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Is This Cue? Denied Comp For In Line Of Duty Injury That Resulted In 35-4 Medical Discharge For Permenant Disability W 10% Rating
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BasehorVet,
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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.
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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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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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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
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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
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Question
BasehorVet
I thought I would pose this question to the CUE experts and see what their thoughts and advice would be. Bottom line is that I was discharged from the USAF in 1985 under a medical discharge 35-4 with a narrative reason for separation on my DD214 as "Discharge by reason of physical disability with entitlement to severance pay". My original DD214 was replaced with a DD215 that is dated 3 weeks after my date of discharge because it had the wrong SS#, last week I filed for another change using a form 149 to correct the separation code on the DD214 from the incorrect JFL to the Air Force specific JFL1.
I was injured in the line of duty and have a Line of Duty Determination AFR 35-67 in my medical files and in my possession.
I have a Form 88 Report of Medical Examination for the MEB which states Recurrent back pain 1981 to present (form dated 02 Aug 84) due to fall, treated with back brace and physical therapy, diagnosed a facet syndrome with myofacial chronic pain pattern.
I have a AF Form 356 Findings and Recommended Disposition of USAF Physical Evaluation Board that states 1. Facet Syndrome, Lumbar spine, with low back pain. Unfitting yes, Due to misconduct No, Incurred while entitled to basic pay yes, Degree of impairment is permanent yes, Percent 10% Va diagnostic code 5299-5295.
I failed to appeal the decision dated July 28 1985 and according to my American Legion advocate it was then finalized after one year and it is not possible to claim back pay for compensation based upon the original denial of benefits.
The notification letter stated:
"We have carefully considered your REOPENED claim for service connection of hearing loss and back disability.
We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury. The law allows payment only for benefits only for those disabilities which do result from disease or injury."
I do not know why it states reopened claim, this was the first claim filed upon separation from service.
I did some research and found this tidbit:
Title 38: Pensions, Bonuses, and Veterans' Relief
PART 3—ADJUDICATION
Subpart A—Pension, Compensation, and Dependency and
Indemnity Compensation
General § 3.1 Definitions.
(k) Service-connected means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.
(m) In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:
(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.
(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.
(3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court.
(Authority: 38 U.S.C. 105)
To me this means that since the claim was denied that it conflicted with the rules established that the in the line of duty determination binds the VA to recognize the disability and compensate for it. After this decision was made which is in conflict of the laws and rules then anything after that should not have been adjudicated based upon:
§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.
(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.
I have a request to reopen the claim based on new and material evidence, I had a comp exam last week and scheduled for a MRI in two weeks. The exam nurse indicated to my doctor that I needed x-rays of my hips and I had them done on Friday. So it looks like my claim will be addressed as it should have been 25 years ago and I will be awarded some comp rating.
Any thoughts about my legal musings? Do you think that a clear and unmistakable error of fact or law exists?
Victor
You can find additional information such as the evidence I submitted to reopen my claim at the following hadit post.
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