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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
Guest Berta
In all the claims I have worked on over the years I have only had to spell these regs out to VA in a claim when they violated this reg in my claims many years ago
(1995)
In the recent SOC I received the DRO failed to perform the DRO's job description as within M21-1MR Part 5, Section C, and under that Part 11, et all-
DRO Duties and Responsibilities.
Also she violated 38 USC 5107 (a).
My SOC was the first one in all this time that I ever had to use 38 USC 5107 (a) for-
I want you all to realise that this reg covers your right to a full consideration of all of the evidence of record by the VA. These are points in this reg-
Only when that evidence is fully considered by VA (meaning they actually have to read it) does the balance of proof kick in.
Meaning- if the evidence is a preponderance for the veteran- the decision should reflect that. And be favorable to the veteran-
If it is equal in merit to and against, the Relative Equipoise Doctrine should kick in.
None of these things can happen unless the VA reads all of your evidence. If they dont read it all-and in my case they have read NOTHING in over 2 and a half years
as I have never received any statement regarding any of it, thy are violating the provisions of 38 5107.
This part of 38 USC 5107 also states that:
the VA "shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administrated by the Secretary." (38 USC 5107 (a) added by Pub L. No. 106-475, part 3)
In my case- and maybe for many out there- I am stating to VARO that the "reasonable effort" in my case involving the DRO taking the time to actually open the c file and READ the evidence. She copied verbatim the decision I received in March 2004. SHe only added the dates of the subsequent submissions of evidence, added a Contact Report thing ( which I still dont understand)
and then copied everything that I received in 2004. It took ten minutes tops for my so- called DRO De Novo- De Sameo Sameo Review.
The amendment to 38 5107 (a) -aka the VCAA , elaborates on the Duty to Assist in supporting that if the veteran has provided a preponderance of evidence, the veteran has succeeded. It is as simple as that.
I need to add here that by evidence- I mean Medical evidence is always the most probative and compelling, buddy statements and anything else should be supportive but it is secondary to medical evidence.- in my case I used prior VA medical reports, the entire medical VA record,statements in SOCs, and also an EEOC case which they had at the VARO for many years, my 2 IMOS and also reference to an additional IMO they could obtain from one of their doctors right at the VAMC down the street from them who I have conferred with.
Also I mean that YOU have to read their decisions carefully and also see how they applied your evidence to the decision. The worse thing you can do as a claimant is repeat their failure to read it all.
Friday I emailed the VARO director at the VA query page a complaint as to how the DRO violated my rights and somebody better find my $2,000 IMO and the freeby one from Dr. Rabiee
I forgot I had their actually RO email addy-
Yesterday I got email confirmation that this was being re-routed to the VA Central Office-which is great because they know how to read there.
Then I realised in the listing of evidence the IMO receipt was listed but it was called under Evidence, with the other medical submissions as "letters with and without attachments"- so it was right there all along in the c file, and not misplaced by the MF (Mysterious force) who I know from prior experience.
this is the same type of 'letters and attachments' that got me a nice monetary settlement from the VA General counsel and caused me to succeed in all of my numerous past claims and issues with the VARO. There are many good decision here in my files.
It was my 'letters and attachments' that caused the VA to realise that they killed my husband who is probably spinning in his grave over this.
He always feared they would discriminate against me on claims if he died.
I am pretty alarmed that YOUR evidence to include all IMOs you have paid for can be simply written off as "letters with and without attachments"
what the f___ is that- they could deny every single claim on that basis.
Do we have to mail them the actual Doctors themselves?
My long point here is- I am preparing my Response to my SOC but I expect that I wont even need to send it as I got on my Reps rear end at the highest level there (something went real wrong -he was in and out of the DROS office many times-
who was he helping while he was forgetting me?)
I found the Buffalo email addy and past experience with them means if you get real tough, and I do mean real tough, no idle threats like I will tell my congressman etc-no- you have to take action that affects them immediately,and then they usually start doing their jobs.
I am thinking that many of you might well need to either copy the 5107 regs and add to your claims or spel them out within the claims itself if they are failing in this
significant and really their most important duty to fulfill to adequately resolve your claim.
It might benefit some of you to re state the entire provision of 38 USC 5107 and apply each point specifically to your denial, by referencing their words and actions, in order to get a proper and maybe a faster decision on a SOC.
What is also startling to me is that it appears that the DRO is also the VSM now at the VARO- there was a shuffle recently due to retirements.
So I have a DRO who cant read and doesnt know VA law as well as a VSM-and I cannot tell if they are one in the same.
I have lots of vets claims email- I start school officially on monday-
I am in a parallel war with both VA and also NYSDVA.
When I win the VA war and the DVA war , it might well affect vets in NYS western area for the best. It is top priority for me this week to deal with my own problems here, not to mention my homework.
I can only respond to hadit emails when I get more time.
Edited by BertaLink to comment
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