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]

12R,

OK how about this - perhaps your remembering something about an inferred claim.

Look down towards the botton in bold.

http://www.va.gov/vetapp09/files3/0918574.txt

The Veteran contends that the effective date for the grant of

service connection for PTSD should be earlier - either in

1998 when he was originally diagnosed with PTSD or on January

11, 2001 the date a VA treatment record also included a

diagnosis of PTSD. On August 29, 2003, within a year of the

November 2, 2002 rating decision that granted service

connection for Gulf War syndrome manifested by headaches,

joint pains, and periodic nosed bleeds, the Veteran requested

to "reopen" a claim for an increase for such conditions.

The RO also accepted this August 29, 2003 claim as an

"inferred" claim for PTSD.

Records show that in a January 2004 rating decision, the RO

granted service connection for PTSD and assigned a 50% rating

effective December 4 2003, the date entitlement was shown

based on the facts from a VA psychiatric examination. In a

December 2004 DRO decision, the effective date of service

connection for PTSD was revised to August 29, 2003, the date

of receipt of the Veteran's "inferred" claim for service

connection for PTSD. In a subsequent July 2005 DRO decision,

the effective date for the award of service connection was

once again revised to August 29, 2002, one year prior to the

date of the Veteran's "inferred" claim for service

connection.

The Veteran contends that there was medical evidence of

record that showed a diagnosis of PTSD while his original

claim seeking service connection for Gulf War syndrome

manifested by headaches, joint pains, and periodic nosed

bleeds was pending. The Board notes that there was indeed a

January 1998 VA treatment record diagnosing the Veteran with

PTSD as well as a social work consult note dated on January

11, 2001 that also included a diagnosis of PTSD. The Veteran

maintains that the two medical records were tantamount to an

inferred (informal) claim for service connection for PTSD to

support assigning an effective date earlier than August 29,

2002. However, the Board simply cannot grant an earlier

effective date based on medical evidence of record. Medical

evidence of a condition is not a claim for benefits. See

Lalonde v. West, 12 Vet. App. 377, 382 (1999). In Lalonde,

there was evidence of record prior to the Veteran's claim for

secondary service connection for an anxiety disorder

indicating it was related to a service-connected disability.

However, as the Court stated,

...

the effective date of an award of service connection is

not based on the date of the earliest medical evidence

demonstrating a causal connection, but on the date that the

application upon which service connection was eventually

awarded was filed with VA. Furthermore, because the

appellant had not been granted service connection for his

anxiety disorder, the mere receipt of medical records cannot

be construed as an informal claim. See 38 C.F.R. § 3.157.

12 Vet. App. at 382 (other citations omitted).

Thus, as the Court made clear in Lalonde, the receipt of

medical records evidencing PTSD did not constitute an

informal claim for service connection for this condition.

The mere presence of medical evidence, even in the service

medical records or at a VA examination, does not establish

the Veteran's intent to seek service connection. See 38

C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 35 (1998);

Lalonde v. West, 12 Vet. App. 377, 380 (1999); Talbert v.

Brown, 7 Vet. App. 352, 356-57 (1995).

As the Veteran filed an "inferred" claim for service

connection for PTSD on August 29, 2003 (more than a year

after leaving the military) and there is no evidence or

communication from the Veteran indicating an intent to file a

claim for PTSD prior to that date, there is a preponderance

of the evidence against his claim. There is no reasonable

doubt to resolve in his favor. 38 C.F.R. § 3.102. An

effective date earlier than August 29, 2002 is not warranted.

ORDER

Entitlement to an effective date earlier than August 29, 2002

for an award of service connection for PTSD is denied

[12R3G]

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.

So, now we know (and I wasn't going nuts...well, not this time)

[darkhorse]

Just remember that if it's considered a inferred claim you should bring it to VA's attention. Don't rely on the VA to start processing an inferred claim for ya even though they should. EED is often erred on VA's fault since they often start the IU claim when the Vet files. We all know that almost always were too disabled to work before we filed the claim. If you were fired from your job due to your disability and then filed for IU three months later then your termination date could be considered an inferred date but remember you should address this to the VA before they make a decision or you will probably have to appeal for the correct EED.

DH

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.

So, now we know (and I wasn't going nuts...well, not this time)

[12R3G]

darkhorse...yeah, never leave it to the VA to do the right thing. I mean, do they really read STRs? I'm thinking--not.

Anyway, what I was looking for was a reason to force an EED based on my original claim date. The reasons section notes "...numbness and tingling in the left arm..." documented in STRs in my cervical (now IDD) claim, but didn't rate the arm, just the neck.

On a subsequent C&P--to increase the neck rating (successfully)--I mentioned the arm to the doc, who put it in his exam notes. The VA then mentions this in the cover letter to the rating decision, but they aren't sure I'm filing a claim.

Now, according to their own manual, I should not have been required to file the claim, they should have rated it to begin with.

So, file claim, ask for EED back to original claim which is over a year ago.

we'll see.

[broncovet]

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."

[Hoppy]

I would suggest that you continue to search BVA decisions and find more specific applications which relate your neuropathy condition as noted in the SMR to a chronic condition. The question arises as to what was known to be causing the neuropathy at the time you were in the military? If it was undiagnosed and related to a symptom of an undiagnosed condition I would wonder how a rater could betermine that it was chronic while in the military.

There is a list of chronic conditions the VA uses. Even though the condition I had in the military was known to be chronic by doctors it was not on the VA's list. Also, there were multiple etiologies for the condition I had in the military. Some were chronic some were not. The doctors did not state the condition was chronic while in the military. After I got out it was determined that I had an uncurable form of the disease. My SO would not seek an EED.

Another question that arises is how was the neuropathy diagnosed? Were there nerve conduction tests. "evidence of neuropathy" does not sound conclusive to me of either neuropathy or chronicity. It would be a much stronger showing of an error by the rater if you had multiple reports related to specific tests and a specific statement from a clinician in the SMR that the condition was chronic.

Additionally, what level of disability can be associated with "evidence of neuropathy" according to the rating schedule? Would it be a ratable condition.?

Check out every angle you can and surround them with evidence. Leave no wiggle room.