duty to infer Extent of Duty to Infer

[GeekySquid]

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.

[brokensoldier244th]

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 November 22, 2018 by brokensoldier244th

[GeekySquid]

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?

 

 

 

 

[brokensoldier244th]

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. 

[GeekySquid]

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.

[Buck52]

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 November 22, 2018 by Buck52

[brokensoldier244th]

I've addressed it you just don't like the answer. You want a hard line in the regulation that is governed by an interpretive process. There is a duty to assist, sometimes it's not, hence the appeal process. You want raters to seemingly  be perfect. They aren't.