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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
Continue Reading on HadIt.com-
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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.-
- 4 replies
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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
to follow up some points that John made as to the new AO presumptives-
this case shows exactly how survivors claims should be handled under the Nehmer Stipulation and Court Order.
I hope this case will be readily searchable in our archives.It sure contains a lot of Nehmer legalise-but
It doesnt mention the nuances of Nehmer as to accrued nor does it mention that ALL AO money has to be paid as accrued - even to the next of kin if the surviving widow or widower of the vet dies with accrued claim- and accrued benefits are awarded.
more info on that at another time-
http://www4.va.gov/vetapp02/files02/0209543.txt
In part:
“The veteran had service in Republic of Vietnam, and is presumed to have been exposed to Agent Orange (AO). He died in August 1984, due to metastatic oat cell cancer of the lung. The appellant is his widow. A claim for DIC was initially filed on December 13, 1984, and was initially denied in a March 1985 rating. Denial of benefits was continued in a May 1985 rating and, ultimately, DIC benefits were denied by a Board decision dated February 11, 1986. In this case, the veteran died on August [redacted], 1984, and claims were filed prior to September 1985, but not finally adjudicated by the Board until February 11, 1986, i.e. after September 1985. The appellant's original claims did not specify a causal connection to Agent Orange, and prior claims were denied without reference to Agent Orange or regulations appertaining to herbicides. In July 1990, the appellant submitted a request to reopen her claim for the cause of the veteran's death on the basis of Agent Orange exposure. Later that month, she was informed by the RO that action on this claim would be deferred until she submitted additional evidence and until the RO received instructions on recently revised legislation pertaining to Agent Orange exposure. She thereafter submitted additional information, including a Decision on Appeal, dated in March 1990, from the Agent Orange Administration, which concluded, resolving doubt in the veteran's favor, found that he was exposed to defoliant spray operations. On June 9, 1994, final regulations amending 38 C.F.R. §§ 3.307 and 3.309 were published. The new regulatory provisions, which allowed presumptive service connection for respiratory cancer developing to the required degree within 30 years after exposure to herbicides, were effective as of the date of final publication. 59 Fed. Reg. 29,723 (June 9, 1994). By a rating decision issued in August 1994, service connection for the cause of the veteran's death was granted, effective June 9, 1994. The appellant contends that, since the veteran died in August [redacted], 1984, she should receive benefits retroactive to the date of his death. In the alternative, she claims entitlement to an effective date of December 13, 1984, the date she filed her claim for DIC benefits. The Board additionally notes that entitlement to an effective date prior to June 9, 1994, for service connection for the cause of the veteran's death was recently denied by a Board decision dated March 5, 1997. At that time, the Board observed that the earlier claims did not specifically claim entitlement to benefits predicated on exposure to AO, and the Board further observes that the record does not reflect that entitlement was denied based on consideration of exposure to AO or associated regulations. However, that March 5, 1997, Board determination was recently vacated. Generally, where, as here, a claimant is granted benefits based on liberalizing legislation, the effective date of the award will be fixed in accordance with the facts found, but not earlier than the effective of the liberalizing law. If the claim is reviewed at the request of the claimant more than one year after the effective date of the liberalizin....etc” Basically she not raise AO issue on her original DIC claim and went through many denials- however due to Nehmer: Because her claim was decided after September 1985 (February 11, 1986, Board denial) and prior to 1994, she is a claimant who sought service connection for a cause of death that VA subsequently determined was associated with herbicide exposure, regardless of whether she had actually raised the issue of exposure in that prior claim. As a member of the class in Nehmer, the guidelines of the Nehmer Stipulation are applicable to her claim. Thus, the proper effective date of her award of DIC is the date her claim was originally filed, on December 13, 1984. In general, the law provides that where DIC is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). However, in this particular case, the Nehmer Stipulation is controlling, which provides for an effective date of December 13, 1984, for the appellant's award of DIC. ORDER An earlier effective date of December 13, 1984, for the award of DIC is granted.
________________
The widow did not state AO on her initial DIC application.
VA denied DIC many many times.
She re-opened July 1990 - her EED is DIC retro back to August 1984
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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