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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
Berta
As I mentioned before my POA has a short period of time left to respond to charges I filed against them with the OGC.
There was the illegal revocation of my POA and other charges that I put into a time line with exhibits to prove.
One charge was that the POA failed to present my initial Imos to the DRO although minutes before this confernce we discussed not only that he would do that ,we discussed considerable other evidence pertaining to my claim that the VA had ignored in a sameo sameo De novo review.
The conference was set up by the VSM because I asked her to CUE the sameo sameo so called de novo review.
The rep (due to screw up between this local POA and his office)took the IMO from my C file before the conference. He told me he was sure he would walk out of the conference with an award.
He also told me to send him as well as the local rep copies of everything I had ( that all has been destroyed- not "maintained" was how he put it)
I responded to the SSOC this conference produced that again failed to consider the Medical evidence and my IMos, attaching the Imos again to the response.Nothing I discussed with the vet rep nor my IMos or anything else was brought up-in a "lengthy" conference- I dont know what they talked about.The SSOC itself is my evidence that the rep failed to do what he was supposed to do.
Within days of receipt of that response however the VSM had a conference herself with someone from my POA (maybe this same rep)and they decided to use my response as a formal I-9 and immediately (I didnt find this out for 6 more months)started the transfer process to the BVA.
I had 60 days to file the formal I-9 and mailed it,a few weeks after sending the response to the SSOC, returning to find in my mailbox the odd letter about my SSOC response being used as my appeal.
I got a remand right away-
and had even discussed my I-9 with Ron Abrams, attorney for NVLSP and he was glad I had posted at hadit what he recommends putting on this important form. It is under the search feature.
He also -in another conversation -told me I took the right steps in getting the fast remand.He was so right there.My POA refused to help me with it or support it.They were shicvked when I got it and then filed a 4138 so it would look like they got it for me-one rep told people at the RO he himself got a client a fast remand meaning me.Not true at all.
Question
Isnt it highly unusual for the VA (the VSM and someone from my POA agreed to this)to accept a SSOC response as a formal I-9?
Particularly when the VA itself determines the time limit for an I-9?
I asked the VSM today to respond in writing telling me the regulation she used to do this.
I sent the BVA the I-9 myself and they remanded in a few weeks and I chalked this incident up at the time to one more bizarre thing that happened between my POA and the VA regarding my claim-
(such as within days after the remand a rep from NYSDVA told me he heard the VA was getting another VA opinion- the files were still in the mailroom and nothing from VA yet has indicated that in almost 2 years. The VA doesnt work that fast.They havent done a thing with my remanded claim at all- 2 years in September.)
I think those dopes thought they could revoke my POA because I had sent a SSOC response in -never considering that the formal I-9 was sent in within a few weeks of the SSOC decision.
And the rep who revoked didnt even know that someone (maybe him) had agreed to use the SSOC as the I-9 with the VSM.(documented from the VSM herself in a letter to me)
My I-9 was filed properly and on time.I have no concern about that (unless that was mysteriously removed from my C file-)
The POA just found out that I had checked my I-9 with Ron Abrams of NVLSP-and it complied fully with the regs as well as Ron's suggestions in the VBM.
Is there some reg I never heard of that would allow the VA to use something other than an I-9 for an appeal?
I felt if I had let that go as the VSM and rep agreed to-and had not filed the formal I-9-
the BVA could have legally said years down the road that the SSOC response was completely unacceptable as a formal appeal.
Has anyone here ever sent in evidence that was ignored in a SSOC only to find that-although they have plenty of time to file the I-9 on the decision-the VA tried to turn their response into the formal I-9?
The more I look into my situation -the more it appears that NYSDVA and the RO agreed to do what seems against proper established VA case law.
If I had not sent the BVA my I-9 myself to request the remand- I could have found myself with a denial at the BVA solely due to not sending in a formal I-9.
Any comments?
I have seen appeals rejected by the BVA because they were not in a specific I-9 format.
Or the I-9 was not timely.
Would any of you believe that this idea of the VSm and my POA would have been an acceotable I-9 to the BVA?
Edited by BertaGRADUATE ! Nov 2nd 2007 American Military University !
When thousands of Americans faced annihilation in the 1800s Chief
Osceola's response to his people, the Seminoles, was
simply "They(the US Army)have guns, but so do we."
Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.
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