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]

Basically, you covered it.

 

How is VA supposed to know what the Veteran considers to be disabling? Just because it shows up in your STRs or because you get treatment for it afterwards doesn't make it disabling, or even service connected or secondary. In order to be a 'disability' that can be service connected it needs to be diagnosed, and chronic, first of all. Acute conditions (I stubbed my toe in Basic and it never hurt again....) are not disabilities, neither are many of the conditions related to general aging. Vet reps, barracks lawyers, etc. tell veterans to "look at your medical records from service, and then whatever you are seeing a doctor for now, and claim anything you find....." which is lousy advice, because, without some further consideration, not everything is a disability by definition or by personal definition, i.e. " This condition doesn't disable ME". 

Not everything that shows up in STRs or Capri/VAMC, or your private records meets the legal standard of a disability with regards to service connection. It creates a lot of extra unnecessary work, exams, ultimately denials (in some cases), appeals, etc. - for something that didn't ever meet the legal criteria and shouldn't have been claimed in the first place. And then, those veterans go to their clubs, Veteran groups, the Internet- and are upset because of the denial, and then pollute the pool for new veterans that decide not to file for things that they should have right from the get go (within the year after RAD).

Now, you have a veteran that should have applied and potentially could have easily won their claim but are timed out both for their earlier effective date but also to show continuity of treatment. It's a lot easier to claim and win something right out the door with STRs than to wait 2-3 years and start from scratch, especially if you don't go to the doctor for it, anyway. 

The few exceptions are Separation Health Exams on the way out the door, and things that manifest to a compensable level within a year of discharge- and even those aren't a presumed disability in every situation, much less disabling "to you" or according to the ratings schedule. 

How would you like to get a letter in the mail from VA where they just assume you are disabled for something that you don't consider a disability and doesn't limit you, anyway?  I have spoken with many veterans and non-veterans alike that don't consider some things to be a disability are are quite insulted if you say that some condition or another is. 

Bottom line is, if you want to claim it as a disability then claim it as a disability. You know whats wrong with you and what you consider to be a disabling condition. VA doesn't. There are some situations that can be inferred- like IU if you are likely to meet the threshold even if your pending claim isn't rated yet,- but might be granted, or housebound, but we cannot assume every condition is potentially a disability or know what it is that you want to file for.

Also, inferred ratings can only be done for things that will result in a grant of benefits- an inference can't be done just to then deny it. 

[Mr cue]

21 minutes ago, brokensoldier244th said:

How is VA supposed to know what the Veteran considers to be disabling? Just because it shows up in your STRs or because you get treatment for it afterwards doesn't make it disabling, or even service connected or secondary

Let me start by saying I love your info it help alot.

 

So this is how the va think

Ok if I got str with a conditions listed and I get out service an just claim I am disabled. In One year an I am been treated at va hospital 

I did not  put a condition on the claim.

 So The va has no obligation to look at my str records an address anything because I didn't claim a condition.

And they don't have a obligation to find out if my other condition in my str are service connected or secondary.

Or address my va medical records or even order exams

Because I didn't claim  condition.

So if this is right veterans are doctors An u better understand what is secondary condition is because the va has no obligation.

 

See this is why they make laws and have a board and court.

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.

This why veterans need to appeal and understand the law

 

 

 

[brokensoldier244th]

You don't have to know if its primary or secondary- you just have to claim it. The examiner and rater make the determination. 

 

As for the rest, no, just because we have to look at the record sympathetically, we do not assume what you want to claim. WE can take a claim for Rhinits and do an exam for sinusitis or something similar if your dx is not for Rhinitis, though, and we infer IU examinations all the time by soliciting the veteran for the 21-4192s with employment info, and the 8940 with the medical info signed by the doc, even if the veteran didnt claim it. 

M21-1 V.ii.2.A.1.c Definition and Example: Issues within scope

 

While the law requires VA to give a sympathetic reading to a veteran’s filings by determining all potential claims raised by the evidence, and applying all relevant laws and regulations, nevertheless, it is well settled there must be: 1) an intent to apply for benefits, whether formal or informal; and 2) the intent must be communicated in writing. Criswell v. Nicholson, 20 Vet. App. 501 (2006) (citing MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006)).

The Criswell Court went on to explain that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See 38 C.F.R. § 3.155(a).

[Mr cue]

This is why I tell veterans to claim hand neck back.

Then it is up the the va. To do there job. We are not doctors.

 

[brokensoldier244th]

No one said you were. The point is you have to claim it. We don't care HOW you claim it, and just because someone claims it 'secondary to something else..." and its not doesn't mean that its not SC on a direct basis. Usually we set up the exam for both opinions anyway. 

[Mr cue]

And if they miss something you have a pending claim.

I am not one to make it easy to denied. This is my opinion on the subject.

Other may feel different