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New Fed Cicuit court ruling

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Andyman73

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How does this new ruling from the fed circuit court effect claims denied because pain was ignored or dismisssed?

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GREAT question:

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1466.Opinion.4-2-2018.1.PDF

It was just published on line a few hours ago- I don't have time to read it yet but this could definitely impact the way VA looks at 'pain'.

Ben Krause assessed it this AM.....

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Berta,

I get Ben’s e-letter, which is where I saw this. According to what he said, based upon the Fed circuit, I could possibly refile over a dozen claims that were Denied due to no DX, but noted and treated in my SMR.  I’m really hoping that I am understanding this correctly. 

Andy 

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"III. CONCLUSION For the reasons stated above, we find the Board legally erred as to its interpretation of the meaning of “disability” under § 1110, as pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability. We remand this action for further proceedings consistent with this opinion. REVERSED AND REMANDED

COSTS Costs to Saunders. Board may examine this question on remand, as it focused its earlier analysis solely on the disability prong." Souce link to Fed. Cir. Opinion  above)

That is the key issue but this is on remand........and this will probably not be an opinion that would reveal retroactive cash for anyone....yet the CAVC decision this rested on was overturned and reversed so maybe more info will be coming on this......

but I bet it produces more claims based on pain- I have not read it all carefully yet and hope others here will read it and chime in on it ...I expect to lose power and/or internet any minute= we are under a high wind alert....in the Southern Tier of NY.

 

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Stay safe Berta! We got same advisory here in South Eastern PA.

I do hope this does in fact, open the door for SC for pain and include clear pathways for EED as well.

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This case seems rather obvious, to me.  If you have "pain" this can be/often is an "occupational impairment".    I think I read where millions of people call in sick to their job because of back pain.  

Unlike what they taught in the military (suck it up), pain does affect our work, of course, depending upon the severity of the pain.  

I was a little disappointed this case was not reversed, but reversed and remanded.  So, its back on the hamster wheel for this Vet.  I think that, once the VA blew their reasons and bases for a denial, then it should be reversed, and not a do over for VA to conjure up new reasons and bases for denials.  

Its kinda like asking Mom and Dad for money, and they tell you no because they dont have any.  Then, when you find out that was a lie, (that mom and dad do have money) the parents should not pull out another list of excuses.  This remand gives VA the chance to find another set of excuses to deny.  I dont think they deserve that.  If there were more than one reason to deny, then they should give all the reasons and bases.  If we refute their reasons and bases, then they should have to award....not to make up more lies to deny next time.  

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  • HadIt.com Elder

 IN a Remand Don't a final decision as to a denied claim only reflect what they denied the claim for?  for that particular claim  ( in the reasons and bases)

and only use the reasons and bases for the denial.  How can they make a decision in a claim if that  pain was not addressed and ignored or never read.

in other words are they required to go back and find another way to deny?

Chronic Pain can cause other conditions to worsen and be the cause of new chronic conditions.

Hill & Ponton Attorneys Says

The VA does not have a specific diagnostic code for chronic pain. In order to receive VA disability compensation for chronic pain, the symptoms caused by the chronic pain disorder must be ratable. For example, oftentimes a veteran’s chronic pain will cause depression. In that case, the veteran’s chronic pain would be rated according to the rating criteria for general mental health disorders.

Keep in mind that, in order for symptoms of chronic pain syndrome to be ratable, the source of the chronic pain must be a service-connected condition. For example, a veteran with a service-connected back condition suffers from chronic pain. The chronic pain causes the veteran to become severely depressed. Because the chronic pain developed out of a service-connected condition, the veteran can receive VA benefits for the depression caused by his chronic pain. In other words, the depression is secondary to the veteran’s service-connected condition.

Edited by Buck52
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