Duty to Assist

[Huggy]

Greetings,

Here's something that just wormed its way into my little pea brain.  Does the VA's duty to assist apply to this scenario:  I submitted a claim for several things a few years ago.  I admit that I did not do my due diligence and was not aware of secondary connections, so I simply submitted the claim without mention of any secondary connections--all conditions I included in the claim claim were denied in a prompt and efficient manner--no direct service connection.  I know know that the claim would have been better suited if I would have stated "as secondary to XXX", or whatever the phraseology is.  I'm wondering if the person reviewing my claim should have asked if these issues were secondary to my service connected issue--would that not fall under "duty to assist", or when they talk about duty to assist, are they simply referring to scheduling C&P exams and the like?

I know these people are extremely busy, and they certainly can't determine intent--they probably have to deal with what is presented to them.  Just wondering!

Thanks!

Huggy

[brokensoldier244th]

Probably not. We process whatever you claim but we can't make the determination of whether or not a condition you claim is secondary to something else unless you raise the point-we'd just be guessing, plus, a secondary condition has to be claimed against an already SC condition. If you have several SC conditions in a related part of the body we wouldn't know what/which you were claiming it to be secondary to. 

The requirements of DTA are found here: M21-1 I.i.1.a

[Mr cue]

I think what you are saying is a little bigger than duty to assist.

An condition that was part of your record should have been address.

Did they order exams back than for your condition to see if they were service connected or secondary.

Listen veterans are not doctor and should be act like them.

It is the va Duty to find out if the condition is cause by a service connected disability.

Not the veteran.

Other may have the law that address this.

 

[brokensoldier244th]

No, veterans aren’t doctors and neither are we. Just because something shows up in a service treatment record doesn’t mean it’s service connected. There are still criteria that have to be met. VA is not, nor is it required to, assume things that you want to claim. Lots of things aren’t disabling but show up in service records. They aren’t disabilities unless you claim them to be, other than presumed conditions.

Regardless of primary or secondary the OP needs to address the reasons for denial, which they have not given. 

[Mr cue]

I am not talk what the regional office believe I am talking the law.

I really don't have time to find the regs and laws that address this.

But it go something like any issue reasonable by the record.

And so on.

I will posted it later for the op.

I hope someone come along with it

[Huggy]

Let me clarify a little bit--it might help the discussion.  I was in artillery in the Corps and am service connected for tinnitus and tinnitus alone.  I couple of years ago, I had a guy tell me that I should submit a claim for anything and everything that is medically wrong with me--the "throw it up against the wall and see if anything sticks" theory, I'll call it.  I now realize this was piss-poor advice and actually, it was way out of character for me.

Anyway, I was in to see my VA primary care provider several months ago and we were going over my "issues" and she brought up the theory that several--depression/insomnia, for instance could potentially be service connected via the secondary route.  After my earlier screw-up, I have decided that I would get my act together and research this avenue thoroughly before deciding to do anything (hence my relatively recent appearance on this site).  You all are very willing to share thoughts, past experiences, and advice freely and I appreciate the hell of that.

As part of the research, I came across the duty to assist phrase--I'm definitely not dialed into the legalese, but a few of the of the BVA decisions that I have read seem to allude to the idea that there may have been an error at the regional office in that they didn't look into secondary connection.  Like I said, I'm not fluent in legalese, but that was the feeling I got--that led me to this question.

Thanks--I'll hang up and listen!

[Huggy]

Gotcha brokensoldier244th!  Looks like you answered again while I was typing.