, if I neglect to add to my claim one of my chronic conditions, the VA must investigate that condition too?

cool.. I always wondered about that..

12r3G

Yes, you are correct. The Va is required to consider all the evidence and the courts have ruled so repeatedly.

For example Roberson vs Principii states:

"The government alleged that an informal claim for TDIU was not raised under the specific facts of Norris's case because entitlement to TDIU requires a showing of at least an informal claim specifically alleging TDIU. Id. The Court of Appeals for Veterans Claims rejected the government's argument because such a position "loses sight of VA's congressional mandate that VA is to 'fully and sympathetically develop the veterans' claim to its optimum before deciding it on its merits.'" Id. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). In addition, the Court of Appeals for Veterans Claims stated that developing a claim "to its optimum" must include determining all potential claims raised by the evidence and applying all relevant law and regulation raised by that evidence regardless of how the claim is identified. Id."

[john999]

retired44

The VA is supposed to consider all conditions in a claim as well as all the evidence. The VA is also supposed to develope a claim to its optimum. However, they almost never do this unless prodded and pushed by the veteran. The VA goes as far as to give minimum consideration to the specific issues raised by the veteran. Then they shut down and shut up until the vet either raises the issues himself or appeal time runs out on the claim. Since their is no punishment to either the VA as an institution or the rater as an individual for leaving the job half done I think they may actually be rewarded for saving the government money. I think the motto is wrap up the claim and pay out as little as possible. If the vet is too ignorant or sick to pursue it then too bad. Many times I don't believe it is the merits of a claim, but the knowledge and persistence of the vet that wins the day.