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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
hurryupnwait
I have bilateral sciatica, would it fall under this regulation and could someone explain how this works, it does not compute in my head.
[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR4.26]
[Page 374]
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
PART 4_SCHEDULE FOR RATING DISABILITIES--Table of Contents
Subpart A_General Policy in Rating
Sec. 4.26 Bilateral factor.
When a partial disability results from disease or injury of both
arms, or of both legs, or of paired skeletal muscles, the ratings for
the disabilities of the right and left sides will be combined as usual,
and 10 percent of this value will be added (i.e., not combined) before
proceeding with further combinations, or converting to degree of
disability. The bilateral factor will be applied to such bilateral
disabilities before other combinations are carried out and the rating
for such disabilities including the bilateral factor in this section
will be treated as 1 disability for the purpose of arranging in order of
severity and for all further combinations. For example, with
disabilities evaluated at 60 percent, 20 percent, 10 percent and 10
percent (the two 10's representing bilateral disabilities), the order of
severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent and
the 68 and 20 to 74 percent, converted to 70 percent as the final degree
of disability.
(a) The use of the terms ``arms'' and ``legs'' is not intended to
distinguish between the arm, forearm and hand, or the thigh, leg, and
foot, but relates to the upper extremities and lower extremities as a
whole. Thus with a compensable disability of the right thigh, for
example, amputation, and one of the left foot, for example, pes planus,
the bilateral factor applies, and similarly whenever there are
compensable disabilities affecting use of paired extremities regardless
of location or specified type of impairment.
(:) The correct procedure when applying the bilateral factor to
disabilities affecting both upper extremities and both lower extremities
is to combine the ratings of the disabilities affecting the 4
extremities in the order of their individual severity and apply the
bilateral factor by adding, not combining, 10 percent of the combined
value thus attained.
© The bilateral factor is not applicable unless there is partial
disability of compensable degree in each of 2 paired extremities, or
paired skeletal muscles.
When 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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rentalguy1
I stand corrected...the BVA has granted for both left and right sided sciatica, concurrently. BVA Case Granting Bilateral Sciatica Bilateral Factor: left sciatic granted at 10%, right sciatic g
hurryupnwait
So, a rating of 20% for both legs would be 20 + 20 = 36 x 10% = 3.6 + 36 = 39.6 Paul
7 answers to this question
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