Has C&P ever resulted in s/c contentions not filed for?

[Navy4life]

I am curious if this has happened to anyone?  Has anyone ever gone for a C&P exam for a specific claim and been awarded additional s/c for other contentions not filed for?  The reason I ask this, is b/c my exam yesterday for increase to my L ankle, the doctor made a lot of notes to include measurements of my scars (not requested) as well as other notes regarding my foot and toe and my other foot (which is in appeal status).

Thoughts?

[Gastone]

Actually the C & P Dr said he couldn't opine on the VA Raters requested DBQ about anything other than what was requested on the 2014 FDC. On that DBQ he stated there was no evidence that my claimed secondary issue was related to the stated SC.

It wasn't until I told him that I agreed with him regarding his findings and had actually filed another FDC with the SA as the causative SC. At that point we had a "GOOD" discussion and he completed the DBQ.

The Award of the 2015 FDC listed his DBQ as Evidence considered in making the award. I received (2) separate VA Letters Denying the 14 FDC and Awarding the 15 FDC. arrived within a week of each other.

Keep in mind, I already had a recent 2014 DX of the Secondary issue, I was just wrong regarding which of my SC's it should have been attributed in the nexus. I believe the (2) FDC's were reviewed by the same Rater, even though I received the (2) Award/Denial Letters. The award of the Secondary issue was listed as SC Secondary to SA at 0%. I was in the process of NODing this award when I received (01/03/16) E-Ben notification that my SA had been bumped from 50 to 100%, due to the Secondary SC as of 07/15. Still haven't received the actual Award Letter. Retro's been banked and New Comp including SMC S (1) started 02/16.

Semper Fi

[Vync]

13 hours ago, Navy4life said:

Vync;

Yes this is exactly what I am talking about the M21-1 Duty To Consider.  The VA is bound to consider the contentions that arise during an examination, with the exception of the four items listed.  Does the Rater/VA complete the VA21-6796?  Are they bound to do so?  In this slide presentation, it specifically states the RVSR must recognize, develop, clarify and/or decide all issues and claims.  So if for example, on my C&P exam if it shows XYZ should also be rated, then the RVSR is bound to do so correct? That is what it sounds like to me.

I wonder how many Veterans have missed out b/c of something like this?  How many Vet's went in for a C&P for what they thought was for the contention they filed a claim on and actually there where other contentions they should be compensated for yet they weren't b/c of an oversight????? mind blowing!  

Navy,
I don't know who is supposed to fill out the VA 21-6796.

Regarding "recognize, develop, clarify, and/or decide all issues and claims", I personally feel many RSVRs are so conditioned to look at for certain fields in C&P/DBQ results that they often overlook potential additional or secondary disabilities.

Personally, I do believe the RSVR was bound to explore potential additional or secondary disabilities.

You filed a FDC, but this might be interesting. In the late 90's, the BVA remanded my appeal and gave very specific instructions. You'll notice this sound an awful lot like the info in the slides.

DO A GENERAL MEDICAL TO DETERMINE THE NATURE AND EXTENT OF ALL OTHER ALLEGED DISABILITIES. THE EXAMINATION SHOULD INCLUDE AN EVALUATION OF, BUT NOT LIMITED TO, THE ABOVE MENTIONED DISABILITIES. ALL APPROPRIATE TESTS AND STUDIES SHOULD BE PERFORMED. THE EXAMINER SHOULD BE REQUESTED TO ASSESS ANY AND ALL DISABILITIES PRESENT AND RENDER AN OPINION AS TO WHETHER THEY ARE ETIOLOGY RELATED TO SERVICE. A COMPLETE RATIONALE FOR ANY OPINIONS EXPRESSED SHOULD BE PROVIDED. THE CLAIMS FOLDER SHOULD BE PROVIDED TO THE EXAMINER IN CONJUNCTION WITH THE EXAM. PROVIDE ROM STUDIES, X-RAY REPORTS AND STATEMENT OF FUNCTIONAL LOSS DUE TO PAIN FOR ALL AFFECTED JOINTS.

Looking back at those C&P exams, sure enough, the examiners diagnosed additional disabilities, but they were never developed by either the examiner, the RSVR, or the BVA.

This is a slightly different situation covered by Stegall v. West, 11 Vet.App. 268 (1998) which involved failure to fully follow remand instructions.

This is just more proof that these kind of violations have been happening for a really long time.
 

[Vync]

Harris v. Shinseki, docket no. 2012-7111 (Fed. Cir. Jan. 4, 2013) overturned the VA's long practice of deeming "No evidence is negative evidence" per the slideshow I linked earlier, which ties back to your original question.

Here is a synopsis:

This case affirms the Federal Circuit’s case law regarding VA’s duty to fully develop and generously construe a pro se veteran’s filings to determine all possible claims raised by the evidence. In this case, the veteran had applied for and was awarded service-connection benefits in 2002. He appealed, arguing for an earlier effective date based a 1985 VA medical examination that included an Agent Orange Registry Code Sheet and an application for medical benefits. The Board held that the 1985 exam was neither a formal nor informal claim for benefits, and denied the appeal. The CAVC affirmed the Board’s decision, finding no clear error in the determination that the 1985 documents did not constitute a claim.
The Federal Circuit found that the CAVC did not apply the proper legal standard in reviewing the Board’s decision because there was no indication that the court “acknowledged its obligation to require that the Board generously construe the evidence in this case.” The Federal Circuit acknowledged that the Board “‘considered the applicability of the benefit-of-the-doubt doctrine,’” but noted that the duty to fully and sympathetically develop a veteran’s claim is separate from that doctrine. The duty to fully and sympathetically develop a veteran’s claim to its optimum is placed on VA prior to adjudicating the claim on the merits, whereas “the benefit-of-the-doubt rule assists the VA in deciding a veteran’s claim on the merits after the claim has been fully developed.”

 

But add this in...

The CAVC has stated that an informal claim for VA benefits requires:

1. An intent to apply for benefits,
2. An identification of the benefits sought, and
3. A communication in writing.

- Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009);
- See also 38 C.F.R. § 3.155(a) (stating that an informal claim must “identify the benefit sought”).

- CAVC, quoting its decision in Brokowski, went on to state that “[A] claimant's identification of the benefit sought does not require any technical precision.”

- CAVC stated that a claimant sufficiently identifies the benefit sought “by referring to a body part or system that is disabled or by describing symptoms of the disability.”

A claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability." Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009).

However,  #3 "a communication in writing" completely contradicts § 3.155 Informal claims "(a) Any communication or action..."

[Navy4life]

I am so glad I started this thread! Wealth of information for not only myself but I believe other Vets'.  I have no idea what is in my C&P exam from the L ankle increase but I will find out in the next week or two. I have very good "friend" that works for the VA and she is going to be able to see the C&P exams and let me know.  I am sure they are favorable BUT not getting my hopes up b/c even if they are favorable and have other contentions to S/C, you know how the rater's are and I don't count on anything until I see the BBE!

Fingers crossed!

[Chuck75]

I'll say that my past experience with the VA concerning secondary conditions resulted in separate claim filings after the VA failed to consider items of record, and the RO's issued very limited C&P requests. The DBQ's supposedly added stuff that was intended to cause such conditions to be explored. Unfortunately, that can easily take more time than the that allotted for the exam. 

 

[gs106]

Navy4life, I don't know if this is applicable to what you asked but thought I'd post it.  It is from M21-1 and the effective date is recent.

IV.ii.2.A.1.b.  The Mere Existence of Medical Records Does Not Constitute a Claim

The mere existence of medical records does not constitute a claim.  There must be some intent by the claimant to apply for a benefit. Notes:  Claims for an increased rating were previously an exception to that rule under the historical provisions of 38 CFR 3.157(b). The Standard Claims and Appeals Form regulation eliminated section3.157 and requires submission of claims on prescribed forms effective March 24, 2015.