ISSUE(S): CUE; Credibility of testimony; Adequacy of VA examination
ACTION BY COURT: Remand DECISION DATE: 11/5/92
BEFORE JUDGES: Nebeker, Kramer and Ivers
Significant Point(s): The Board is not free to disregard its own regulations and is "required to apply all relevant statutes and regulations appropriate to the particular case before it."
Facts: On 5/6/77, while on active duty for training, the veteran slipped and fell, tearing a rotator cuff in his right shoulder. On 12/4/78, while on ACDUTRA, he aggravated a preexisting sciatic muscle injury while lifting a power cable. In February 1980, service connection was granted for the right shoulder condition and denied for a back injury. In 1981, BVA upheld the assigned evaluation of 20% for the right shoulder and the denial of service connection for a back condition. In June 1989, the evaluation for the right shoulder was increased to 30% and secondary service connection was denied for left impingement syndrome; the RO also denied service connection for a low back injury with residuals of a low back strain. BVA upheld the decisions in August 1991.
Court Analysis: The Court affirmed the BVA's finding that a 30% rating for the appellant's right shoulder condition was warranted. When considering the issue of service connection for a lower back condition, BVA failed to address appellant's and his wife's testimony and medical evidence as documented by the record. The Court also found that the VA examination for this issue was inadequate. This issue was remanded to conduct a thorough and comtemporaneous medical examination and to address the other inadequacies of the record. In review of the left shoulder claim, the Court found that BVA rejected two VA physicians' statements linking the left shoulder condition to the service-connected right shoulder condition with "its own unsubstantiated medical conclusions." The Court, however, also pointed out its Leopoldo decision which found that VA regulations and statutes do not provide disability compensation for aggravation of a non-service-connected condition by a service-connected condition. This issue was remanded for readjudication. The Court also found that the appellant had submitted a well-grounded claim for individual unemployability that had not been addressed by VA. Since the appellant had served continuously for more than 90 days during a period of war, BVA should also have adjudicated appellant's eligibility for a nonservice-connected pension.
The Board raised an issue of CUE in the previous 1981 BVA decision. Having recognized in its January 1991 remand that the VA had not previously considered certain facts concerning appellant's period of service, the Board raised, and was required to follow through and adjudicate, the CUE issue. On remand, the Board will make a determination on the CUE issue.
RECOMMENDED VBA ACTION(S): None. The Court's findings concerning inadequacies in the VA examination, failure to address credibility of testimony, failure to address medical evidence, and failure to address issues raised by the claimant have been previously covered in prior decisions. Failure to address a CUE issue which it raised on its own motion is a matter solely for the Board in this case. No changes to VBA policy, regulations or procedures is required.
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.
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.
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”
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.
Question
allan
DECISION ASSESSMENT DOCUMENT
DOCKET NO.: 91-1868 ACTIVITY: RATING
NAME: Stanton v. Brown
ISSUE(S): CUE; Credibility of testimony; Adequacy of VA examination
ACTION BY COURT: Remand DECISION DATE: 11/5/92
BEFORE JUDGES: Nebeker, Kramer and Ivers
Significant Point(s): The Board is not free to disregard its own regulations and is "required to apply all relevant statutes and regulations appropriate to the particular case before it."
Facts: On 5/6/77, while on active duty for training, the veteran slipped and fell, tearing a rotator cuff in his right shoulder. On 12/4/78, while on ACDUTRA, he aggravated a preexisting sciatic muscle injury while lifting a power cable. In February 1980, service connection was granted for the right shoulder condition and denied for a back injury. In 1981, BVA upheld the assigned evaluation of 20% for the right shoulder and the denial of service connection for a back condition. In June 1989, the evaluation for the right shoulder was increased to 30% and secondary service connection was denied for left impingement syndrome; the RO also denied service connection for a low back injury with residuals of a low back strain. BVA upheld the decisions in August 1991.
Court Analysis: The Court affirmed the BVA's finding that a 30% rating for the appellant's right shoulder condition was warranted. When considering the issue of service connection for a lower back condition, BVA failed to address appellant's and his wife's testimony and medical evidence as documented by the record. The Court also found that the VA examination for this issue was inadequate. This issue was remanded to conduct a thorough and comtemporaneous medical examination and to address the other inadequacies of the record. In review of the left shoulder claim, the Court found that BVA rejected two VA physicians' statements linking the left shoulder condition to the service-connected right shoulder condition with "its own unsubstantiated medical conclusions." The Court, however, also pointed out its Leopoldo decision which found that VA regulations and statutes do not provide disability compensation for aggravation of a non-service-connected condition by a service-connected condition. This issue was remanded for readjudication. The Court also found that the appellant had submitted a well-grounded claim for individual unemployability that had not been addressed by VA. Since the appellant had served continuously for more than 90 days during a period of war, BVA should also have adjudicated appellant's eligibility for a nonservice-connected pension.
The Board raised an issue of CUE in the previous 1981 BVA decision. Having recognized in its January 1991 remand that the VA had not previously considered certain facts concerning appellant's period of service, the Board raised, and was required to follow through and adjudicate, the CUE issue. On remand, the Board will make a determination on the CUE issue.
RECOMMENDED VBA ACTION(S): None. The Court's findings concerning inadequacies in the VA examination, failure to address credibility of testimony, failure to address medical evidence, and failure to address issues raised by the claimant have been previously covered in prior decisions. Failure to address a CUE issue which it raised on its own motion is a matter solely for the Board in this case. No changes to VBA policy, regulations or procedures is required.
APPROVED
J. Gary Hickman, Director
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