Duty To Recognize Other Disabilities?

[Bevo]

I'm not sure how to word it but I thought I saw a BVA case that said the judge had a duty to assist of they see in your record that you have other sc disabilities... Did I dream this or is it true and does anyone know where the reg is?

[free_spirit_etc]

here are some cases that discuss that:

http://www.ptsdlawyers.com/blog/2013/03/reasonably-raised-by-the-record.shtml

The law requires the VA to "give a sympathetic reading to the veteran's filings by 'determining all potential claims raised by the evidence, applying all relevant laws and regulations.'" Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir.2004) (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added)). Moreover, "the Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal, including all documents and oral testimony in the record prior to the Board's decision." Brannon v. West, 12 Vet. App. 32, 34 (1998); see also Solomon v. Brown, 6 Vet. App. 396 (1994).

The Board may not ignore or disregard an issue merely because the veteran did not expressly raise the appropriate legal provision which corresponds to the benefits sought. Fanning v. Brown, 4 Vet. App. 225, 229 (1993); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Where a VA regulation is made potentially applicable through the assertions and issues raised in the record, the Board's refusal to acknowledge and consider that regulation is "arbitrary, capricious, an abuse of discretion, not in accordance with the law," and must be set aside as such. 38 U.S.C. § 7061(a)(3). Lind v. Shinseki, 06-3637, 2009 WL 159221 (Vet. App. Jan. 23, 2009).

While the law requires VA to give a sympathetic reading to a veteran's filings by determining all potential claims raised by the evidence, and applying all relevant laws and regulations, nevertheless, it is well settled there must be: 1) an intent to apply for benefits, whether formal or informal; and 2) the intent must be communicated in writing. Criswell v. Nicholson, 20 Vet. App. 501 (2006) (citing MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006)).

Edited October 11, 2013 by free_spirit_etc

[broncovet]

I agree 100% with free spirit, but I also think VA "hates" Roberson, and does their very best to manipulate things so they do not have to do exactly what is required in Roberson. Its too early for me to be able to cite case law, but, for example, the court has ruled the VA is not required to go on a "fishing expedition" to find claims possibly raised by the Veteran. (The courts, for example have required a 3 step process to determine if there is a claim: 1. The claim must be written 2. The claim must "show intent" to apply for benefits (it isnt enough to go to the VA doc, the VA automatically assumes when you go to the VA doc you are seeking treatment, not benefits unless you write otherwise) and 3. The claim must "specify the benefit sought".

The VA has also done their very best to try to limit the application of Roberson, for example, in the application of CUE claims. CUE makes it clear that the Veteran no longer has the benefit of the doubt, which the Veteran "gives up" when he fails to appeal within 12 months.

While I agree that a strict reading of Roberson does not exclude CUE, in later cases CUE claims are specifically exempt from Roberson application until all claims are determined by VA.

In other words, the VA must give a sympathetic reading to determine all claims, but, if the Veteran does not timely appeal, the VA can give the sympathetic reading, and THEN the VA can apply the rigorous CUE standards and deny.

VA has a staff of hundreds of lawyers whose job it is to think of additional reasons to deny benefits on the appeal level. The VA sees no problem with paying lawyers 100,000 dollars to prevent paying the Veteran 1000 dollars, in part, because they know that 10,000 other Vets will read that case and try to get an extra 1000 also.

Edited October 11, 2013 by broncovet

[Philip Rogers]

To answer your question, the VA must rate any condition/disability that they find. They generally do this by rating any additional conditions as NSC. If they don't rate those conditions those conditions/claims remain open and would probably not be a CUE, as they remain open claims.

pr

[Bevo]

In the evidence previously discussed in my current appeal - VA records from the Dallas VAMC, there are two positive TBI screens (with memory loss, headaches, insomnia, irritability listed as symptoms). If they don't add that to my claim, I was thinking of filing for it. If I get it, I was hoping I could file a NOD on the effective date back to my original filing date for the spine injuries saying they should have added this.

Also, all my spine issues mention my arm going numb and following asleep but I just learned what radiculopathy is. I was considering filing for that and doing the same with that as well.

[Philip Rogers]

I would.

pr