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

[Buck52]

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

[Buck52]

Ms Berta

I look up your post/information at times when I'm stumped, I have got several vets 100% because of your Advise and Great Information  on these postings.....  some I have saved for future Refrance

[GeekySquid]

11 minutes ago, Buck52 said:

4.6 Evaluation of evidence.

thanks @Buck52

[Buck52]

Roger that Geeky!!!

[broncovet]

Im going to supply my source:

 VA FAILURE OF DUTY TO ASSIST IS NOT CUE:

https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

In relevant part:

"The VCAA does not apply to CUE actions.  See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).  In other words, the VA has no duty to assist claimants with CUE claims.  See Livesay, 15 Vet. App at 178 (noting that the CUE "movant bears the burden of presenting . . . specific allegations of error"); 38 C.F.R. § 20.1404 ("The motion must set forth clearly and specifically the . . . errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error."); see also Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (noting that the duty to read pro se filings sympathetically applies to CUE motions); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (whether a sympathetic reading of a veteran's filing raises a valid claim is a factual inquiry, reviewed under the "clearly erroneous" standard)."

Edited May 16, 2019 by broncovet

[GeekySquid]

51 minutes ago, broncovet said:

m going to supply my source:

Your posted link supports exactly what  @buck52 posted from  @berta said about cue at least in terms of my claim for Hearing Loss being denied in 2013.

To shorthand @berta the Cue is not about DTA it about the application of a regulation or law claimed under 4.6

now that post has some information that @Berta may disagree with, particularly the part about a cue being a one and done, and that a spouse of a deceased veteran cannot file cue on his case.

For the purpose of Cue my claim is

1) the VA failed to thoroughly review my record as evidenced by the explicit statement by the Audiologist that she only looked at the four years of my first enlistment. By law and regulation the VA must do a thorough review which has the implicit expectation that they entire thing, including all periods of enlistment will be reviewed.

2) The outcome is determantive as SC was denied. There is no path to say that a denied NSC claim and an awarded SC claim have the same value to the veteran. Our compensation is a property right and SC as a property has distinct and unique value. The VA stated I have a hearing loss that is compensable, the audiologist just could not make it SC based on only the first four years of my enlistment. The in-service injuries happened in subsequent enlistment periods and are documented in my STRs.

3) a reasonable person reading the statement "a thorough review of the veterans military record was conducted" followed by stating a period of time less than half the entire enlistment, would immediately reason that a "thorough review" could not have been accomplished using only half the information available.

4) The error on the dates reviewed by the Audiology C&P did not constitute my entire military service is undebateable. The Audiologist stated it in writing in her own words and the VA raters failed to catch that error.