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.

[Berta]

Brokensoldier said it all here-as to our DTA rights:

 "Duty to assist is 'assist' not to do it for you. "

We have the duty to assist ourselves-

There was limited info on the WWW when I and my husband were part of the Prodigy Veterans BBS.Circa early 1990s and before that we were on Vet Link- modem to modem- very costly-

A Prodigy member was Bill Smith, former BVA attorney-who shared his VA knowledge and also his encouragement to never give up.

Then at some point VA went on line, as well as the BVA and the CAVC-and the complete 38 USC and CFR, and well as M21-1MR.

 I feel Duty to infer has been explained here very well.It is a very limited regulation.

Hamslice said:

 " Do you think the VA is going to infer everything that is this guy could possibly get.  Fat chance"

He is right.

Knowledge is power as our Motto says-and that knowledge takes time and lots of reading and other legwork sometimes, but it all pays off. I think everything a vet needs to know is here at hadit.

Everything a survivor needs to know is here as well- but as I said before- if your spouse is not PC savvy, their claims after you pass, might well be doomed, unless they get lucky and get a real good VSO or vet rep----

and if they are PC savvy, they need to read the DIC and accrued info here-I cannot read it for them.

 

 I learned , because I had former vet reps who were dopes, that the best vet rep we will ever have is who we see in our bathroom mirror when we wake up.

 

 

 

 

 

 

[broncovet]

This pretty much happened to me.  I sent in the tdiu form several years later.  I eventualy won tdiu after fighting for 10 years or so.  And now, my attorney is arguing for an earlier effective date based upon the "reasonably raised" claim at least 2 years earlier.  

At the RO level...they follow pretty much none of the rules.

At the BVA level they follow some of the rules.  

At the CAVC level, they ensure strict adherence to the laws.  

[GeekySquid]

39 minutes ago, broncovet said:

This pretty much happened to me. 

this type thing sucks. As a Data Guy I heartily believe that the path to mitigation, or at least a significant decrease in this seemingly systemic problem, is found in the data. 'the first step is understanding the boundaries and triggers. Once those can be mapped and quantified then applying them to the existing data in the BVA and CAVC decisions will demonstrate probable paths to resolution.

complaining about something is fine to a point, I am seeking the info to see what solutions the data present.

[GeekySquid]

58 minutes ago, Berta said:

I feel Duty to infer has been explained here very well

please take a few minutes and point me to what you feel explains it well. I have not found anything yet that addresses the boundaries and triggers.

 

[Berta]

Many of us here have been about the VA block (of VA case law and regs)  for decades-

I only know of two reasons the VA will infer anything-

If a vet gets a 70% SC rating and VA knows he/she is unemployed they can infer TDIU potential by sending them a 21-8940- even if they dont know if the vet is employed they should still send the TDIU form, when the rating is 70% SC.

Also SMC is mandated by law and must be inferred for "consideration" whenever the established medical evidence presents a potential SMC scenario.

My SMC CUE here somewhere was based on VA's lack of consideration of SMC- thus they did not infer SMC or honor the mandate of SMC, yet the rating sheet I filed the CUE on clearly established my husband's entitlement to SMC.100% plus 60 ( as well as Housebound)

Both theories were awarded but only one retro SMC S payment.

Maybe if you put infer into the search feature at the BVA web site you might find another way they infer something-I never saw anything else inferred by VA.

 

 

Edited November 23, 2018 by Berta

[GeekySquid]

24 minutes ago, Berta said:

Maybe if you put infer into the search feature at the BVA web site you might find another way they infer something-I never saw anything else inferred by VA.

i have found some stuff there and at CAVC but the boundaries are not clear yet, which is why i asked the initial question.

If you don't mind a question expanding on what you wrote.

IF a veteran is rated at 70% and the VA rating letter does not include any verbiage concerning having inferred IU, with statements in the record about not being employeed, and in the C&P,  and  no 21-8940-  was sent, is the path to NOD this or just file the 21-8940- as a new claim? I keep reading that IU is no longer a stand alone claim so a NOD seems correct but I am unsure

/The reason I ask is what I keep reading in the blog posts here and elsewhere is phrasing like yours

29 minutes ago, Berta said:

they should still send the TDIU form, when the rating is 70% SC.

That word "should" as opposed to "mandated" or "must" inserts the very slippery wiggle room the VA seems to like to give itself.

To me this seems like a hard trigger at the 70% level and as I understand things, and of course I can be wrong, if the VA rater identifies an additional possible claim they are supposed to include that into the decision to let the vet know and if they file it triggers the duty to assist which in turn triggers an automatic request to SSA for the vets work history.

The MR21 has several seemingly contradictory instructions on the issue on when/if the 21-8940-  should be sent.

It would also seem that if that sequence happened and a vet later filed for IU after the initial decision was final, they would have a solid claim for an EED.

I appreciate your response