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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
The VA website explains that some widows did not get paid because the VA didn’t always know they had a surviving spouse.
http://www.vba.va.gov/survivorsbenefit.htm
VA to Provide Payments to Eligible Surviving Spouses
“Because VA does not always know if a veteran is survived by a spouse, some surviving spouses have not received the month-of-death benefit to which they are entitled.”
However, those who have read the news know about the “computer glitch.”
The explanation of the computer glitch is that the VA never updated its automated computer systems, which sends out checks and notification letters. As a result, spouses were either denied the final month of payment or asked to send the checks back. If the checks were already deposited or spent, the U.S. Treasury moved to seize the money directly from their accounts.
However, I don’t see a computer glitch causing the major problem. I see the problem caused by the VA employees not following their own procedures.
The “computer glitch” is merely the tip of the iceberg. The problem is much deeper than that.
Shall was say a VA "human employee glitch?" Would it be more effective for them to update the humans, instead of the computers?
When I called the VA to report my husband’s death, I was told that there is no payment for the surviving spouse for the month of death.
Computer glitch? Human Glitch?
However, I DID receive the letter the "computer glitch theory" says were not sent out.
I DID receive the notification letter. The letter clearly stated that if you were the surviving widow, you could be entitled to the month of death payment. It said if you are the surviving spouse you may be entitled to the last payment and call the toll-free number. The computer DID its job.
So I called the VA number. And just like my first call, the VA employee told me there was no such thing as the widow getting the last payment that was due the veteran. Computer glitch? Doesn't seem like it.
I checked the regulations and called again, and was once again told there was no such thing as the widow being entitled to a month of death payment. I had to actually read her the letter, before she believed me.
Then she changed her mind...and said I got to keep it -- But then she decided I should fill out something -- but couldn't decide what - so they wouldn't take the money back. Computer glitch? It doesn't seem like it.
The computer sent the required letter. The humans the letter instructed me to call didn’t know:
1. That the widow was entitled to the payment.
2. What paperwork to fill out to process the month of death claim.
The regulations CLEARLY tell the RO what to do. THEY are supposed to complete the VA Form 119 - to let Finance know NOT to reclaim the money - or if it has been reclaimed already - have finance issue a check.
The regulation M21-1, Part IV 26.02. states:
http://www.warms.vba.va.gov/admin21/m21_1/...4/chg216err.doc
(a) Requests over the phone must be recorded on VA Form 119, “Report of Contact” and the caller must provide oral verification satisfactory to the veteran’s service representative that the caller is the surviving spouse.
The manual TELLS them what to do:
(2) Use a locally generated letter to send one of two possible messages, depending on whether TINQ
(Treasury Inquiry) shows that the veteran’s check or direct deposit has been returned, either:
(a) We will re-issue payment to you; or
(Since you are entitled to the veteran’s payment for the month of death, you are not required to return the check or direct deposit.
(3) In either instance, send the claims folder to Finance with the following notation on OF 41:
“Surviving spouse entitled to 1-time payment of [amount of monthly compensation or pension received by the veteran at time of death] per 38 CFR 3.209©.” If payment has been returned, request Finance to re-issue the payment to the surviving spouse (06A transaction). If payment has not been returned, notify Finance that the overpayment should be removed (08E transaction). Input of the 08E transaction must be accomplished within 45 days of the debt being established. The finance activity must notify the Debt Management Center (DMC) of the action so that they can stop the reclamation process. If the debt has been in the system for 60 days, DMC cannot stop the reclamation process when the finance activity inputs the 08E transaction.
I asked the VA employee to fill out a VA 119, but she told me the 119 was an “in house” form. So instead of doing HER job and filling out the in-house form that the regulations direct them to fill out – she told ME to send in a Statement in Support of Claim – telling them I was entitled to keep the month of death payment.
She informed me that this would keep them from reclaiming the money.
As instructed I filled out the Statement and sent it in. And at least the VA employee wasn't bothered with having to fill out the "in-house" Form 119 that the regulations direct them to fill out when the widow responds to the notice the computer sends out telling her to call.
I guess the "glitchy computer" didn’t read my Statement in Support of Claim because three months later I checked my bank account balance and found that there was a hold on $225 of my funds.
I called the bank to find out why there was a hold placed on the money and they didn’t know. They did some research and found out that the VA had put a hold on the money – the first step in the reclamation process. On May 20, 2007 - three and a half months after my husband died, the VA froze the funds in my personal bank acount without either the VA or the bank so much as notifying me they were doing so.
I contacted the VA and was informed there was no evidence in the record that I was my husband’s widow – despite the fact I sent our marriage license in the same envelope with the Death Certificate, and despite the fact that the Death Certificate itself lists me as the widow.
I re-sent the Death Certificate and the Marriage License.
After I “established” that I was, indeed, my husband’s widow with the VA - the VA informed me that they had no way to stop the reclamation process. But they did inform me that they would reclaim the money from my bank account and issue me a check for that amount.
Two months later - in July, the VA had still not reclaimed the money. Nor did they release the hold. So the money remained in my bank account, but unavailable for me to spend. The bank informed me that the VA could keep an indefinite hold on the money until they decided to reclaim the money or release the hold. Government holds do not have a deadline.
In the meantime, the VA couldn’t issue me a check for the reclaimed money, as they hadn’t reclaimed the money – so they just let the money sit in my bank account - but blocked my access to it.
I do not know what “computer glitch” would be responsible for that – but the humans I contacted were not very helpful.
I finally contacted the VA and informed them that as it had been over six months since my husband died I would like for them to either reclaim the money or release their hold on it.
Though their response informed me they couldn’t do either – that the process was already in action for whatever it was “supposed to do” someone (either a computer or a human) finally reclaimed the money in mid-August 2007
I then sent in a request to be issued a check for my husband’s month of death payment, as I had been informed I could receive a check once the VA reclaimed the money.
I was then informed that as I had now filed a DIC claim, that the issue of whether I was “entitled” to the month of death payment could not be decided until the VA processes my DIC claim.
Isn’t it ironic that the VA would hold up the month of death payment (that every widow is entitled to) for widows who claim their husband’s death is service connected?
If your husband’s death is not service connected, you can get the money (supposedly) promptly. But if your husband’s death is service connected, they can’t make a decision that you are "entitled" to the month of death payment (that is the right of every widow) until they decide if the death is service connected.
It is a rather odd way of applying their motto “To care for him who shall have borne the battle and for his widow, and his orphan.”
When finally got a copy of my husband’s C-file (requested June 20, 2007 – finally received May 22, 2008 - after multiple requests) – I found a Finance Operations Form stating that I was entitled to the one time payment of my husband’s last check and instructing them to remove the overpayment transaction (i.e. to NOT reclaim the money from my bank account). This was dated June 28, 2007 – a month and a half before the VA reclaimed the money from my bank.
I sent an IRIS to finance on May 29 2008, stating:
“I previously submitted a claim to be allowed to keep my husband's month of death payment. Upon receipt of my husband's C-file, I found that a transmittal form was sent to Finance Operations on 6-28-2007 that states "Surviving Spouse entitled to one time payment of amt of comp or pen received by veteran at time of death. Remove overpayment (08E Transaction) if payment is not returned. 38 CFR 3.20©"
However, these funds were reclaimed from my checking account in August 2007.As these funds were taken out of my bank account 2 months after the overpayment transaction was supposed to be removed, what is the procedure for being repaid the funds that were taken from my account in error? Thank you,XXX”
The VA responded:
Mrs. xxxx:
I will forward your inquiry on for processing.
Sincerely,
Matthew xxx
Again - The manual TELLS them what to do:
returned, either:
(3) In either instance, send the claims folder to Finance with the following notation on OF 41:
“Surviving spouse entitled to 1-time payment of [amount of monthly compensation or pension received by the veteran at time of death] per 38 CFR 3.209©.” If payment has been returned, request Finance to re-issue the payment to the surviving spouse (06A transaction).
It is now January 2009. I have still not received the month of death payment for my husband’s February 5 2007 death. Nor have I received any follow up from the VA on the issue.
What computer glitch caused this? The computer actually did do its job. It sent me the notice. It was the VA employee human errorsthat created the ongoing problem. These include:
a.) Informing me that widows aren’t entitled to month of death payment
b.) Failing to establish in the record that I was the widow though it was clearly noted on the Death Certificate.
c.) Refusing to fill out form VA 119 to stop the reclamation process when I called in response to the VA letter – as VA procedures direct them to do.
d.) Failing to follow up on my Statement in Support of Claim asking to be granted the month of death payment that I sent in per VA instructions.
e.) Failing to follow up on my multiple IRIS submissions asking to be paid my entitlement of my husband’s last payment.
f.) Failing to follow up on their own finance transmittal in my file by stopping the reclamation process OR issuing me a check when the money was reclaimed in August 2007, as the transmittal and their procedures directed.
g.) Failing to follow up and issue me a check even after I sent them an IRIS in May 2008 directing them to the exact date(June 28, 2007) and exact form (The Finance Operations transmittal form) that stated I was entitled to the payment.
I understand that I have to follow up on this once again. However, I have been so busy with other matters that I haven’t taken the time to do so – mostly because I know it will not be as easy as just sending the request and having it appropriately handled. I have to wait until I have time to deal with the multiple IRIS’s, the multiple excuses, the multiple times the VA says they didn’t get what I sent – or that they lost it - and all the other problems that asking for anything from the VA seems to generate.
And I am still dealing with the follow up to the VA losing my claim for burial benefits (more than once), and then just sending a partial payment because they say that there is no evidence that I incurred any plot expenses, the VA insisting they didn’t receive the evidence I sent within one year of the VCAA notice (though I have signed certified mail receipts showing that they didreceive it – and I sent them an IRIS when I sent the evidence, specifically telling them that I sent the evidence and the certified mail receipt number), the VA dismissing my NOD as “untimely” though it was sent and received within the legal timeframe, and the VA still not providing me with the medical opinion they used to deny my DIC claim – despite the fact that I have repeatedly asked for it mulitple times for over a year.
THAT should be as simple as meeting my request. The denial letter refers to a medical opinion received by the VA. I would like to receive a copy of that opinion, as I need it to obtain an IMO to support my claim. The opinion is not in copy of the claim file I was sent. It should be as easy as - Find the opinion. Send it.
But no, the VA wants ME to provide them with the physician’s name and the date of the opinion to “help with their research.” How am I supposed to provide them with information that is on the document I did not receive to assist them in finding the document? The information they say they need to FIND the document is ON the document they have not sent me! (Does the computer know about this?)
But if I get an IMO that does not address that opinion – they can dismiss my IMO, as it didn’t address the evidence “of record.”
So following up on the month of death payment has not been on the top of my priority list, as I need to get other things that are caught in the tangled web of the VA straightened out that are more important.
And because I have no reason to believe that one more request that the situation will be resolved will be handled any more efficiently than all my previous requests have.
Should a widow have to follow up time and time and time again to get her $225 back from the VA? Shouldn’t it have been handled right in the first place – when the “glitchy computer” did send me the notice informing me I might be entitled to the month of death payment – and I did follow up on the notice? (But still had to READ the letter to the VA employee, because she kept insisting that there was no such thing as the widow being entitled to the last payment due the veteran).
Or shouldn’t it have been handled when I sent them the IRIS letting them know the VA had reclaimed the money and I wanted my check? Or shouldn’t it have been handled when I informed them eight months ago that my file even shows I should be sent the payment, but that the payment was never sent?
How many times does the VA require a widow has to beg for what she is legally entitled to? Hopefully after I beg a few more times – the VA will deem me "deserving enough" of my husband’s month of death payment to care for the “widow and orphan” and give my $225 back.
The “computer glitch” is merely the tip of the iceberg. It is so much deeper than that.
Edited by free_spirit_etcLink to comment
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