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]

Perhaps you  should read the TDIU regulations in this recent BVA decision very carefully:

https://www.va.gov/vetapp18/files8/18125885.txt

My husband was 30% SC when he died. He had filed for TDIU because he was awarded SSDI solely for PTSD.

The VA claimed they could not get his SSA records in his lifetme- it was a lie- they had failed to request them and his authorization form was in his C file.

He died before the claim was awarded. Had he been alive they would have probably awarded the TDIU but they can't award that to a dead vet so they awarded 100% P & T SC PTSD.

SSA used all of his VA medical records to determine the SSDI award.

Many years ago a vet I helped win after almost  a decade 100% P & T-had a vet frend with a SSDI award for PTSD.

No rating at all from VA.

I told him the vet needed to apply for TDIU- and make sure he sent them an authorization form as well as copy of his SSDI award letter. And copies of any private medical records- if he was not in the VA health care system yet. I forget what they awarded -either TDIU or 100%- this was the fastest award I had ever seen  at that point- years ago. It took 4 months.

It is established medical evidence that determines TDIU.Whether that comes from solely VA records or from an IMO/IME, or Voc Rehab records, or  SSDI awards for the same disability.

If the medical evidence fits into the TDIU criteria ( 4.16 A, B in the link) then it would be a CUE if VA failed to infer TDIU and send the 21-8940.

 

 

[Buck52]

The way they did my claim for SMC S  House Bound

I was IU 90%COMBINED  but could not work due to myS.C. Disability on my original claim  it was S.C. 90% combined rating and was awarded the TDIU  With P&T, No future exams scheduled and disability was not expected to improve in my life time...

For IU they used the 4.16 (b) to inferr the IU..  so in the view of the VA  an IU Award is equal to the 100%  but the Veteran is not actually 100%  but due to the rating criteria  if the Veteran meets the SMC Criteria  then its mandatory they use the SMC Special rating table to infer the proper rating Criteria that meets the Special rating table scale.

OK  with me At a later date I filed a new claim for PTSD and was given a 70% rating...the raters are suppose to look at the severity and percent of the  S.C.70% separate & distinct disability and what my current rating is,  and when a Veteran is rated 100%  or TDIU P&T Then the raters use a special rating table for SMC to see if the Veteran meets the SMC  Rating criteria 

I am not sure a Veteran needs a 100% rating or be IU W/P&T  or not ? to be eligible for the SMC  Rating Criteria?  I can't find these Regulations?but I think he has to be either 100% or on TDIU W/P&T  but I am not 100% sure on this  because SMC is totally different than what we are rared by a %  Its the severity of the disability and how bad the Veteran overall health is?   basically this is why they have the SMC letters to Identify the servility of the disability.

SMC is quite complicated process  even for the experienced raters.

JMO

[vetquest]

My understanding, if SMC for IU is that if the IU condition is considered serious enough to prevent you from working and there is another condition over 60% than they do it the same as a 100% rating.  This is how I am P&T at 100% but drawing SMC for IU.  My situation is really confusing, my PTSD was declared serious enough to have IU and my neuropathy is at 80% so I have SMC and am also 100% P&T and IU.  Figure out that one.

Edited November 24, 2018 by vetquest

[Buck52]

GeekySquid Quoted

''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?.

GeekySquid maybe this will help break it down...the question you are asking is in the Regulations but its in different parts of the CFR'S making it hard for us to gather all these Regs to put on here for you to understand.

IF A Veteran is rated IU OR 100% And files for another disability  and is Service Connected for it...it is a separate and distinct disability, this new disability has to be rated at least 60%..so with what the Veteran is already rated for 100% or IU   this new S.C. Disability is separate from his original disability.

so now this changes the way a Veteran is rated...the rater us suppose to look at all this and rate the Veteran to the highest  rating that his disability meets with the rating criteria allowed by law  and when this happens its a mandated rating the Veteran be given the correct SMC .

so in short a 100% veteran or a veteran getting IU and being paid at the 100% level   ...he needs a separate and distinct S.C.Disability rated at least 60% to meet the criteria for the SMC H.B.

The Rater is suppose to look at all of this when he rates Any Veteran. and infers the correct SMC Rating if the Veteran meets the criteria above.

if they don't the Veteran needs to Appeal it.

Ms berta and other members have tried to show you how and why they inferr these type claims.

  Maybe Alex Graham ( Asknod)  can break it down better than we can....   and he can give the correct CFR's # Your wanting for the VA Raters to use the   ''Duty to Infer''   Regulation your wanting to read.  

SMC Rating Criteria is a complicated mess...

Alex has the SMC broken down by illustration example  by using Mr Patato Head  as an Example...check out his web site at 

asknod.org

Edited November 24, 2018 by Buck52

[Buck52]

It has been mention here many times  that when a Veteran is Awarded TDIU combined rating  or is given the full 100%  depending on the disability and the severity of it determines the '' Duty to Infer''  a SMC benefit AT THE TIME OF THE RATING

some say when a Veteran is Awarded TDIU P&T the rater is required to have inferred the SMC S H.B. because he can't leave home for work  b/c of his sc disability's

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014868/Howell-

I never was inferred this in 2002 when I got the TDIU P&T. But this came out after I was awarded the TDIU? 2008

Bradley vs Peake

https://ptsdlawyers.com/blog/bradley-v-peake-housebound-rate-160-percent/

Edited November 24, 2018 by Buck52