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Scope of Duty to Assist, Notify, Infer (issue in scope)

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GeekySquid

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Hi all.

I need help understanding the application of Duty to Assist, Duty to Notify and Duty to Infer (an Issue in Scope) as it pertains to my claims.

I will ask what I think is the easy one first.

In 2012 I put in for PTSD, Tinnitus, and Hearing Loss. In 2013 Granted 70% PTSD, 10% Tinnitus, Denied Hearing Loss SC but that it does exist (no percent of loss given). The decision letter and the letter with all the reasoning's (which I think is properly called the SOC?) stated my full period of service. It listed all my enlistments (this is significant).

VSO was dealing with advanced Pancreatic Cancer when my decision was made. no help there.

I knew nothing about C-Files, NOD's or getting my DBQ;s. Just expected to trust VA (my bad, I know).

In 2018 I got notice of a  Review of PTSD claim C&P  and it freaked me out, so before I had to go I started research and found Hadit.

I ordered C-file and Got it.

Had C&P and before results of C&P my c-file arrived and I found issues that the VA did not even tell me about or mention in my 2013 claim that they, VAMC, had uncovered and related to evidence in my Military STR;s.

Found the Audiology DBQ from C&P. Dr. stated she had reviewed my full file then proceeded to state she only looked at my first 4 years in service. In that period she found NO OSHA STS for my hearing and did not mention that my job was associated with hearing loss (though for tinnitus she did). She stated that I did have hearing loss for VA rating but could not Service Connect.

In 2018 I filed to reopen and included evidence from the C-file that she (the audiologist) said she had not reviewed. They rejected Reopening because the information was not "new and material."

Another factor after that is I was deferred on a Vertigo claim (which was also not mentioned in the 2013 decision but I think should have been inferred as an Issue in Scope). When that claim came in the VA SC'd my Hearing Loss but only to the 2018 date. This claim rated me at 30%, yet the evidence developed by VA shows closer to 100%. Along with that Hearing loss and Tinnitus coupled to Vertigo should be rated as Meniere's disease according to the MR21-1.

So what I need to know is :

Under Duty to Assist the VA is supposed to help me with exams etc to develop my claim. If the C&P doctor ignores evidence (like dates and nexus) that demonstrates SC, are they violating Duty to Assist?

Under Duty to Notify the VA is supposed to tell me what evidence is missing that would get me rated. In this case all the letters included my full service years. Yet under the Audiology section they DID NOT specify the dates she looked at. This leads the uniformed reader (me at that time) to assume she looked at everything. She gave all the numbers and readings and said I had a hearing loss for VA rating purposes but she could not SC based on not reading anything in my file (or at least the part she read) that was not noted as limiting in the decision letter. Did they Violate Duty to Notify?

Under Duty to Infer an Issue in Scope. On the issue of Vertigo this came up by the VA doctors and is supported in my intake statement which service connected my PTSD. The VA sent me for a VNG to test for Nystagmus and an MRI that came up showing I have a partially empty sella, which controls the pituitary gland, hormones and is medically tied to issues with Vertigo, tinnitus, and hearing loss. The 2013 decisions are silent on these results. In the deferred 2018 decision where they SC'd hearing loss, they also rated me 30% for Vertigo.  Did they violate Duty to Infer an Issue in Scope? Assist? Notify?

If as I think they did violate any or all of those, what is my path? CUE? NOD?

I know under AMA that I would have to file a supplemental claim to reopen with new and material (relevant?) evidence. Does this fit that standard?

 

attached are the two sections denying hearing loss SCredacted 2013 decision denying SC..pdfredacted 2013 decision denying SC..pdfredacted 2013 decision denying SC..pdf

redacted 2018 denial to reopen hearing loss.pdf

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I tried to open your files and wasnt able to, however:

1.  A failure in DTA (duty to assist) is not CUE.  A cue error must be "outcome determinative" and DTA is not that.  If they forget to dot an i, this does not mean its "outcome determinative" and you should be awarded benefits.  

2.  This said, you can "appeal" on failure to DTA, however, the idea is to win more benefits, not complain that VA raters did not do their job (likely) if you are within one year of a VARO decision.  

 

      To file a nod, file it on the applicable nod form.  Have your decision "in hand" and try to refute what the reasons the decision maker stated.  

       There are specific condtions when VA is required to 'infer" a claim, that is (it has to be a claim for increase, an initial claim can not be inferred, you must file a formal claim) as follows:

         A doctor visit can be an informal claim provided that:

1.  The informal claim be "in writing". 

2.  The Veteran must "show an intent to apply for one or more benefits".

and

3. The Veteran must specify the benefit sought.  

    Now, notice, there is a change of rules, here.  It used to be you could file an informal claim "on a napkin", but now a Veteran is required to file a claim on the applicable form.  

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6 minutes ago, broncovet said:

I tried to open your files and wasnt able to, however:

@broncovet

thanks for the response.

I wonder why you can't open them. If others have that problem I will make new copies.

1) in the case of my NOT being rated SC for Hearing loss based on the rater NOT using my entire file, it is outcome determinative. The file clearly showed the OSHA STS and the hearing results were marked, in service, as a 20 DB or greater hearing loss. These occurred in the part of the file she did not look at.

I am not arguing, but not looking at all the evidence in the file seems to be outcome determinative.

2) as I indicated this is kinda complex. The SC for hearing loss at the EED will support my claim that they did not address my Vertigo properly even though the VA had the files and test results. An EED on a 30% differential is a decent chunk of change after 6 years.

 

The challenge I am facing is the VA had all these records but failed to associate them to my 2013 claim even though my claim is what caused these tests to be given.

thanks for your input.

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If you read about CUE, you will find that failure in DTA is not cue.  It ALSO has to be outcome determinative.  Notification errors apply after you have been awarded benefits, and dispute the effective date.  

Example:

    When you get a decision, VA is supposed to notify you of your appeal rights.  If they did not notify you of appeal rights, then it can toll the decision date, enabling you to appeal beyond the one year appeal period.  In other words the one year appeal period does not start until you are "notified" of your appeal rights.  

     Now, the VA does not have to "notify" you that you are eligible for benefits you have not yet applied for.    The burden is on you to apply..its not the VA's fault you did not apply for whatever reason.  The vA is not require to "go on a fishing exhibition" to search your records for conditions to which you may be eligible for benefits.  Instead, you must "specify the benefit sought" and apply for benefits.  

    If you go to a VA doc, the VA "assumes" you are seeking TREATMENT, not benefits, UNLESS you tell them otherwise.  

    Let me see if I can explain it another way.  You must meet the caluza elements in order to be SC.  After you demostrate you meet the caluza elements, the VA should assign a disability percentage.  Lastly, they figure an effective date.  

    If you dont meet the caluza elements, no amount of VA's failure to notify will mean you get benefits.  You simply dont meet the criteria, and VA's failure to dta or notify is irrelevant.  

    You do have a point, however, about inferred claims.  Now, this is all about effective date.  If VA awarded OSA for 50 percent with an effective date of june 2, 2018, and you can show that you applied in 2014 AND met the criteria at that time, then you can appeal the effective date.  

    But dont get the cart before the horse.  The effective date is irrelevant if you have not been sc for an issue.  

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9 minutes ago, broncovet said:

But dont get the cart before the horse.  The effective date is irrelevant if you have not been sc for an issue.   

1) I now have the SC connection as of 2019 award.

2) The failure to use the records in their possession at the time of the original claim is what is confusing to me.

3) The Audiologist explicitly said she reviewed records from the first 4 years of my service, and none of the other years I served. 

4) The VA award letters explicitly state my complete service periods.

5) No one caught or mentioned in the letters that the Audiologist only used my first 4 years of service.

6) In addition the MR21-1 says that the VA is obligated to deal with Issues in Scope of a claimed harmed and they did not do that despite developing medical evidence of two other conditions.

That is some type of legal error that has a determinative outcome. using the wrong dates the Audiologist caused me to lose service connection for almost 7 years. It also caused them to ignore my Vertigo which has in service connection and documentation but was not explicitly claimed.

This seems to either be CUE or New and Material. The mistake is indisputable and cannot just be ignored by the VA.

I just want to follow the most effective path to getting that EED and this situation is weird when you look at the sequence.

2019 Granted SC on issue

2018 denied reopening 2013 issue

2013 had records but did not look at them. explicitly states they did not look at them in DBQ for C&P. Decision letter says ALL STRs and Medical records reviewed. No one caught that the Audiologist only looked at my first enlistment period.

example: If the C&P says "I reviewed service records from 1/1/1970 to 1/1/1974" and ignores service records from 1/2/1974 to 1/1/1990 then they have NOT looked at all the relevant evidence.

This is what happened and it is written just that way. Then whomever wrote the letter wrote plain as day "served from 1/1/1970 to 1/1/1990" followed by the awards and denials.

 

 

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Ok, so if you have a 2019 decision, and you disagree, appeal it by filing a nod on the applicable form.  You can appeal a disability percentage, a denial, or effective date(s).  Again, a failure by va in dta is not cue.  

If there was error in the decisions, then bring that issue out in your appeal.  If non compliance with regulations resulted in an incorrect effective date, appeal that also.  

If you met the criteria on an earlier date, then appeal the effective date.  

You do have a period where you can dispute the c and p exam.  Its probably too late, however, to dispute a 2013 c and p exam, however, unless this was the bases of the 2019 award.  

When we do pay for an imo, the va will require that our medical professional state he reviewed the records.  However, when VA hires a c and p examiner, that exam is presumed to be valid absent a challenge from you or your representative.  You could have been given an exam by a janitor, still, if you dont dispute it, its presumed valid.  

Let me explain it another way:  VA is not perfect.  They make errors.  If an error they made results in a lower benefit, or an inferior effective date, appeal.  

Yes, you can cite 38 cfr 3.156 b or 3.156 c in your appeal if you are submitting new and relevant evidence.  If the VA fails to reopend due to n and relevant evidence, then that, too, is an appealable issue.  

But, I dont recommend filing cue based on va's failure to dta, that dog wont hunt.  

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Ms Berta posted this

I mentioned this before but just to clarify.....

If you find that VA has ignored your probative evidence, that is a violation of 38 CFR 4.6.

If they send you a 5103 waiver and you again list and enclose the evidence with the 5103 waiver,because you probably sent it in with your claim anyhow but just in case, and even if a RO employee verifies that have that evidence,  and yet they still ignore it, that is a CUE, under 38 CFR 4.6.

You cannot file CUE on the actual Duty to Assist policy.You can file CUE on their Violation of that policy,if you can apply 38 CFR 4.6 to your CUE.

I just filed 4 CUEs with the Director via email. And am still awaiting IRIS complaint response on the whereabouts of my timely I-9....a separate issue.

I cannot file the Motion to Advance on the BVA Docket until they find my timely filed appeal and reinstate it.

CUEs on 38 CFR 4.6 violations are not difficult to file.And should be filed ASAP.

Otherwise they will probably cause a remand.

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