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

[GeekySquid]

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

[GeekySquid]

27 minutes ago, Buck52 said:

Ms Berta posted this

@Buck52

Thanks Buck, I think this is the path that makes sense considering the complexity and sequence I see. As usual the Queen of Cue @Berta  has an answer already  that seems to make sense.

I will have to look at the files but I am sure the 2013 denial came with a VCAA letter, the 2018 denial with a 5103.

I will have to review the sample cue's posted on Hadit to see how to structure it based on my situation.

I appreciate you finding that link

 

[Berta]

Gee, my personal  VA issues at the RO changed a lot since I made that post-

However the advice is the same.

In my last VA award the Director called me on another issue, and apologized for not awarding due to BOD.

That is what I meant- when I said a Duty to assist violation can become basis for CUE,if it leads to a valid CUE.

I received a letter from my RO a few days ago-on another matter-but I also received 3 letters,all the same, and had to mail one of them to the person, whose name was on the bottom of the letter.

This might be the person who is handling my 4 pending issues.The letter regards a letter I had sent to Secretary Wilkie on the AO potential presumptives. I onder why the RO got a copy of it.

My point gets back to this:

"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."

I received a 5103 waiver that was for both claims I had pending.

The  RO person who called me in addition to the Director, at that time, verified all of the evidence I had listed on the waiver for each claim, and had again enclosed it with the waiver.

They also stated they had already picked out the doctor who would handle the 1151 HBP claim.

I filed a CUE the day after the denial and that claim was awarded within a month of the denial.

On the other issue, the Director ,who called me twice, tried to get me to believe something not supported at all by either VA case law or common sense. It was supported with all of the evidence I had sent with the 5103 waiver on that specific separate issue.The CUEs on that are pending.

The fact that the HBP claim was awarded still bothered me the way the SOC referred to the VA "examiner"'s opinion, It was ridiculous. But good enough for VA to deny the claim at first.

Oddly enough my sole piece of evidence for that claim was listed as Evidence but ignored in the denial.

I finally got a copy of the actual C & P exam and it was more ridiculous than I thought so I filed a WH Hot line complaint.

Maybe I stated this wrong-

"You can file CUE on their Violation of that policy,if you can apply 38 CFR 4.6 to your CUE."

If you can file CUE under violation of 38 CFR 4.6, and succeed, tthat will overcome any violations of DTA, and BOD, as well as violations of the VCAA ( 5103 waiver)

However, as I mentioned before I had a VCAA violation years ago. The claim went to the BVA, and I asked for a remand, due to that violation.

My dumb vets vets ( I filed a complaint with the OGC  against them-they are all gone ) would not agree there was a VCAA violation.

The BVA agreed there had been . I won that claim, because they said the violation was rendered moot because my considerable evidence warranted the award anyhow.

VCAA and 5103 is part of Duty to Assist. 

In my CUE on the second claim errors, I added that I sent them a copy of that BVA award, and stated since they ( Buffalo VARO) violated my VCAA rights already, for a different claim,it is as likely as not they also violated my 5103 VCAA rights again.

The VA was violating the  2000 VCAA countless times in the past,which caused countless remands by the BVA. I am sure I am not the only claimant whose 5103 was defective.

Your VCAA rights are so important that it should be the first thing any vet rep looks at in your C file.

 

 

 

 

 

 

 

[GeekySquid]

1 hour ago, broncovet said:

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.  

@broncovet

I appreciate your input.

This is part of my confusion on which is the right path for me to take.

The Award in 2019 came from an Audiologist exam  (the second of two) that was the result of the 2018 deferral of Vertigo. (when I can get out of this wheelchair I will go to the RO and get the C&P's).

In that same 2018 decision they denied reopening the 2013 decision on Hearing Loss being SC.

The statement in the 2018 denial to reopen says the evidence is not New and Material.

@Buck52  responded  with a link from @Berta that says, essentially, that you cannot cue DTA itself, but you can cue the application of policy if you cite 4.6.

Right this minute I am thinking that I will NOD the 2019 award for an EED, and then CUE both the 2018 denial for failing to follow policy on New and Material, and the 2013 denial for failure to apply policy.

-----

In the same NOD for the 2019 decisions I will also NOD for an EED on the 30% Vertigo award. I have a challenge in this claim because in the 2013 Award process the VA ignored the evidence that the VAMC and my STR's say about Vertigo and dizziness.

In 2012 VAMC New Orleans Audiology sent me for an MRI and a VNG for vertigo. I had nystagmus and the MRI found I had ESS based on a "partially empty sella". All of which were done prior to the 2013 Award for PTSD, Tinnitus and Denial of Hearing Loss being SC.

VAMC put in the records these tests were done and "would be" uploaded to the files, but that seems to not have been done. When I found out about the tests I began faxing FOIA requests into VAMC New Orleans for the tests, and they just refuse to answer me. In telephone calls to the Off. of Info. Release they say the records are not there.

VAMC Seattle says they called New Orleans and are told the records are lost.

I have to figure out in my NOD how to word the claim for an EED based on the evidence the VA rater did not acknowledge existed in 2013. I also have to figure out how to word it so that the RO or eventually the BVA orders VAMC New Orleans to produce those records and address why they will not respond to my FOIA's.

I actually have the outside tests for the MRI and for a sleep study they also ignored which showed I have OSA and was issued a CPAP.

This situation is very convoluted.

thanks for your input.

[GeekySquid]

41 minutes ago, Berta said:

If they send you a 5103 waiver

@Berta

Thank you for responding.

Something just dawned on me and I think I need help clarifying it.

You wrote about a 5103 Waiver, and what I realized is that I don't know for 100% sure what the 5103 looks like.

I went back to my award letters to find a form or reference to 5103.

In both the 2018 award letter and the 2019 award letter the only reference to 5103 is under Evidence.

The 2018 Evidence entry says Section 5103 Notice Response, received Aug 21, 2018 and Sept 18, 2018

The 2019 Evidence entry  says Section 5103 Notice Response, received Sept 18, 2018.

Since I did not receive a piece of paper titled 5103 I am assuming these are referring to parts of the on line application for a claim.

so my confusion is what does a 5103 WAIVER look like and when does it come into play? what triggers the Waiver part and why would anyone Waive their rights?

[Berta]

Here is the 5103 Waiver I received:

5103 Waiver.pdf

[GeekySquid]

2 minutes ago, Berta said:

Here is the 5103 Waiver I received:

@Berta

Thank You. So that is the Waiver.

Interesting.

In my 2013 claim I got that piece of paper.

In my 2018 claim I did not get that piece of paper, just the line entered as evidence

in my 2019 award I did not get that piece of paper just the line entered as evidence.

 I am thinking that the electronic processing of an FDC is what stopped the mailing of that notice for new claims, but I now need to look up if a physical notice is needed for a denied reopening of a claim.