Diagnosis/Issues/Complaints discovered during a C&P exam

[JKWilliamsSr]

I recently heard that if during a C&P exam if the examiner lists something that was not claimed by the veteran it becomes a pending claim and the VA is required to adjudicate it.   In this video the person stated that because of this they won a claim for backdating.   I was not certain if I am allowed to link the video but will if one of the mods say it is ok but I will give a synopsis of what was said. 

His claim was for knee issues but during the examination the examiner noted in the the "HEENT are significant for frequent headaches which are felt related to eye strain as well as frequent upper respiratory infections"......  (HEENT is a medical abbreviation for head, eye, ear, nose throat)

The veteran did not make a claim for headaches at all.  He stated in this video that because the examiner made a note of this in the record it automatically became a pending claim and the VA was required to adjudicate this and if the did not do so it would remain in as a pending claim.  He stated that when he did file for headaches he won the appeal and got back pay all they way to the date the original examiner made a note and the rater did not make a decision. 

Now my question is if this is true? I am going to assume it is because the guy won the appeal but I cannot find the regulation, law or any information that discusses this.  Google who is normally a wonderful friend has not been so in this case  ..... Anyone know where I can find info on this?

[RBrogen]

I have heard of the VA treating a condition noted as a "sympathetic claim" and then adjudicating that with an open claim that discovered it.  They did that with my tinnitus because when I filed it was for "hearing loss" and I got SC and rated at 0 but they noted I had tinnitus and told me to file a claim for it.  I filed the claim and when they adjudicated the claim, they noted that my original claim for hearing loss should have been considered a sympathetic claim for tinnitus and thus approved the earlier effective date for my claim.

[GeekySquid]

What they are relying on is the VA's Duty to Assist which has an included Duty to Infer.

What that means in plain language, is that any reasonably raised claim, including those identified at a C&P or from the Rater going through your record working on something, creates a situation where the VA has a Duty to Assist you in developing the claim and gathering evidence in support of that claim.

In practical terms when we file claims, particularly initial claims, the VA rating teams work through our file looking not only at what we claim but the whole file. They "tab" things in the VBMS for the C&P Dr and Rater to know about that may be relevant to our claim or be secondary to our claim or even reasonably raise another claim that the veteran did not formally file.

It is not a perfect system and neither are they. Many older records are hand written and the scanned copy is crap. Even top notch OCR software cannot understand every piece of chicken scratch on an electronic copy of a faded paper copy of a 20 year old document.

Their path then is to notify the vet they have a possible claim and suggest the Vet file for it, just like @RBrogen wrote about.

On 5/22/2019 at 7:32 AM, JKWilliamsSr said:

Now my question is if this is true?

I can't speak to that specific claim, but yes it is true and it happens. I had one too.. of course they also claim to have "lost" evidence of other claims too so for me they are in the negative on that score.

[RBrogen]

I'm actually trying a sympathetic claim on an existing claim and will post the results when they adjudicate the claim.

[GeekySquid]

Just now, RBrogen said:

I'm actually trying a sympathetic claim on an existing claim and will post the results when they adjudicate the claim.

that sounds like fun

[RBrogen]

Yeah during a recent C&P for other conditions, the examiner completed a DBQ and on it noted that my radiculopathy was "moderate" severity for all three radicular groups.  I was previous rated for "mild" severity.  I had an issue with the claim decision where it had ignored a rating for painful scars of head/face/neck so I requested a Higher Level Review (HLR) and noted the discrepancy and on the same form noted the new severity of the radiculopathy and requested that they consider that a sympathetic claim for increase for radiculopathy upper bilateral extremities 38 CFR 4.124a (code 8513).  I sent that on 9/4/2019 along with the copies of the relevant pages of the associated C&P so we'll see how they respond!  

It pays to read your C&P and any test results THOROUGHLY!!!

Edited September 14, 2019 by RBrogen

[GeekySquid]

4 minutes ago, RBrogen said:

t pays to read your C&P and any test results THOROUGHLY!!!

it does and good luck let us know what happens