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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.-
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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
4myboys
To: Department of Veterans Affairs
Decision Review Officer
In regards to Clear and Unmistakable Error found in the original rating decision by the Department of Veterans Affairs on behalf of ____________; the following Code of Federal Regulations was not, as required by law, applied:
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents Subpart A--General Policy in Rating Sec. 4.1 Essentials of evaluative rating. It states: both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. Sec. 4.2 Interpretation of examination reports. Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.
At the time of initial rating evaluation, September 1999, all medical records including SMR's, MRI's, EMG's and numerous pages of Doctors reports/evaluations/diagnosis' were in the hands of the rater.
Veteran's Application for Compensation or Pension dated January 7th, 1999
Nature and History of Disabilities Section 17.
SCD's: Ruptured & Herniated Discs, Sciatic Nerve Damage, Degenerative Disc Disease, Dehydration of Lower Lumbar, Migraine Headaches, Severe Chronic Back Pain, Spasms, Chronic Sinusitis & Bronchitis, and all other SCD's as noted in SMR's.
Sciatic Nerve Damage was specifically requested as part of my reason and basis for compensation.
1999 Rating decision Reasons and Bases:
Service connection for central disc bulge L5-S1 has been established as directly related to military service. This condition is evaluated as 40% disabling from April 22nd 1998.
Next paragraph:
August 1997 and MRI revealed TWO disc bulges, the largest one at L5-S1 and contact but did not compress nerve roots….
(In the same paragraph diagnosed sciatic neuropathy defined)
Straight leg raising was positive on the left at 20 degrees with radicular pain from the lower back to the left posterior buttock and left gastrocnemius muscle. X rays showed Degenerative Disc Disease at L5-S1 with acquired mild spinal canal stenosis and the appearance of compression of S1 nerve roots.
Clear and Unmistakable Error in FACT recorded in rating decision per CFR 38 Part 4.2. Section 4.2 in CFR Interpretation of examination reports: It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.
Impression as taken from the actual MRI findings report dated August 11th, 1997.
1. Degenerative Disc Disease at L5-S1 with acquired mild spinal canal stenosis and the appearance of compression of the S1 nerve root, left greater than right.
Also in record to support continued and unremitting Sciatic Nerve damage was EMG findings dated January 14th 1999.
EMG Findings:
There were moderate chronic neurogenic changes in the form of poor activation and increased duration of amplitude of many to all the remaining motor units in the left flexor digitorum longus, extensor digitorum brevis and semitendinosus muscles. There were mild to moderate neurogenic changes in the left tibialis anterior muscle.
Impression:
EMG and nerve conduction studies of the lower extremities and related paraspinal muscles reveal changes suggestive of left L5 Radiculopathy. This is moderate in degree of electricity.
Service Record documents from:
Neurosurgery Clinic dated January 9th 1998.
Diagnosis: Chronic Back Pain/Herniated L5-S1
Left S1 Radiculopathy Left Leg
Findings from Physical Evaluation Board Proceedings:
Diagnosis and Ratings:
Category 1:
Category 2:
1. The September 1999 rating decision contains clear and
unmistakable error in not only ignoring evidence but denying entitlement to service connection for Sciatic Nueropathy as part of the original diagnosis and rating of: CFR 38 Part 4 dated 1998-1999: 5293 Intervertebral disc syndrome: Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief rating of 60%. CFR 38 Sec. 4.21 Application of rating schedule. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability there from, and above all, coordination of rating with impairment of function will, however, be expected in all instances. Based on the requirements of the Law at the time of decision and evidence of a Clear and Unmistakable Error, I am entitled to a retroactive date to initial claim January 7th, 1999 with an effective date of April 22, 1998 for compensation at the 60% level.<BR style=mso-special-character: line-break"><BR style="mso-special-character: line-break">
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