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]

Depends on what it’s secondary to. If you are already sc for MH, for example, then other mh contentions fall under that, not separate ratings, due to pyramiding. 

[brokensoldier244th]

2 hours ago, Mr cue said:

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.

 

Shockley v. West, 11 Vet. App. 208, 214 (1998)

Collier v. Derwinski, 2 Vet. App. 247, 251 (1992) - among others

however, neither of those require that every thing in your STRs is a claim, nor every conceivable potential theory. 
 

[Mr cue]

9.2. Reasonably Raised Issues

It is well settled that on appeal the Board has a duty to address all issues reasonably raised either by the appellant or by the contents of the record. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). In Robinson the Court determined that, because proceedings before VA are nonadversarial, "the Board's obligation to analyze claims goes beyond the arguments explicitly made." 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). "It is entirely possible that the record might 'indicate' a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory," meaning that "a theory can be both unknown to the appellant and suggested by the record." Id. (citing Ingram v. Nicholson, 21 Vet. App. 232, 25657 (2007)). 

 

 

38 U.S.C. section 7104(d) also provides the Board with jurisdiction to review a wide scope of matters by requiring that the Board consider "all material issues of fact and law presented on the record." There are no qualifying terms requiring the Board to address only material issues or claims that have been previously considered by the regional office. The only significant statutory limitation on the Board's broad jurisdiction is the claimant's right to "one review on appeal" under section 7104(a). 

 

 

But the Federal Circuit has indicated that this limitation is eliminated when the claimant effectively waives additional review. Specifically, in Disabled American Veterans v. Secretary of Veterans Affairs, the Federal Circuit held that section 7104(a) creates a procedural right that entitles the claimant "to appeal an adverse [agency-of-original-jurisdiction] decision to the Secretary of Veterans Affairs." 327 F.3d at 1342. The Federal Circuit has also held that the claimant may waive this right. Id. at 1341-42.

 

 

[Mr cue]

And just to make all the va lover happy.

 

On the other hand, the Board is not required "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Id. Although the Board must interpret a claimant's submissions broadly, it is not required to conjure up issues that were not raised by the claimant. Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009). Accordingly, "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory." Robinson, 557 F.3d at 1361. In other words, "[t]he Board commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record." Robinson, 21 Vet. App. at 553; but see Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that the Court may exercise its discretion and refuse to consider arguments or issues first raised on appeal to the Court on the ground that the appellant failed to exhaust his or her administrative remedies). "The question of the precise location of the line between the issues fairly raised by the appellant's pleadings and the record and those that are not must be based on the record in the case at hand; therefore, it is an essentially factual question." Robinson, 21 Vet. App. at 553.

[Whodat]

@Huggy  I do understand your frustrations on the duty to assist. It's very confusing to me as well. I don't know if I should start a new thread on this topic but I basically had the same scenario.

I had claim knee when I had retired in 08. Denied. Had 1 and 2 but no nexus. Reaplied in 2017 secondary to pes planus. The c&p examiner wrote in her opinion that it wasn't secondary to pes planus but direct service connections from event or injury while in service. Denied.  Did an NOD. About a month ago saying that VA duty to assist error. 

Seems to me that the VA wastes more money by denying a claim that should have been sc,d because vets are smart and is going to appeal. Wasted man hours more c&p exams and larger backpay.  When are they going to get it right. Include secondary as already serviced connected disability. 

[Rattler]

The problem is you are confusing "duty to assist," with actual assistance form the VA. They are two different things. The VA has a "duty to assist" you in getting records. An example of this is the VA has access to areas of the national archives that VSO, Attorneys, and you and me cannot access like unit records, who was there when you were, etc. They are not required to find something that is wrong with you in the 350 pages of medical records you might submit to them to prove you have a knee injury you did nit claimed but evpect the VA to claim your hips as secondary.

brokensoldier244th may be you can explain it better.