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!

[vaf]

That kind of strategy appeals to me -- I'll do it.

Thanks!

V-

[Philip Rogers]

New and material evidence will reopen your claim but it will probably be a fight for any retro.

pr

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!

[broncovet]

Val

The idea of the 21-4138 is to "lay the groundwork" for your eventual EED claim. In other words, you ask them what the status is on your (inferred claim). By doing so, you are "continiously prosecuting" your claim..the Va cant say you abandoned it. Further, you are also laying the groundwork for CUE. That is, you pretty much already know that the VA wont address your inferred claim, but you also know that they are required to do so. By sending in your 21-4138 asking them to address your inferred claim, you are

"calling them on the carpet" legally so later when they say, "gee, I didnt know anything about your inferred claim", then your lawyer will have an answer...on ....date, the Veteran sent an letter inquiring as to the status of the claim. The VA had, at that point, an opportunity to dispute the inferred claim and did not do so. The lack of response to your 21-4138 is an admission by the VA that they are not disputing the inferred claim.

If the VA "reaches into their bag of dirty tricks" to try to deny you, and you know they will, then you have created a loophole for you.

Edited March 28, 2010 by broncovet

[broncovet]

Remember the VA is required to "liberally interpret" all the Veterans filings. By sending in the 21-4138, you are putting the VA on notice that you, in fact, intended to file an inferred claim on ......date, and the Va needs to liberally interpret it as a claim. You are filing in a "weasel hole" that the Va wants to weasel out of it.

[Berta]

This is a good example of how the veteran inferred a claim that VA had to act on:

http://www4.va.gov/vetapp09/files2/0915339.txt

[broncovet]

Berta..you are good. The Veteran in the case you cited not only had an inferred claim, but it was also referred to by the claimants representative. This supports the Vetrans "inferred claim" position.

Veterans are not supposed to have to prove "a preponderance of evidence" but rather, be given the benefit of the doubt. In reality, we know that does not happen...that often we DO have to have a "Preponderance of Evidence" to prevail. By a "preponderance of evidence", I take that to mean evidence from multiple sources cooberating each other. Where a single piece of evidence, such as a doctors report should suffice, more often than not you need a doctors report, lay evidence, C and P exams, more doctors reports, IMO's etc.