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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
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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
free_spirit_etc
Does anyone know if DESHOTEL (July 27, 2006) has over-ruled the below?
http://www.va.gov/vetapp04/files/0405741.txt
In February 2002, the veteran's representative argued that
service connection on a secondary basis for obesity and for
lower back arthritis was warranted. In August 2002 the
veteran's representative again suggested that the veteran's
obesity was secondary to service connected disability. The
Board notes in passing that while service connection on a
direct basis for low back disability has been denied on
numerous occasions, service connection on a secondary basis
under 38 C.F.R. § 3.310 for low back disability has never
been adjudicated by VA.
The United States Court of Appeals for Veterans Claims has
held that two issues are "inextricably intertwined" where
they are so closely tied together that a final decision
cannot be rendered unless both issues have been considered.
Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).
The Deshotel case states:
"Where the veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. We considered this exact issue in Andrews
F.3d 1278 (Fed. Cir. 2005), although the argument regarding a pending
claim was made there by the government rather than the veteran."
But it also states:
"Relying on Roberson, 251 F.3d at 1383-84, we held that where an RO renders a decision on a veteran’s claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO’s failure to address the implied claim “is properly challenged through a CUE motion,” not a direct appeal.3"
The reason I am asking is because this is similar to my husband's "two-pronged" claim for lung cancer:
1. That is was a DIRECT service connection - as it STARTED in the service.
2. That it was a SECONDARY connection in that is was related to his in-service asbestos exposure.
The RO denied the claim on asbestos exposure - and even CHANGED the claim -
The initial letter from the VA stated “We have received your claim for service connection for lung cancer, to include as secondary to asbestos exposure.”
The February 2003 denial letter stated Decision: “Service connection for adenocarcinoma, left lung, due to asbestos exposure is denied.” However, it did not address the issue of direct service connection.
But they NEVER addressed the DIRECT service connection issue, except to mention that his cancer was not diagnosed in Service nor within his presumptive period.
However: §3.303(d) clearly states “Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.
And §3.307 (c.) states: “Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”
(His 3.2 cm tumor was discovered one year after the presumptive period).
So my questions are:
1. Does the 2004 BVA case above apply?
As the two issues were "inextricably intertwined" where
they are so closely tied together that a final decision
cannot be rendered unless both issues have been considered.
(I know a BVA case isn't a precedent - but the case THEY cite is)
3. Or does the July 2006 Deshotel case in Federal Court supercede that?
4. If the Deshotel case does supercede, since my husband requested the VA adjudicate his unajudicated claim for DIRECT Service connection PRIOR to the July 27 Deshotel decision -he kept telling them "I applied for DIRECT connection - you have NOT ADDRESSED that!" do the pre-Deshotel decisions apply to this aspect of his case?
5. As the Deshotel case states "where an RO renders a decision on a veteran’s claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO’s failure to address the implied claim “is properly challenged through a CUE motion,” not a direct appeal.3" - is that saying that the failure to address one of the claims is in and of itself a CUE?
I think we would still have a CUE on failure to apply §3.303(d) And §3.307 (c.)
Because §3.303(d) Post-service diagnosis of disease SPECIFICALLY addresses diseases which were diagnosed AFTER service - and doesn't give the VA the authority to simply dismiss Direct Service connection with the excuse that it wasn't diagnosed in service - without giving medical rational for why the post-service diagnosis would preclude it from being Service Connected.
Also And §3.307 (c.) states: “Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”
I would think this would be DIFFERENT than a Failure in Duty to Assist - in that they did not DEVELOP the claim as directed by law - looking over the evidence OF RECORD to look at it in the light of subsequent developments.
So once again, failing to address why medical evidence of record would preclude Service Connection of a disease that was diagnosed AFTER the presumptive period -could be a CUE - because section §3.307 (c.)sets out specifically what the VA is supposed to do if a chronic condition is diagnosed AFTER the presumptive period (which automatical ASSUMES that it was not diagnosed WITHIN the presumptive period.)
So once again, a simple "your disease wasn't diagnosed within the presumptive period" doesn't show any attempt to consider and apply the LAWS that SPECIFICALLY tell them what to do if a disease is diagnosed after such time.
But does anyone know if according to Deshotel - failure to adjudicate an issue is a CUE on its own right?
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