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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
I certainly didn't want to file NOD on the May 13th 2009 award letter I got-
and I bypassed the RO in getting my ancillary benefits processed.The REPS application went smoothly as well as my Chapter35 refund request and funeral bill application.
That still left the SMC accrued benefits claim and also refund of my FTCA offset.Something else too-I forget what-
I wrote to District VA lawyer and we also had a long phone call to determine-since the FTCA settlement was handled by them if they were the ones who actually had to determine the offset refund. He referred me back to the VARO and sent me and the VARO a letter as to that affect. I was disappointed I had to deal with the RO on this matter-the same RO which never read 6 years of my medical evidence.
Suddenly I learned today that the RO has prepared a SSOC to correct the award letter I claimed was clearly and unmistakably erroneous.I dont think they want this claim to go into another year without a full and proper resolve.
Part of the problem was that the VA wanted to continue my DIC under 1151. I want it under the correct award-direct SC.
Under 1151 I was not eligible for considerable other benefits that a direct SC award generates-as well as the offset refund.
Maybe this will help someone out there.
If a vet or widow is successful in a direct SC claim or DIC claim - No FTCA offset can be withheld and is not applicable to their SC comp or SC DIC.
This is established VA case law and the BVA even made this point to me in a prior BVA decision I received in 2000.
'If the widow succeeds in direct SC death, there appears that there should be no offset money from her FTCA claim to her DIC.' or words to that affect-I sent the whole decision in as evidence and also the applicable offset regs from M21-1 and NVLSP.
By challenging the VA as to suggesting they made Clear and unmistakable error- I am still aware of my NOD timeframe-but within 3 months they have prepared a response and not taken over a year as my past NOD on this took for response.
Sometimes this works.
If the VA seems to have made a clear and unmistakable error in a decision they send to you-you can question the decision on this type of basis.
Watch out for the NOD clock however and make sure you understand fully all the nuances a CUE has.
Asking them to CUE themselves
(I did this successfully before as well and it generated a new DRO review in 2005 very quickly )in 1996 I did this too on other matter and got award letter straightened out in 3 weeks.)
can be done during the appellate process .This type of request does not depend on a final VA decision.
A vet or widow that could possibly use this method of obtaining a better decision should make sure they fully understand the CUE criteria here at hadit and can prove that the VA did in fact make a clear and unmistakable error-with legal citations to the regs they broke.
GRADUATE ! 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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