LZ CORK—-BUTCH’S INFERRED CLAIM


635646931319099161-veterans-administration-logoWhat in the Sam Hill is an inferred claim? Who dreamed up that Fustercluck concept? I get more queries on that since the VA term became fashionable. Included in these Veterans’ follow-on sentences are usually phrases like “I think they done deemed denied me!” and a nuanced discussion about how they got hornswoggled out of an earlier effective date. Let’s investigate this.

Here are several great legal discussions about it. You can find these at the CAVC site.

Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006) opened the door to the concept that VA sometimes disremembered to do its job at the RO. They concluded with the misguided idea that it was okay most of the time. I personally think that makes nonadversarial a good descriptive adverb for a sidewinder, too.

Cogburn v. Shinseki, 24 Vet.App. 205, 214-15 (2010) Cogburn set 4 tests to see if it was inferred, informal or infernal or still viable. Cogburn took into account whether you had DAV as your legal team(i.e. unrepresented). Taking advantage of pro se Vets is so gauche.

In Richardson v. Nicholson, this Court held that, when presented with an assertion that VA failed to adjudicate a reasonably raised claim in the context of CUE, VA must make two threshold factual determinations:

(1) Whether such a claim was reasonably raised based upon a full and sympathetic reading of the pro se appellant’s prior submissions; and if so,

(2) whether the claim remains pending or was adjudicated. 

Specifically, the Court in Richardson clarified that the Board should first give a full and sympathetic reading of the [pro se] appellant’s filings to determine whether a claim was reasonably raised.  If the Board determines that a claim was reasonably raised and was not adjudicated, then it remains pending and must be remanded to the RO for adjudication.  If the Board “determines that the claim was adjudicated, then the claimant may collaterally attack the resulting decision on the basis of CUE.” 

infer

verb in·fer \in-ˈfər\

Simple Definition of infer

  • : to form (an opinion) from evidence : to reach (a conclusion) based on known facts

  • : to hint or suggest (something)

  • In VAspeak, an inferred claim doesn’t exist, per se, until you finish acting on it by making it a filed-for claim within a year of mumbling that you might be suffering from it. At that point, there is no doubt about whether it’s inferred because it’s on paper.

38 CFR §3.155 discusses new, original claims.

 

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

§ 3.157 Report of examination or hospitalization as claim for increase or to reopen.

(a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of § 3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report.

This touches on the reason why we end up with “reasonably raised”,  implied or inferred claims. You show up in 1970 and the doctors says “Whoa, that satchel charge toasted your ear, dude” You, of course say “What was that? Oh, you mean my hearing? I didn’t know it was that bad. Maybe I should file.” In most cases, that was  the end of the claim- be it new or a reopen- unless you personally acted. Expecting VA to quickly send out the twenty six page 21-526 to your last known address just wasn’t in the cards regardless of what they said. The Catch 22 that always let them off on this was a two-part trick. Pulling the pin didn’t start the clock. Pickling the bail and throwing it at them did. You had one year. If VA hadn’t sent you any filing papers by then, it wasn’t their fault. Read the rules book. Ignorance is not bliss.

Thus, in 2015, the old lady says you are soooooo deaf so you refile for hearing loss. You win but it’s eerily like what you filed for in 1970-sort off. You said your ears rang a lot in 1970 and they blew you off. They gave you 0% for “deafness”. You reopen for it this time and call it tinnitus. Bingo!-10%.  Before you filed this time, if you were smart, you got the old c-file and noted that you filed for it just like you thought you did. You told them about the ear ring. They wrote it down. The doctor even mentioned it by name in the C&P report. They just sort of let it slide because you didn’t actually call it tinnitus. Well, that’s what VA is going to argue. No way are they going to talk about 1970, cowboy. So how do we turn this into an “inferred” or reasonably raised claim? Watch closely, young Skywalker. The c-file is quicker than the eyesaber. VA was sooooo dumb back then that they actually wrote it down. Too late to erase it when you get your c-file BEFORE you file. Some would say this cost old Butch Long 10 months of benefits. I say it gained him 46 years of a lot of retroactive baksheesh.

Evidence is king. I tell you that over and over. You construct it like a concrete foundation. All the documents below are originals. Left clicking on them will magnify them for you. Left clicking on them twice will really magnify them for those of you who are blind like us old farts. You have to begin with an entry physical showing good hearing when you went in. Like this:

Long redac Presumption of Soundness

Okay, now you have proved you arrived with two good ears. That is the Presumption of Soundness. Next, you have an exit physical that implies things got a little bunged up in between:

Long exit physical

Throw in the filing for the claim. Remember, you don’t have to be anally retentive with the terminology. You told them you had too many holes in your ears and eyes and weighed substantially more than you did when you went in due to you’re packing all that extra steel. Throw in a mention that the Homeland Security guys at the airport get mighty excited after you walk through the metal detector. They always want to see you naked after that.

Long 526 orig. claim REDACThrow in a C&P Examination showing you complained about that funny ringing sound and all the pus oozing out. While you’re at it, throw in the bogus right eyeball and the right  hand and head wound/headaches. Pretty soon it looks like you were filing for TBI. Wait… you were, but you just didn’t know how to do it back then.

Long 1970 C&P pg 1 REDAC

Throw in the stupid VA doctor who slipped up and mentioned tinnitus and a future cataract (incipient lens change). See where we’re going with this?

Long C&P REDAC

Refile in March 2015 and wait for VA to tell you your effective date is… March 2015. This is when you break the bad news to them that your effective date is controlled by your- yep, wait or it-  inferred or “reasonably raised” claim. You ate the satchel charge. You said your ears rang all the time and the doctor said it was tinnitus. You were rated 0% for deafness. It isn’t your fault they forgot to rate all of it. You asked for it and you’ve been patient. They finally grant it and you spring the  1970 trap.

That’s how you are supposed to “infer” a claim in VAland. This is really what we call an informal claim in it’s truest sense for the Tinnitus. This is also an example of your filing for it and complaining in the only tinnitus language you understood (ringing). You were not a doctor. If a satchel charge went off about a foot away from you, it was called concussive blast injury. They call it acoustical trauma nowadays and give you TBI, bent brain, bent ears and a lot more-including tinnitus. In 1970, they called it 0% for deafness. We’ve come a long way semantically, baby.

Long Rating sheet 1970 pg 1Long Rating sheet 1970 pg 2

Now, when you file your Form 21-0958, you can say legitimately “Dude, what happened to my tinnitus rating from 1970? Or my right side head wound with retained shell fragments? Or the incipient cataract that eventually formed over my right eye owie? Or the right hand that goes numb after about an hour or two of work every day? Huh? When are you going to rate them?  When you ate that much Semtex, they were supposed to start thinking of the bigger picture. If they didn’t, you wait them out like Butch did. It ain’t over until Butch says it is. All those retained shell fragments are still there. VA can bullshit you but they can’t bullshit the retained metal fragments out of you.

This reminds me of herding ADHD cats. They just can’t seem to stay on track but think you’re stupid enough not to notice or add it up yourself.

dsc01113

Butch and me at his Valentine’s day bash

About asknod

VA claims blogger
This entry was posted in Inferred claims, Informal Claims, KP Veterans, Nexus Information, Tips and Tricks, VA Medical Mysteries Explained, Vietnam War history and tagged , , , , , , , , , , , , , . Bookmark the permalink.

9 Responses to LZ CORK—-BUTCH’S INFERRED CLAIM

  1. Ron says:

    To the man that made the comment that “Your sense of humor is admirable” obviously never contended with these dingleberries at the rating offices. These are career bureaucrats that have been specially or non-specially trained in how to do the following:
    Be absurd
    Be non commital
    Be circular in their answers
    Be stupid (most of the time for real)
    Be insulting and last of all be denying.
    Deny, deny, deny your claim.
    I was told by two different service officers with a major veteran’s group that there exists a points for promotion system to keep the veteran from reaching a rating. He gave me the points system that he had witnessed but I will not get into that here, but according to these two men it exists. If one doubts that bring it up to a VA clerk or member and watch their blood go from 98.6 to 1000 degrees celcius in less than fifteen seconds. I know because I did it once to see if it was true.
    So since they receive points to promotion for obstructing your claim, is it any wonder that the “cluster f***” exists?

  2. Kiedove says:

    What happens when they don’t write complaints down? Out of luck? Some issues we’ve told the VA never appear in my spouses problem list. And the written material from non-VA care, which is supposed to be uploaded into the electronic records, never make it. Although I have some copies provided my spouse’s VA PC doc in MN.
    (And why is the info. from blue button downloads missing so many tests etc…)

    • asknod says:

      This is why we have Cheeseville now, Kiedove. If you send it in, it now sticks in the .pdf c-file. Electronic footprints are far more difficult to erase and usually leave all kinds of nasty footprints when they’re tampered with.

      • Kiedove says:

        Then I’ll try attaching some files to VA secure messaging to the new PC. Some old messages are in the blue button info. and some are not…likely deleted by the PC. But we still have a record–I think–in the “sent” box. The only info. available to us via blue button goes back about 3 years only.

  3. rwskitch says:

    You’re sense of humor is admirable…!

    • asknod says:

      No sir. My sense of what VA does (and did) to us Vietnam Veterans has passed the point of being able to sleep at night. I have seen unconscionable things done but this is far and away over the top. It cannot stand.

  4. Clear Left says:

    Mr Graham,
    This is the very last straw. You are officially removed from the annual Christmas Card list effective IMMEDIATELY.
    Bob

    • asknod says:

      Dear Sec “Call me Bob” McDonald,
      Please give me one more chance. I have a Vet in Manila who deserves R2. Then you can cut me loose. Besides, I’ll be lost without your Bobograms.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s