Help - Help

[carlie]

OK - the way I've always understood this is :

To establish service connection, the record must contain:

(1) medical evidence of a current disability,

(2) medical evidence, or in certain circumstances, lay testimony, of in-

service incurrence or aggravation of an injury or disease,

and

(3) medical evidence of a nexus between the current

disability and the in-service disease or injury.

In other words, entitlement to service connection for a particular

disability requires evidence of the existence of a current

disability and evidence that the disability resulted from a

disease or injury incurred in or aggravated during service.

BUT...........

A notice of denial I got from VARO dated Nov 15, 1978 states:

Your disability compensation claim has been carefully considered.

To establish entitlement to this benefit, the evidence must show:

(a) that you have a disability incurred or aggravated in service,

in line of duty; and (b) must be 10 percent or more disabling.

Question:

Does anyone know if this was truly the correct criteria for establishing

service connection in 1978 - that a disability had to be 10 percent or more disabling ?

Still preparing for BVA Hearing this Friday AM.

Thanks,

carlie

Edited September 16, 2009 by carlie

[hurryupnwait]

OK - the way I've always understood this is :

To establish service connection, the record must contain:

(1) medical evidence of a current disability,

(2) medical evidence, or in certain circumstances, lay testimony, of in-

service incurrence or aggravation of an injury or disease,

and

(3) medical evidence of a nexus between the current

disability and the in-service disease or injury.

In other words, entitlement to service connection for a particular

disability requires evidence of the existence of a current

disability and evidence that the disability resulted from a

disease or injury incurred in or aggravated during service.

BUT...........

A notice of denial I got from VARO dated Nov 15, 1978 states:

Your disability compensation claim has been carefully considered.

To establish entitlement to this benefit, the evidence must show:

(a) that you have a disability incurred or aggravated in service,

in line of duty; and (;) must be 10 percent or more disabling.

Question:

Does anyone know if this was truly the correct criteria for establishing

service connection in 1978 - that a disability had to be 10 percent or more disabling ?

Still preparing for BVA Hearing this Friday AM.

Thanks,

carlie

Hi Carlie

You may find what you are looking for here.

Legislative History of VA compensation

Paul

P. S. Sorry I just noticed that this doc is 108 pages long

Edited September 16, 2009 by hurryupnwait

[cowgirl]

Carlie, the words say 'this benefit' - its seems directed to a specific or particular condition. Coulda been a pat answer they used back then. They sure twist the words disabling and disability into generic garble imho. Wonder why really assign 0% as a disability at all if not 'disabling'?

Will keep reading for answers when possible,

Best to ya,

CG

To establish entitlement to this benefit, the evidence must show:

(a) that you have a disability incurred or aggravated in service,

in line of duty; and ( ;) must be 10 percent or more disabling

Edited September 16, 2009 by cowgirl

[jbasser]

I do not think so. The term is direct service connection and presumptive connection. A presumptive issue must be 10 percent disabline within the presumptive time period.

Is that the total sentence you received. If it is, You may have a future cue.

J

[broncovet]

Carla

I think what that means is to be compensable, your disability has to be 10%. I am not sure if they had 0% ratings back then or not. It sounds like your decision is saying that your disability has to be 10% to be compensable, as we all know 0% ratings are non compensable. Today, of course, we know there is a difference between a denial and service connection at 0%..for one thing, I think if you have two 0% ratings, they combine to 10%.

Also, a zero percent rating establishes service connection which is important, as it is easier to get an increase in the percentage than it is to establish SC.

Finally, a zero percent rating, for example, may make you eligible for other benefits..such as hearing aids, VA medical care, etc.

The above differences between 0% rating and a denial, may not have been applicable in 1978.

I think the distinction there is that if your disability is LESS than 10%, you wont get any compensation.

Although I certainly agree that you want to thoroughly prepare, I am gonna suggest you not worry too much about the many changes in Va regs that have occurred since 1978..just proceed as if the regulations were the the "most favorable" to you, as the regulations, even back then, required them to "favor the Veteran".

Edited September 16, 2009 by broncovet

[jbasser]

3.304 and 3.309. The regs were misquoted to you. It does not say 10 percent it says compensable.

The document you have is a blatent in writing lie. These regs have not changed since 1947.

Challenge the living hell out of it at your hearing.

Then when your done, consider a cue for the retro as this is not how evidence is weighed it is a misinterpetation of the regs.

Remember you are in an area of the VA that bears legal precedence. That statement rules the BVA and Courts.

J

[broncovet]

On Page 50, of the document Paul supplied, it reads:

Service-Connection Standardization and Uniformity, 1941 (Public Law No. 77-361)

A law passed on December 20, 1941 (Pub. L. No. 77-361, Chap. 603, 55 Stat. 847) was

enacted to facilitate standardization and uniformity of procedures related to determining

service-connection of injuries or diseases alleged to have been incurred in or aggravated by

active service in a war, campaign, or expedition. Among other things, it provided that:

…where a veteran is seeking service-connection for any disability, due

consideration shall be given to the places, types, and circumstances of his

service as shown by his service record, the official history of each

organization in which he served, his medical records, and all pertinent

medical and lay evidence.

For any veteran who engaged in combat with the enemy in active service

with a military or naval organization of the U.S. during some war,

campaign, or expedition, the Administrator of VA is authorized and

directed to accept as sufficient proof of service-connection of any disease

or injury alleged to have been incurred in or aggravated by service in such

war, campaign, or expedition, satisfactory lay or other evidence of service

incurrence or aggravation of such injury or disease, if consistent with the

circumstances, conditions, or hardships of such service, notwithstanding

the fact that there is no official record of such incurrence or aggravation in

such service, and, to that end shall resolve every reasonable doubt in

favor of such veteran.

...service-connection of such injury or disease may be rebutted by clear

and convincing evidence to the contrary. The reasons for granting or

denying service-connection in each such case shall be recorded in full.

While the VA generally was already doing what this law required, the law sought to extend

presumption in favor of combat veterans in a more uniform way. This law affirms

Congressional intent that whenever possible, service-connection determinations be resolved

in favor of veterans who served in combat. The Senate Report makes this clear:

…the bill as drafted is not considered to be objectionable from an

administrative standpoint,

…the bill as drafted is not considered to be objectionable from an

administrative standpoint, and would give legislative sanction to the policy

Economic Systems Inc. Report on Legislative History

December 2004 51

of resolving every reasonable doubt in favor of the veteran (U.S. Senate

Report 902, December 12, 1941, p. 1).

The report goes on to say that to establish a service-connection in peacetime is generally

simpler because records are better maintained. During combat, however, records often

either are not created, due to combat conditions, or are lost. Hence, the change requires

that due consideration be given to additional factors. The report states directly Congress’

intent:

It is the intention of this committee that this legislation should make a

matter of law the pronounced policies of the Veteran’ Administration and

make clear the obligation of employees engaged upon duties pertaining to

determination of service-connection the necessity for the fullest

consideration of all evidence and formulation of decisions in line with the

policies to which this bill, if enacted, will give legislative sanction (U.S.

Senate Report 902, December 12, 1941, p. 3).