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Raising All Issues For Entitlement


Berta

Question

Courtesy of Colonel Dan-

this might explain better a point I have made here recently-

a veteran or widow can raise any potential reason to grant service connection.

They are never locked into just one reason-if they have any way to support additional avenues of entitlement-they should make claim as to each reason.

"a good source for finding a veteran's lawyer is http://www.vetadvocates.com/ look for membership listing on left side of page

http://www.pva.org/site/PageServer?pagename=rights_gc

These two ref's are listed at the bottom of the above page

SOAR is a quarterly pub put out by PVA and provides a lot of info

on recent cases.... it is worth reading by vet advocates & attys

SOAR, the Service Officers Appeals Report, is a quarterly newsletter providing information on cases at the Board of Veterans' Appeals, Veterans Court, and Court of Appeals for the Federal Circuit; opinions and rulemaking of the Department of Veterans Affairs; judicial review; and other issues of concern to Paralyzed Veterans service officers.

Read the latest issue of SOAR.

Tommy, the award-winning newsletter for the Veterans Law Section of the Federal Bar Association, is the leading forum for veterans law issues.

Read the latest issue of Tommy.

Establishing Service Connection

T

here is a little known but important

alternative for veterans who

want to establish direct service

connection: A veteran may present evidence

to VA demonstrating a medical

relationship between an in-service incident

and his or her current disability.

Before Congress created the

Veterans Court in 1988, the VA decided

claims for direct service connection

under two theories. First, VA evaluated

the veteran’s service medical records to

see if they disclosed evidence that the

veteran incurred a chronic disease or

injury during his or her military service.

Second, VA evaluated the record

to see if evidence existed that showed,

after service discharge, “continuity and

chronicity” of signs or symptoms noted

during the veteran’s military service.

Under opinions of the Veterans Court,

a third legal theory exists for establishing

direct service connection for a disability

incurred in or aggravated by military service.

A veteran whose service medical

records do not contain evidence establishing

the existence of a chronic disease or

injury during military service or who is

unable to present evidence establishing

continuity or chronicity of signs or symptoms

during military service may nevertheless

be able to establish entitlement to

direct service connection by demonstrating

that a medical relationship exists

between an in-service incident and the

veteran’s current disability.

The case of Douglas v. Derwinski, 2

Vet.App. 103, 108-109 (1992) (Douglas

I), stands for the proposition that a claim

for direct service connection for skin cancer

(or for any other illness or injury) is

not legally invalid if evidence of it did not

manifest during service or within one

year thereafter. Consequently, the development

of a cancerous growth or of multiple

growths years after service does not

eradicate the veteran’s potential for recovery

under 38 U.S.C.A. § 1110 (West

2002) and 38 C.F.R. § 3.303(a) (2006).

The Veterans Court reaffirmed the

holding of the Douglas opinion in these

cases: Godfrey v. Derwinski, 2 Vet.App.

352, 356 (1992) (If evidence demonstrates

a medical relationship between an

in-service incident and current disability

“it would follow that the veteran incurred

an injury in service”); Douglas v.

Derwinski, 2 Vet.App. 435 (May 21,

1992) (en banc) (Douglas II) (Court reaffirms

holding in Douglas I relating to test

for direct service connection); Cosman v.

Principi, 3 Vet.App. 503, 505 (1992)

(“according to [3.303(d)], even though a

veteran may not have had a particular

condition diagnosed in service or for

many years afterwards, service connection

can still be established”) (emphasis

added); Triplette v. Principi, 3 Vet.App.

370, 375 (1992) (“If…the veteran’s schizophrenia

did not manifest itself within the

statutory presumpti[on] period, he may

establish service connection by submitting

direct evidence”); Godfrey v.

Derwinski, 2 Vet.App. 352, 356 (1992)

(evidence showing a nexus between a veteran’s

current disability and the veteran’s

military service is sufficient to establish

service connection).

Adjudication Tips

These opinions create a

favorable

legal standard

that VA should employ

when adjudicating claims for direct service

connection. If your service medical

records fail to establish the existence of a

chronic disease or injury during service

and you lack sufficient evidence to prove

“continuity and chronicity” of symptomatology,

utilizing these court precedents

may enable you to receive direct service

connection. You can strengthen your

claim by submitting

medical evidence

that unequivocally

links your claimed

disability to military service. "

!

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  • HadIt.com Elder

It seems like part of the VA's duty to assist would demand that the VARO would help the claim not hide behind loopholes and information that people with new claims would need to have to support a claim.

The VA is lousy in many areas but the worse is telling a Veteran that they may have a claim and how to ask for it..

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Pete _ I agree-

the VCAA was supposed to tell any claimant exactly what is what-the Ultimate duty to assist and ROs have crapped all over this reg.

and what you said is true too as to depending on VA to identiy a claim.

I sure would not depend on them to find a way to service connect because I think if they cant see the claim as obviously direect SC they just deny it.

In my Case the RO filed a re-open Motion at the BVA last year and then sent me VCAA letter on a claim I am not even interested in.

The claim with the most medical evdience was filed a year and half before this one that they seem to be fixated on.

They do have to address all the issues I raised as to service connection-but the claim they focused on would take another IMO from me.

If I am going to spend thousands more (I spent 4000 so far for my 2 IMOs) I would prefer to do that regarding my main issue they already have the 2 IMOs on.

The VA itself is supposed to consider any potential theory entitlement to SC.

But I sure think the vet should state the theories themselves to VA as I dont think the ROs are reading beyond age one of our stuff in most cases-as the IG said in 2005-they dont have time to read the claims properly-

so how would the RO have time to even consider more than one theory of entitlement?

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