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Duty To Assist ...

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RBrogen

Question

I'm trying to get a better idea of what the VA's obligation is under the "duty to assist" veteran's with developing and adjudicating their claim.

Scenario:  During a C&P exam for condition "A", tests performed also proved that a previously service connected condition has worsened.

Question:  Does the VA have any obligation to view that evidence as a sympathetic claim for increase for the service condition that has worsened?

Thanks as always!!!

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  • Content Curator/HadIt.com Elder

For an existing SC issue, to qualify for an increase, all you have to do is have proof. If the proof is within the past 12 months, the VA will take a look, verify, award the increase if it warrants a higher percentage. One thing to keep in mind is the VA does not automatically go back and award increases - you have to ask for them. If you qualified for an increase more than 12 months ago, they will not pay retro farther back than that.

Because yours was found during a C&P, it might trigger the VA to determine if it warrants an increase. I would hope the VARO agent would proactively see if your rating could increase. If they don't, it might be worth requesting an increase anyway.

For example, many of us have spine injuries. I had an MRI done years ago and one that was recent. The radiologist noted that my condition got worse. However, when I bounced his notes off of the spine rating criteria, it didn't warrant an increase because my ROM limitation did not meet the next higher percentage tier.

I hope this helps.

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9 minutes ago, Vync said:

For an existing SC issue, to qualify for an increase, all you have to do is have proof. If the proof is within the past 12 months, the VA will take a look, verify, award the increase if it warrants a higher percentage. One thing to keep in mind is the VA does not automatically go back and award increases - you have to ask for them. If you qualified for an increase more than 12 months ago, they will not pay retro farther back than that.

Because yours was found during a C&P, it might trigger the VA to determine if it warrants an increase. I would hope the VARO agent would proactively see if your rating could increase. If they don't, it might be worth requesting an increase anyway.

For example, many of us have spine injuries. I had an MRI done years ago and one that was recent. The radiologist noted that my condition got worse. However, when I bounced his notes off of the spine rating criteria, it didn't warrant an increase because my ROM limitation did not meet the next higher percentage tier.

I hope this helps.

Thanks Vync.

In my case I have a previous SC condition 20% radiculopathy upper left and 20% radiculopathy upper right based on a "MILD" paralysis affecting all 3 radicular groups that was approved March 2019 with effective date of March 2018.  In August of 2019, I had a C&P for another condition and during that C&P they rated my condition as "MODERATE" for all 3 radicular groups.  I received the decision for the original condition claimed and then filed a HLR requesting, in part, that they consider the C&P report with documented severity change to be a sympathetic claim for increase on the radiculopathy conditions Upper Right at 40% (dominant) and Upper Left at 30% given that is the rating given for moderate severity.  My HLR has been closed and there was no change in the radiculopathy ratings so I am assuming they have denied or ignored it.  I am waiting on the decision letter now to know for sure which.

I'm trying to get clarity on what the VA's responsibility is in a situation like this where another SC condition's severity has documented increase during a C&P for a completely separate condition.  Are they required to consider that as a claim for increase in their requirement for Duty To Assist?  I guess I'm just not clear as to what they are required to do under that Duty To Assist law.

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  • Content Curator/HadIt.com Elder

Because the worsening was noted two months ago, you are well within the 12 month window and could file for an increase. If it was SC bilaterally, the increase would contain a nice boost.

Here are some other things to consider.

Quote

§ 3.103 Procedural due process and other rights.

(a)Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

On one hand, the VA has the duty to maximize your benefits, but on the other hand, they want to do as little as possible. If they really cared about protecting the interests of the Government, they would get claims right the first time because the appeals process wastes everyone's time and money.

 

Quote

38 CFR § 3.400 - General
(o)(2)Disability compensation. Earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established.

As info, that's the regulation governing increases.

 

You are stuck in the famous grey area blended into the VA red tape. I speculate they come back saying you never specifically requested the increase, but can file one via supplemental claim. The HLR is supposed to only use evidence present in your records, nothing new. Proof you qualified for an increase is in there. They should have took it seriously.

 

I had something interesting happen earlier this year when I filed a claim for heart attack secondary to long term NSAID use. During the C&P, the first question the doc asked was which med I thought might have contributed to the heart attack. I said I am not a doctor, but asked for them to explore all medications used to treat SC disabilities within the past year, including some migraine meds I took. The doc nodded. Claim got denied and no mention anywhere about other meds. Had another C&P for something else a couple of months later with the same doc. I brought up the fact that despite me asking them to consider other meds, it did not happen and was not noted. The doc told me that they must focus specifically on exactly what the VARO tells them to check, not what I bring up.

I then thought about this and will be appealing the denial:

Quote

§ 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.

 

I think it comes down to VA laziness for both of us.

 

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4 minutes ago, Vync said:

Because the worsening was noted two months ago, you are well within the 12 month window and could file for an increase. If it was SC bilaterally, the increase would contain a nice boost.

Here are some other things to consider.

On one hand, the VA has the duty to maximize your benefits, but on the other hand, they want to do as little as possible. If they really cared about protecting the interests of the Government, they would get claims right the first time because the appeals process wastes everyone's time and money.

 

As info, that's the regulation governing increases.

 

You are stuck in the famous grey area blended into the VA red tape. I speculate they come back saying you never specifically requested the increase, but can file one via supplemental claim. The HLR is supposed to only use evidence present in your records, nothing new. Proof you qualified for an increase is in there. They should have took it seriously.

 

I had something interesting happen earlier this year when I filed a claim for heart attack secondary to long term NSAID use. During the C&P, the first question the doc asked was which med I thought might have contributed to the heart attack. I said I am not a doctor, but asked for them to explore all medications used to treat SC disabilities within the past year, including some migraine meds I took. The doc nodded. Claim got denied and no mention anywhere about other meds. Had another C&P for something else a couple of months later with the same doc. I brought up the fact that despite me asking them to consider other meds, it did not happen and was not noted. The doc told me that they must focus specifically on exactly what the VARO tells them to check, not what I bring up.

I then thought about this and will be appealing the denial:

 

I think it comes down to VA laziness for both of us.

 

Thanks for the details bud ... I think you are right about the VA laziness.  On one hand they took the time to go back in my previous decision, call 4 CUEs on themselves, give me EED on conditions that provided a year earlier effective date than the original claim.  I knew when I added the "sympathetic claim" element to my HLR that it may not be approved but I wanted to test the waters and see how it would be handled.  All of this doesn't have any impact on  my overall rating because I'm 100% P&T but I want to make sure every condition is rated properly.  I will be filing a supplemental  claim on this once I get the decision letter.

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5 minutes ago, RBrogen said:

Thanks for the details bud ... I think you are right about the VA laziness.  On one hand they took the time to go back in my previous decision, call 4 CUEs on themselves, give me EED on conditions that provided a year earlier effective date than the original claim.  I knew when I added the "sympathetic claim" element to my HLR that it may not be approved but I wanted to test the waters and see how it would be handled.  All of this doesn't have any impact on  my overall rating because I'm 100% P&T but I want to make sure every condition is rated properly.  I will be filing a supplemental  claim on this once I get the decision letter.

On your prior claim, you might have got an agent who knew what they were doing. This time you might have got gomer pyle. Sympathetic reading might not have anything to do with it. That's why I had a strange suspicion they will come back and tell you to come out and ask for it.

You and I are in the same boat. After the heart attack, I decided to get up and go back to correct the wrongs. This way when I am gone, I can rest peacefully knowing that I did not let the VA get one over on me. It's about principle. Additionally, the increased ratings can help with the potential for SMC if/when things start going downhill.

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5 minutes ago, Vync said:

On your prior claim, you might have got an agent who knew what they were doing. This time you might have got gomer pyle. Sympathetic reading might not have anything to do with it. That's why I had a strange suspicion they will come back and tell you to come out and ask for it.

You and I are in the same boat. After the heart attack, I decided to get up and go back to correct the wrongs. This way when I am gone, I can rest peacefully knowing that I did not let the VA get one over on me. It's about principle. Additionally, the increased ratings can help with the potential for SMC if/when things start going downhill.

I here ya about making sure things are right.  I walked away from the VA for over 25 years and was stuck at a 20% rating.  I picked it back up in Nov 2018 and as of April of 2019 went from 20% to 100% P&T.  It has a direct impact on my family, my kids college etc and is only right that the VA do the right thing.

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