Jump to content


  • veteranscrisisline-badge-chat-1.gif

  • Advertisemnt

  • Trouble Remembering? This helped me.

    I have memory problems and as some of you may know I highly recommend Evernote and have for years. Though I've found that writing helps me remember more. I ran across Tom's videos on youtube, I'm a bit geeky and I also use an IPad so if you take notes on your IPad or you are thinking of going paperless check it out. I'm really happy with it, I use it with a program called Noteshelf 2.

    Click here to purchase your digital journal. HadIt.com receives a commission on each purchase.

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • fundraising.jpegGive a financial gift to help with the upkeep of HadIt.com. HadIt.com is NOT a non profit. Gifts are not tax deductible, they are just gifts. 

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Our picks

    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
  • Advertisemnt

  • 0
Sign in to follow this  
GeekySquid

Extent of Duty to Infer

Question

I am just wondering to what extent does the VA's Duty to Infer reach?

I keep seeing it mentioned but I am not finding any particular bounding rules or interpretations, so any links or opinions would be great.

Take for example a post I read this morning. OP was initially rated as 70% PTSD and was not/had not been working. Said it was in his file. Asked if  VA should have inferred IU.

So what has to be in their file to trigger the Duty to Infer? Is simply stating they are unemployed enough to trigger the question? is a mention in their intake memo enough? from their Primary Care doc? Psychiatrist? does a discussion with the 1-800 number trigger this duty?

What if they are homeless or near to becoming homeless is that enough? Do they have to have an extensive statement saying they have not worked in two decades (or whatever) and don't think they ever will again?

Would the duty to infer by itself require the VA rating decision to mention IU or send the IU form with an explanation? For example my latest rating decision for SMC K include a statement that I might have a claim for Voiding Dysfunction and tells me to file a "new" claim if I want to explore being rated for it. To my mind this is a Duty to Infer action on the part of the Rater; taking that back to the 70% PTSD example should there also have been a statement inferring possible IU and the forms needed to process such  a claim?

What about something like sleep apnea? I know the rules have changed on needing a statement that CPAP is "Medically necessary" but what if under the old rules a sleep study is done, a cpap issued and following that a C&P finds the veteran to be Service Connected for PTSD and has Chronic Sleep issues? Should the rater 'infer' that C&P is in order, or does the veteran have to intuitively know (yeah right) that SA is a ratable condition and then has then file a new claim? what about under the new rules? how would a new veteran know that their sleep apnea might be a ratable condition if service connected? doesn't the VA have an obligation to tell us if some condition is potentially a ratable condition or secondary to a rated condition?

I cannot imagine it was the intention of Congress for Veterans to have to know things and rules they could not possibly be aware of before they file claims, particularly veterans new to the VA process. In that light it makes zero sense that legal requirements such as a Duty to Infer would/could be narrowly interpreted.

Any links, discussions, BVA or CAVC results, etc would be appreciated.

Share this post


Link to post
Share on other sites

Recommended Posts

  • 0

https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1958

 

though, as it says, if you think you have a rateable condition, file for it. At worst they deny it as a non-valid claim.  This is why a lot of vets use VSO's to help them file, so they don't have to know every nuance. Several others, over the years (myself included) have found that VSO's are overworked and most of the time its faster to build your own claim and submit it.. The resources are all available online, and prior ratings appeals are searchable online as well, along with the VA ratings claim rating manual and ratings criteria. It takes some work, but a well supported claim doesn't need very much. Many veterans file for anything they are being treated for, that usually covers most of the bases. Things like Housebound, IU, etc, shoudl be inferred by the rater, but you can always claim them on your own provided the criteria are met. 30 years or more ago I would agree with your statement that a veteran can't be an expert on their own claim, but with internet access almost ubiqitious and all the resources including filing being online, any vet with access to a library can build, research, and submit a claim online, and faster, than a VSO can. The best person to take responsibility for your claim is  yourself. 

Edited by brokensoldier244th

Share this post


Link to post
Share on other sites
  • 0
2 minutes ago, brokensoldier244th said:

30 years or more ago I would agree with your statement that a veteran can't be an expert on their own claim, but with internet access almost ubiqitious and all the resources including filing being online, any vet with access to a library can build, research, and submit a claim online, and faster, than a VSO can. 

thanks for the response and Happy Thanksgiving.

I am not sure I agree with the underlying sentiment in the bolded part. I am not arguing with you, just trying to find bounding lines that make sense.

If you don't know something how are you required/expected to ask about it or claim it? simply searching the phrase "i have sleep apnea" (without a history in your browser of lookin up VA issues) will only produce medical journals, cpap ads and blogs on snoring.

If you don't know something exists at all, how could/can you be expected to 'research' a topic you have never considered, heard about, or had exposure too?

I will take from my own life as example. My mother was one of the first 100 female surgeons commissioned by the U.S. Army post-WWII. She was a nurse in WWII.

I started working with computers and networks just after Aloha and if you know anything about computing that was a long time before "the internet" was even a concept.

My point being I have long personal exposure to both the VA and computing, yet nowhere in my experience did it ever occur to me that a condition such as PTSD could have a ratable connection to something known as IU. In fact at the start of my own VA journey I would never have guessed that something call IU existed.

That is the crux of my question. Not that there exists a ton of information on the various subjects, some of which is actually good info, some is equally bad info.

Is it not the intent of Congress that the Duty to Infer places an obligation to inform the veteran of the potential? and if so what level of information in your file is necessary to trigger that duty

 

IU is not something the average veteran would even think was a possible claim for any reason.

The same applies to Sleep Apnea. Who is the world intuitively knows that SA exists, much less is possibly service connected as a primary or secondary condition to a nexus event? What person makes the leap from snoring and chronic sleep problems related to PTSD might mean that SA is a potential secondary to PTSD?

Even your linked section of the law states the VA has the duty to review all the information in the files and infer things but it also says that the veteran should not 'rely' on this duty and instead make specific filings. It sidesteps any bounding rules on what should trigger a duty to infer.

Take the PTSD and IU inferrence

The MR-21 manual has a lot to say but it does not seem to be well known to the raters.

in particular


M21-1, Part III, Subpart iv, Chapter 6, Section B - Determining the Issues
M21-1, Part IV, Subpart ii, Chapter 2, Section F - Compensation Based on Individual Unemployability (IU)
    subsection IV.ii.2.F.2.k.  Identifying Reasonably Raised Claims of IU

Chapter 2, Section F also directs the rater to pull SSA records to verify work history IF the claimant has NOT provided enough work history to prove the IU.

They say that Inferred Claims are allowed by 38 CFR but not clearly defined/specified and that VA must liberally infer claims to favor the veteran.

So how does the veteran know all this? our VSO's don't seem to know it and the raters don't seem to apply it frequently, so how can the veteran be expected to know that they must make explicit statements and or formal claims to have an unknown condition be inferred?

 

 

 

 

Share this post


Link to post
Share on other sites
  • 0

on what basis do you say raters and VSO's don' t seem to know or apply this? they handle tens of thousands of claims a year that go through just fine. Basing the perception of the VA on the few cases that make it public or become vocal on the internet is 'correlation does not equal causation'. Im 42, and grew up before the internet, too, and have a degree in computer science. That doesn't mean im an expert on claims with the VA, but veterans that dont understand the internet or don't know how to use it are becoming frequently fewer and far between. As for a veteran 'not knowing' if an issue is claimable or not, I addressed that by saying that that many veterans file for whatever they are being treated for. Still, some responsibility falls on the veteran- if you want the rating, you have to take an active approach and file for it. The VA is not going to do everything for you, any more than your CO or S1 would. For example, if you search for 'veteran disabled unemployed' the first few things that pop up are filing for IU, straight from the VA website. Duty to assist is 'assist' not to do it for you. 

Share this post


Link to post
Share on other sites
  • 0
8 minutes ago, brokensoldier244th said:

on what basis do you say raters and VSO's don' t seem to know or apply this?

the shear number of claims at the BVA and CAVC related to TD/IU indicate that the raters are not consistently applying the rules across RO's.

The example asked about is a veteran with a 70% PTSD rating who is unemployed. When should the rater exercise the Duty to Infer and then follow those procedures. What we see in these forums is Vets getting rated and then going back to fight for what should possibly been Inferred in the first place. So my question remains at what level of information is the Duty to Infer triggered?

Informal claims by law and MR-21are raised by the mention of the potential associated claim in conjunction with a SC treatment event as well as when an increase is formally requested and a couple other ways. In these cases the vet is not required by law to initiate the process, though in all reality should as that link you provided suggests. The rater in these cases notifies the veteran of the additional information or actions needed.

So what triggers it besides your demand that vets should just know it and claim absolutely anything and everything possible.?

10 minutes ago, brokensoldier244th said:

Basing the perception of the VA on the few cases that make it public or become vocal on the internet is 'correlation does not equal causation'

neither is saying 'they do thousands of cases a year" make it a nullification of the reality that annually hundreds if not thousands of otherwise eligible claims are passed over / ignored because rater did not follow process. Claims an unsophisticated veteran may not know are possible or viable.

additionally your assumption that I based my opinion on a few vocal internet voices is dismissive, argumentative, inaccurate, and intentionally insulting on your part.

12 minutes ago, brokensoldier244th said:

but veterans that dont understand the internet or don't know how to use it are becoming frequently fewer and far between

People over the age of 50 are, according to the AARP and the Census, more than 1/3 rd of the U.S. Population. https://blog.aarp.org/2014/05/14/top-10-demographics-interests-facts-about-americans-age-50/

Those 50 and over, collectively, still have a limited set of skills in relation doing internet research. The accuracy of this is substantiated by numerous studies done by the Dept of Education as well as Dept of Labor. The list is to long for posting

17 minutes ago, brokensoldier244th said:

As for a veteran 'not knowing' if an issue is claimable or not, I addressed that by saying that that many veterans file for whatever they are being treated for.

you are arguing that because "some" people speak Chinese everyone else should be expected too. Not every veteran knows or is seeking compensation when they go for treatment for some issue. The VA doctors DON"T say, "you have Sleep Apnea and it might be compensable as SC"

Your statement here assumes that every veteran is engaged in or should be engaged in throwing spaghetti at the wall to see if it sticks. It is an attempt to avoid answering the question posed.

21 minutes ago, brokensoldier244th said:

Still, some responsibility falls on the veteran- if you want the rating, you have to take an active approach and file for it.

no one is arguing the contrary.

Trying to hide behind this is avoiding the question asked and amounts to demanding people should not look behind the curtain. That they should ignore the real question of what the Duty to Infer and the Duty to Assist actually mean in the supposedly non-adversarial VA process which includes a legal mandate to maximize the benefits a veteran is eligible to receive.

if you don't want to actually address the question asked, that is fine, but arguing a non-asked position is ineffective and inappropriate. It would be nifty if all veterans were as perfect as your statements imply you (believe your) positions and  knowledge of the VA process are, but that is not reality.

my initial questions remain, what levels of information trigger the Duty to Infer.

Share this post


Link to post
Share on other sites
  • 0

Interesting subject

To get an answer on this it will take a lot of reading to understand how they apply this 

it can be found in the M-21 1. iii_iv 5

Chapter 5 Evaluating Evidence and Making a Decision, the raters use this Manuel because its so complicated in different claims and different unusual circumstances .

  read 1 though 10 in the M-21 1.iii_iv5 Manuel

If the Veteran or his service rep can find these regulation then they can appy them to his claim...because not all raters will read. so when the veteran gives out this info  to the rater their bound by that , other wise they could lose their job because they are not doing the job they were actually trained to do..

jmo

Edited by Buck52

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this  

  • Similar Content

    • By Wise Guy
      I was diagnosed with Sleep Apnea through the VA. I filed for compensation so I already know it’s going to get denied. After it’s denied, I need to know exactly how to do the supplemental claim for it. I’m already getting benefits for Insomnia which the underlining is Depression and Anxiety. So after the Sleep Apnea is denied, do I just make an appointment with my Sleep Apnea doctor and say, “Hello sir I’m just curious. I’ve been diagnosed with Insomnia which the underlining factors are depression and anxiety. Can you tell me what caused my Sleep Apnea?” Then hopefully he’ll say depression can cause it, Then I’ll say, ok I’ll go with that. Depression caused my Sleep Apnea. Thank you so much sir that’s all I needed.
      Everything that is said is recorded in my record anyway. Then from there I’ll file a supplemental claim and say the Sleep Apnea was caused from my depression. Right or is there another way?
    • By RF-4Cmike
      My appeal for PTSD was "Remanded".
    • By Johnny Adams
      Good Morning,
      I have a few questions about SMC.  I currently receive SMC S, for I have 70% PTSD and have 50% for Sleep Apnia, 40% for Fybromyalgia, 30% Migranes, 20% for Cervical Spine, and 10% for TBI and a host of about 9 other things all listed at the 10% Disability rating.  Would they just look at new A/A that I just submitted or would they pyramid me to the SMC t?  this is so confusing.  Thanks for any help.
    • By Jash
      I’ve done the VA claim-bit on my own. I don’t  know if this is a mistake or not. 
      I went to a c&p exam recently. I left somewhat confused. I never had a doctor tell me directly that she was recommending an increase as well as IU. She said though it was ultimately up to the rater. I don’t have her report because 30 days has not passed. I was at 50% for ptsd and 10% hearing loss. During the appointment the c&p doctor quoted a couple other reports where VA doctors I’ve seen at various clinics said that I had “long term, chronic and severe...” (Don’t want to get into the what). I find myself now obsessing if: 
      1. The c&p dr was lying to about her recommendations; 
      2. The c&p dr was telling the truth about the recommendations;
      3. The rater will decrease my %
      4. The rater will increase my%
      Ultimately it boils down to: How much weight does the rater put into the C&P dr recommendations? Could I really get IU if that dr did actually recommend it? what are the chances?  The IU could help a lot, I’ve not been able to work much the past few years. 
    • By Willy P
      Good Afternoon Team,
      Short back story/timeline:
      Left Active Duty: August 2015 Diagnosed with Sleep Apnea February 2016 (6 months later) Submitted claim in May 2016 with my evidence:  Sleep study DBQ In service complaint of snoring exerpt from my medical record Favorable C&P Exam opinion (at least as likely as not...) VA Denied my claim in August 2016 I did nothing because I didn't think I could come up with any other evidence Fast forward to last year.....
      I scratched some pennies together and paid for an IMO, then submitted the letter via a supplemental claim.  I was awarded SC for sleep apnea at 50% within a month of the VA receiving my claim.  Success!  Here is the link to that process in the research forum: 
       
      So here is my line of thought...
      Can I use HLR to fight for an earlier effective date, or do I have to use CUE?  I mean, the VA had everything it needed to make the proper rating the first time (In-service event, nexus from the C&P doc, current diagnosis...).  I have a hard time with the fact that I had to pay an outside doctor just to agree with the C&P exam doctor.  Why would the rater place his/her opinion over the VA's own doctor?  Shouldn't the benefit of the doubt have gone to me?  From what I understand, I can't CUE the benefit of the doubt anyway.
      Since I am within the appeals period of the supplemental claim, I'm thinking the easiest path may be to request HLR in order to ask them to CUE themselves on the 2016 decision.  Is that possible?  I'm just trying to avoid CUE if I can, since it's mainly a "last resort" type of measure.
  • Ads

  • Our picks

    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
×
×
  • Create New...

Important Information

{terms] and Guidelines