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.

[GeekySquid]

23 minutes ago, Buck52 said:

If the Veteran or his service rep can find these regulation then they can appy them to his claim.

thanks buck that is one of the links i was looking for. I am also looking at several others in relation to reopening a claim, duty to assist and failure to properly notify.

Without a doubt I know the VA is not logical in many ways and that things are often overlooked and or ignored.

So the example I posted originally concerning the 70% PTSD veteran asking about the Duty to Infer in relation to IU gets followed up by how does the veteran know that Duty has been acted on?

In relation to that 38 CFR 4.16 Total disability ratings for compensation based on unemployability of the individual.

https://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=38:1.0.1.1.5#se38.1.4_116

has only two criteria for it to trigger, a single rating 60% or higher or multiple ratings at 70% or higher.

the example veteran under 4.16 should have been considered for IU, but if their rating letter /packet is silent on that issue what is the veteran supposed to do/know if they know nothing about VA process? Congress could not possible expect a Veteran to know what the VA is supposed to do when the VA itself doesn't always do what it is supposed to do.

This is similar to the Duty to Infer, Duty to Assist and Obligation to Notify.....how is the veteran supposed to know those things "happened" or "should have happened" when the decision letter and packet don't mention them at all?

It really has my curiosity going.

[GeekySquid]

27 minutes ago, brokensoldier244th said:

I've addressed it you just don't like the answer

no you tapped danced around the question and made pronouncements on unasked issues.

your statements amount to non-answers that contain insulting and dismissive language based on your ego and self-perceived abilities. You literally demean other veterans who you don't seem to think are as smart as you or tech savvy as you.

29 minutes ago, brokensoldier244th said:

There is a duty to assist, sometimes it's not

this is a non-sequitur. There is always a duty to assist, the question is what are the boundaries, regulations and practical aspects. 

 

31 minutes ago, brokensoldier244th said:

You want raters to seemingly  be perfect. They aren't.

no I want to know what the boundaries are, what triggers different actions that I asked about.

For example in the scenario of the 70% PTSD veteran. Did the VA apply section 4.16 and decide it was not appropriate? is so don't they need to inform the veteran of this in the decision letter and afford them they opportunity to NOD?

Same with Duty to Infer? if they applied shouldn't they be notifying the vet even if the decision was not in the veterans favor? not doing so deprives the veteran of necessary information to act on in the appropriate time frame.

The VA has a legal obligation to notify the veteran of possible claims and the actions taken or necessary to take, yet when the decision letter is silent on an issue how can the veteran be expected to know it was possible?

your demands about the internet and how old, unsophisticated veterans are dying off are both insulting and demeaning. Your words sound like the prototypical and stereotypical millennial who is only interested in their own opinion and is willing to dismiss everyone else as less than they are or as just plain stupid.

So take a moment and consider how you speak to people.

What you presented here is less than a good example of adult behavior. It more belongs on a reddit channel.

[brokensoldier244th]

It's okay. Lecturing me like you are my dad speaks some to your attitude as well, and inferring things I did not say like veterans 'dying off' is just as insulting. You aren't going to get your perfect answer and you aren't privy to every veterans case. You are tilting at windmills. All this thread is going to cause is a bunch of unecessary and unproductive complaining. I'm sorry if I worked on my own case with little assistance and I'm sorry that I got out in 2002 knowing that if I wanted benefits I should probably familiarize myself with the process, which is openly available to veterans. It sucks that it wasn't always so but it is now.  Asking people here that aren't raters how the process works would be better time spent maybe talking to an actual rater. We won't know anymore than you will about it, and in any case it's still an imperfect process and sometimes isn't followed. There is your answer.

 

Happy Thanksgiving to you. 

Edited November 22, 2018 by brokensoldier244th

[GeekySquid]

2 hours 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.

you complain about the phrase "dying off", it is a rehash of your above statement.

your snotty tone and whining about being told you are not speaking or acting like an adult definitely requires someone to talk you like they are your dad.

 

as for": You aren't going to get your perfect answer and you aren't privy to every veterans case. "  I never claimed i wanted one or that I knew every veterans case. you however made it a point to complain that VA does thousands of cases a year. I pointed out that hundreds if not thousands of errors are made every year. You seem to think that since you are (apparently) self-satisfied with your outcomes that every other veteran has no business expecting the VA to make fewer mistakes.

 

" All this thread is going to cause is a bunch of unecessary and unproductive complaining " you are the one taking it off the targeted question and the one complaining that others are not as proficient as you are. Had you actually answered the question posed none of these exchanges would have happened, yet you are now stomping your foot and trying to refuse responsibility for what you call "unecessary (sic) an unproductive complaining. In other words stop making unnecessary comments and complaints.

" I'm sorry if I worked on my own case ...." another snide and immature comment. completely unnecessary.

I highly suggest you consider how you speak to people. you are displaying intent to insult and demean. You are literally acting like a snotty child.

If you don't want to be called out for your bad behavior and insulting speech then I suggest you refrain from both.

 

 

[vetquest]

Guys, can we just back off a little and agree that we are approaching an issue from two differing understandings.  

I got out in 1986 and if you guys know computers you will realize that the internet did not exist in a form most people could use or understand.  I was trained in computers (mainframes, yes I am a dinosaur) but even with the internet coming to life I could not access the information available to people today.  Back then we were at the mercy of our VSO's and raters.  We had the BVA but it was still a long process even back then.  Now we have computer savvy users that can work their own cases but there is also a lot of the duty to assist that is overlooked by the RO's.

This forum exists to assist others that need help and guidance.  At least agree to disagree and get along?

[Carl the Engineer]

Well let me just say this.

I know of one Vietnam Veteran (Marine, boots on ground) that has a whole bunch of health conditions, some of which are slam dunks regards agent orange, etc.  Diabetes, etc.  Has never been to the VA.  Didn't know he could go.  No kidding.  His wife made him go to a CVSO community meeting 3 months ago so she could find out what is available for her when he dies.  LOL.  Nothing right now, except the $200 +/- burial stipend.  Boy do they have a bunch of things to get done with the VA in a hurry.  Do you think the VA is going to infer everything that is this guy could possibly get.  Fat chance.  

The CVSO and I talked afterwards that there walked out about $500,000.00 the VA saved over the years.

And, there are hundreds more like that.

Duty to assist, to infer,  is just that.  Good for you if you can hold their feet to the fire, but they usually wiggle out.

So, there is a lot the VA will not do on its own.

All my claims have been simple and straight forward.  I have not fought the battles many of you have.  I do appreciate your efforts and I do like to read your war stories with the VA. 

Just keep it civil.  Don't stop the learning.

Hamslice