Read Disability Claims Articles
View All Forums | Chats and Other Events | Donate | Blogs | New Users | Search | Rules
- 0
duty to infer Extent of Duty to Infer
Rate this question
Read Disability Claims Articles
View All Forums | Chats and Other Events | Donate | Blogs | New Users | Search | Rules
Rate this question
Question
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.
Link to comment
Share on other sites
Top Posters For This Question
9
4
4
3
Popular Days
Nov 22
11
Nov 23
10
Nov 24
3
Top Posters For This Question
GeekySquid 9 posts
brokensoldier244th 4 posts
Buck52 4 posts
Berta 3 posts
Popular Days
Nov 22 2018
11 posts
Nov 23 2018
10 posts
Nov 24 2018
3 posts
23 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now