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VA Disability Claims: 5 Game-Changing Precedential Decisions You Need to Know
Tbird posted a record in VA Claims and Benefits Information,
These decisions have made a big impact on how VA disability claims are handled, giving veterans more chances to get benefits and clearing up important issues.
Service Connection
Frost v. Shulkin (2017)
This case established that for secondary service connection claims, the primary service-connected disability does not need to be service-connected or diagnosed at the time the secondary condition is incurred 1. This allows veterans to potentially receive secondary service connection for conditions that developed before their primary condition was officially service-connected.
Saunders v. Wilkie (2018)
The Federal Circuit ruled that pain alone, without an accompanying diagnosed condition, can constitute a disability for VA compensation purposes if it results in functional impairment 1. This overturned previous precedent that required an underlying pathology for pain to be considered a disability.
Effective Dates
Martinez v. McDonough (2023)
This case dealt with the denial of an earlier effective date for a total disability rating based on individual unemployability (TDIU) 2. It addressed issues around the validity of appeal withdrawals and the consideration of cognitive impairment in such decisions.
Rating Issues
Continue Reading on HadIt.com-
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Tbird, -
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Are all military medical records on file at the VA?
RichardZ posted a topic in How to's on filing a Claim,
I met with a VSO today at my VA Hospital who was very knowledgeable and very helpful. We decided I should submit a few new claims which we did. He told me that he didn't need copies of my military records that showed my sick call notations related to any of the claims. He said that the VA now has entire military medical record on file and would find the record(s) in their own file. It seemed odd to me as my service dates back to 1981 and spans 34 years through my retirement in 2015. It sure seemed to make more sense for me to give him copies of my military medical record pages that document the injuries as I'd already had them with me. He didn't want my copies. Anyone have any information on this. Much thanks in advance.-
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RichardZ, -
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Caluza Triangle defines what is necessary for service connection
Tbird posted a record in VA Claims and Benefits Information,
Caluza Triangle – Caluza vs Brown defined what is necessary for service connection. See COVA– CALUZA V. BROWN–TOTAL RECALL
This has to be MEDICALLY Documented in your records:
Current Diagnosis. (No diagnosis, no Service Connection.)
In-Service Event or Aggravation.
Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service”-
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Tbird, -
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Post in ICD Codes and SCT CODES?WHAT THEY MEAN?
Timothy cawthorn posted an answer to a question,
Do the sct codes help or hurt my disability ratingPicked By
yellowrose, -
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Post in Chevron Deference overruled by Supreme Court
broncovet posted a post in a topic,
VA has gotten away with (mis) interpreting their ambigious, , vague regulations, then enforcing them willy nilly never in Veterans favor.
They justify all this to congress by calling themselves a "pro claimant Veteran friendly organization" who grants the benefit of the doubt to Veterans.
This is not true,
Proof:
About 80-90 percent of Veterans are initially denied by VA, pushing us into a massive backlog of appeals, or worse, sending impoverished Veterans "to the homeless streets" because when they cant work, they can not keep their home. I was one of those Veterans who they denied for a bogus reason: "Its been too long since military service". This is bogus because its not one of the criteria for service connection, but simply made up by VA. And, I was a homeless Vet, albeit a short time, mostly due to the kindness of strangers and friends.
Hadit would not be necessary if, indeed, VA gave Veterans the benefit of the doubt, and processed our claims efficiently and paid us promptly. The VA is broken.
A huge percentage (nearly 100 percent) of Veterans who do get 100 percent, do so only after lengthy appeals. I have answered questions for thousands of Veterans, and can only name ONE person who got their benefits correct on the first Regional Office decision. All of the rest of us pretty much had lengthy frustrating appeals, mostly having to appeal multiple multiple times like I did.
I wish I know how VA gets away with lying to congress about how "VA is a claimant friendly system, where the Veteran is given the benefit of the doubt". Then how come so many Veterans are homeless, and how come 22 Veterans take their life each day? Va likes to blame the Veterans, not their system.Picked By
Lemuel, -
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Question
hurryupnwait
Has anyone completed the clinician's spine exam worksheet or have a copy of one that was completed by clinician.
Here is a copy. This seems like alot of stuff when the ratings schedule only uses Range of Motion or doctor prescribed bedrest.
Spine Examination
Spine
Name: SSN:
Date of Exam: C-number:
Place of Exam:
A. Review of Medical Records:
B. Present Medical History (Subjective Complaints):
Please comment whether etiology for any of these subjective complaints is unrelated to claimed disability.
1. Report complaints of pain (including any radiation), stiffness, weakness, etc.
1. Onset
2. Location and distribution
3. Duration
4. Characteristics, quality, description
5. Intensity
2. Describe treatment - type, dose, frequency, response, side effects.
3. Provide the following (per veteran) if individual reports periods of flare-up:
1. Severity, frequency, and duration.
2. Precipitating and alleviating factors.
3. Additional limitation of motion or functional impairment during the flare-up.
4. Describe associated features or symptoms (e.g., weight loss, fevers, malaise, dizziness, visual disturbances, numbness, weakness, bladder complaints, bowel complaints, erectile dysfunction).
5. Describe walking and assistive devices.
1. Does the veteran walk unaided? Does the veteran use a cane, crutches, or a walker?
2. Does the veteran use a brace (orthosis)?
3. How far and how long can the veteran walk?
4. Is the veteran unsteady? Does the veteran have a history of falls?
6. Describe details of any trauma or injury, including dates, and direction and magnitude of forces.
7. Describe details of any surgery, including dates.
8. Functional Assessment - Describe effects of the condition(s) on the veteran's mobility (e.g., walking, transfers), activities of daily living (i.e., eating, grooming, bathing, toileting, dressing), usual occupation, recreational activities, driving.
C. Physical Examination (Objective Findings): Address each of the following as appropriate to the condition being examined and fully describe current findings:
1. Inspection: spine, limbs, posture and gait, position of the head, curvatures of the spine, symmetry in appearance, symmetry and rhythm of spinal motion.
2. Range of motion
1. Cervical Spine
The reproducibility of an individual's range of motion is one indicator of optimum effort. Pain, fear of injury, disuse or neuromuscular inhibition may limit mobility by decreasing the individual's effort. If range of motion measurements fail to match known pathology, please repeat the measurements. (Reference: Guides to the Evaluation of Permanent Impairment, Fifth Edition, 2001, page 399).
i. Using a goniometer, measure and report the range of motion in degrees of forward flexion, extension, left lateral flexion, right lateral flexion, left lateral rotation and right lateral rotation. Generally, the normal ranges of motion for the cervical spine are as follows:
* Forward flexion: 0 to 45 degrees
* Extension: 0 to 45 degrees
* Left Lateral Flexion: 0 to 45 degrees
* Right Lateral Flexion: 0 to 45 degrees
* Left Lateral Rotation: 0 to 80 degrees
* Right Lateral Rotation: 0 to 80 degrees
There may be a situation where an individual's range of motion is reduced, but "normal" (in the examiner's opinion) based on the individual's age, body habitus, neurologic disease, or other factors unrelated to the disability for which the exam is being performed. In this situation, please explain why the individual's measured range of motion should be considered as "normal".
ii. If the spine is painful on motion, state at what point in the range of motion pain begins and ends.
iii. Describe presence or absence of: pain (including pain on repeated use); fatigue; weakness; lack of endurance; and incoordination.
iv. Describe objective evidence of painful motion, spasm, weakness, tenderness, etc.
v. Describe any postural abnormalities, fixed deformity (ankylosis), or abnormality of musculature of cervical spine musculature. In the situation where there is unfavorable ankylosis of the cervical spine, indicate whether there is: difficulty walking because of a limited line of vision; restricted opening of the mouth (with limited ability to chew); breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea; dysphagia; atlantoaxial or cervical subluxation or dislocation
b. Thoracolumbar spine
The reproducibility of an individual's range of motion is one indicator of optimum effort. Pain, fear of injury, disuse or neuromuscular inhibition may limit mobility by decreasing the individual's effort. If range of motion measurements fail to match known pathology, please repeat the measurements. (Reference: Guides to the Evaluation of Permanent Impairment, Fifth Edition, 2001, page 399).
It is best to measure range of motion for the thoracolumbar spine from a standing position. Measuring the range of motion from a standing position (as opposed to from a sitting position) will include the effects of forces generated by the distance from the center of gravity from the axis of motion of the spine and will include the effect of contraction of the spinal muscles. Contraction of the spinal muscles imposes a significant compressive force during spine movements upon the lumbar discs.
i. Provide forward flexion of the thoracolumbar spine as a unit. Do not include hip flexion. (See Magee, Orthopedic Physical Assessment, Third Edition, 1997, W.B. Saunders Company, pages 374-75). Using a goniometer, measure and report the range of motion in degrees for forward flexion, extension, left lateral flexion, right lateral flexion, left lateral rotation and right lateral rotation. Generally, the normal ranges of motion for the thoracolumbar spine as a unit are as follows:
* Forward flexion: 0 to 90 degrees
* Extension: 0 to 30 degrees
* Left Lateral Flexion: 0 to 30 degrees
* Right Lateral Flexion: 0 to 30 degrees
* Left Lateral Rotation: 0 to 30 degrees
* Right Lateral Rotation: 0 to 30 degrees
There may be a situation where an individual's range of motion is reduced, but "normal" (in the examiner's opinion) based on the individual's age, body habitus, neurologic disease, or other factors unrelated to the disability for which the exam is being performed. In this situation, please explain why the individual's measured range of motion should be considered as "normal".
ii. If the spine is painful on motion, state at what point in the range of motion pain begins and ends.
iii. Describe presence or absence of: pain (including pain on repeated use); fatigue; weakness; lack of endurance; and incoordination.
iv. Describe objective evidence of painful motion, spasm, weakness, tenderness, etc.
a. Indicate whether there is muscle spasm, guarding or localized tenderness with preserved spinal contour, and normal gait.
b. Indicate whether there is muscle spasm, or guarding severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis.
v. Describe any postural abnormalities, fixed deformity (ankylosis), or abnormality of musculature of back. In the situation where there is unfavorable ankylosis of the thoracolumbar spine, indicate whether there is: difficulty walking because of a limited line of vision; restricted opening of the mouth (with limited ability to chew); breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea; dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root involvement.
3. Neurological examination
Please perform complete neurologic evaluation as indicated based upon disability for which the exam is being performed. Please provide brief statement if any of the following (a-e) is not included in exam. For additional neurologic effects of disability not captured by a - e, (e.g. bladder problems) please refer to appropriate worksheet for the body system affected.
1. Sensory examination, to include sacral segments.
2. Motor examination (atrophy, circumferential measurements, tone, and strength).
3. Reflexes (deep tendon, cutaneous, and pathologic).
4. Rectal examination (sensation, tone, volitional control, and reflexes).
5. Lasegue's sign.
4. For vertebral fractures, report the percentage of loss of height, if any, of the vertebral body
5. Non-organic physical signs (e.g., Waddell tests, others).
D. For intervertebral disc syndrome
1. Conduct and report a separate history and physical examination for each segment of the spine (cervical, thoracic, lumbar) affected by disc disease.
2. Conduct a complete history and physical examination of each affected segment of the spine (cervical, thoracic, lumbar), whether or not there has been surgery, as described above under B. Present Medical History and C. Physical Examination.
3. Conduct a thorough neurologic history and examination, as described in C5, of all areas innervated by each affected spinal segment. Specify the peripheral nerve(s) affected. Include an evaluation of effects, if any, on bowel or bladder functioning.
4. Describe as precisely as possible, in number of days, the duration of each incapacitating episode during the past 12-month period. An incapacitating episode, for disability evaluation purposes, is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.
E. Diagnostic and Clinical Tests:
1. Imaging studies, when indicated.
2. Electrodiagnostic tests, when indicated.
3. Clinical laboratory tests, when indicated.
4. Isotope scans, when indicated.
5. Include results of all diagnostic and clinical tests conducted in the examination report.
F. Diagnosis:
G. Additional Limitation of Joint Function:
Impairment of joint function is determined by actual range of joint motion as reported in the physical examination and additional limitation of joint function caused by the following factors:
1. Pain, including pain on repeated use
2. Fatigue
3. Weakness
4. Lack of endurance
5. Incoordination
Do any of the above factors additionally limit joint function? If so, express the additional limitation in degrees.
Indicate if you cannot determine, without resort to mere speculation, whether any of these factors cause additional functional loss. For example, indicate if you would need to resort to mere speculation in order to express additional limitation due to repetitive use.
Edited by hurryupnwaitWhen I count my blessings I count my family and friends twice.
If you don't know where you are going, any road will get you there.
Well done is better than well said.
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