ptsd Question On Inferred Claims

[vaf]

Does the statute on inferred claims (5.8.2) apply just to claims for increase of ratings for disabilities? Or, does it also apply to claims that were previously denied, but then new and material evidence became available through a VA C & P exam for another psych condition (organic mental syndrome, a physical disability) that also indicated PTSD?

The GAF was 55, and the examiner gave the veteran copies of literature dealing with coping with PTSD. Yet, the examiner did not formally diagnose PTSD because the exam was not ordered to evaluate PTSD?

thanks!

[Pete53]

That happens a lot. The problem here is although the examiner did find PTSD he was not told to look for it.

Sometimes they can really make you wonder how they got their jobs in first place.

The C&P Docs are not supposed to talk to Veterans about anything except what the VARO asked them to look for and even than if they find something they are not allowed to prescribe meds or treat.

[john999]

The VA is sort of like the old way to train a puppy not to crap on the rug. You put the dog's nose in it. That is what you have to do with the VA. The VA has never inferred any sort of problem or claim during my C&P exams except a personality disorder they tried to use to deny compensation later.

[LarryJ]

........and, now you know how the VA handles "inferred" claims.

I mean, lookit, take MY initial claim. I had the NAVY's x-rays showing my service-incurred injury......and the Balboa Navy Hospital records. I had the Social Security Administration's medical report and notice of award for SSA, for the very same thing I had claimed, I had not one, but two ortho doc's "at least as likely as" medical opinions, I had 4, FOUR, buddy statements.................................and it only took the VA FIVE YEARS before they got me scheduled for my C&P (the C&P doctor took a look at my x-rays, asked why I was there, asked me to walk across the room and back, and made this statement in my C&P report "this veteran's disability is due totally to his injury in service................"

Now, do you think that this same outfit, this VA organization, is going to INFERR anything that is going to wind up costing them a claim?

next question?

Edited March 28, 2010 by LarryJ

[vaf]

OK, let me rephrase this...

I know the VA doesn't really infer claims... What I want to do is throw the BS flag on the situation and tell them that I know that they know they should have done so, but didn't.

The gist of the question has to do with whether I can do it for a re-opened claim previously denied. Or, is this statute just for increases in disabilities already service connected.

I'm looking at the statute, and understand that an inferred claim is an informal claim, and that the VA must, at least on paper, "adjudicate all issues reasonably raised in all documents or oral testimony submitted prior to final agency decision."

There are Court cases cited in the VBM (page 362 for those of you who have the 2009 edition) that state "the VA is expected to carefully review all documents and testimony in a liberal manner to identify and adjudicate all reasonably raised claims."

Again, just for claims to increase disability rating levels, or also claims to re-open previously denied claims?

[broncovet]

VAF

There is no doubt in my mind that the VA will "look the other way" rather than addressing an inferred claim, and you wont get your benefits. Knowing this, this is what I suggest.

Send a 21-4138 form and ask them the "status" of your claim made on .......date (the date you think the claim was inferred). (Of course, keep a copy...you know, certified mail return receipt requested.) They probably wont respond, or, if they do respond, it will be something like a denial to the effect there was no such claim on such and such a date. Persist...there idea is to get you to give up...dont.

Ultimately what will happen, me thinks, is, assuming you have evidence for your claim, you will win it, but at a later date. Then appeal for an EED, based upon your inferred claim of......date.

The RO, will deny you, and you will have to appeal.

The VA fights you tooth and nail for every nickel. I think you will have a good chance at an EED upon appeal. JMHO.

[chr49]

Good suggestion Broncovet