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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
carlie
In studying some BVA and Court cases, researching CUE for EED, I have come across several instances inwhere they refer to "Based on an original claim".
I don't understand this due to the fact that - since the original claim was made, appeal times have expired, Nod's have not been sent in nor perfected, old record's were miracuously found or obtained, service connection was denied several times prior, etc... The one common that I find in these cases that refer to "Based on an original claim", is that THE ORIGINAL Claim was filed within one year of Honorable separation.I'm going to cut & paste some brief info. here so manybe my buddies out there can help me grap an understanding of this and how it works.
Thanks in advance for all your wonderful help,
carlie
Citation Nr: 0321596
Decision Date: 08/28/03 Archive Date: 09/04/03
DOCKET NO. 00-13 932 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an effective date earlier than February 10,
1997, for the award of service connection for chronic
lumbosacral strain.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Douglas, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
June 1951 to April 1952, from April 1953 to November 1953,
and from July 1961 to June 1962. This matter comes before
the Board of Veterans' Appeals (Board) on appeal from a March
2000 rating decision by the Montgomery, Alabama, Regional
Office (RO) of the Department of Veterans Affairs (VA). In
March 2003, the veteran testified at a personal hearing
before the undersigned. A transcript of that hearing is of
record.
FINDINGS OF FACT
1. The veteran first submitted an application for service
connection for residuals of a back injury on June 25, 1962;
his claim was received within one year of his discharge from
active service on June 22, 1962.
2. A November 1962 rating decision was clearly and
unmistakably erroneous in denying service connection for
chronic lumbosacral strain.
CONCLUSION OF LAW
An effective date of June 23, 1962, is warranted for the
award of service connection for chronic lumbosacral strain.
38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
There has been a significant recent change in VA law. On
November 9, 2000, the Veterans Claims Assistance Act of 2000
(VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became law.
Regulations implementing the VCAA have also been published.
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and
implementing regulations apply in the instant case. See
VAOPGCPREC 11-2000. Although the record does not show the
veteran was adequately informed of the provisions of the VCAA
and how it applies to his claim, in light of the favorable
outcome of this decision the Board finds the veteran is not
prejudiced by this action.
VA regulations provide that the effective date for an award
of disability compensation based on an original claim for
direct service connection shall be the day following
separation from active service or the date entitlement arose,
if the claim is received within one year after separation
from service; otherwise, and for reopened claims, it shall be
the date of receipt of the claim, or the date entitlement
arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R.
§ 3.400. For an award involving error in a prior decision,
the effective date is the date benefits would have been
payable if made on the date of the reversed decision.
38 C.F.R. § 3.400(k).
Previous determinations which are final and binding,
including decisions of service connection, degree of
disability, age, marriage, relationship, service, dependency,
line of duty, and other issues, will be accepted as correct
in the absence of clear and unmistakable error (CUE). Where
evidence establishes such error, the prior decision will be
reversed or amended. 38 C.F.R. § 3.105(a).
The United States Court of Appeals for Veterans Claims
(Court) has held that CUE is a very specific and rare kind of
error, of fact or 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. Fugo v. Brown, 6
Vet. App. 40, 43 (1993). The Court established a three-part
test to determine whether CUE is present in a prior
determination; (1) either the correct facts, as they were
known at the time, were not fully adjudicated (i.e., more
than a simple disagreement as to how the facts were weighed
or evaluated), or statutory or regulatory provisions extant
at the time were incorrectly applied; (2) the error must be
"undebatable" and of the sort "which, had it not been
made, would have manifestly changed the outcome at the time
it was made;" and, (3) a determination that there was CUE
must be based on the record and the law that existed at the
time of the prior adjudication in question. Damrel v. Brown,
6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3
Vet. App. 310, 313-14 (1992) (en banc)).
In this case, a November 7, 1962, rating decision denied
service connection for chronic lumbosacral strain because
there was no record of a back injury during active service.
It was noted, however, that VA examination revealed a chronic
lumbosacral strain. Also, apparently of record at the time
of that decision, based upon its location in the claims file
and specific references in the rating decision, was a service
department hospital report signed by a physician on June 17,
1962, indicating the veteran sustained a back injury in March
1962. The report further noted that an extensive
neurosurgical service evaluation in April 1962 had been
normal, except for "some muscle spasm and tenderness in the
lumbosacral region."
Based upon the evidence then of record, the Board finds the
November 7, 1962, rating decision denying service connection
for chronic lumbosacral strain was clearly and unmistakably
erroneous. It is undebatable that existing service medical
records demonstrated at that time that the veteran had
incurred a back injury in March 1962, with objective evidence
of muscle spasm and lumbosacral tenderness in an April 1962
evaluation, and that an existing VA examination in October
1962 included a diagnosis of chronic lumbar spine strain.
This error had it not been made would have manifestly changed
the outcome of the previous rating determination.
The record also shows that the veteran first submitted an
application for service connection for residuals of a back
injury on June 25, 1962, within one year of his discharge
from active service on June 22, 1962. Therefore, as a result
of the reversal the November 7, 1962, rating decision based
upon CUE, the Board finds that an effective date of June 23,
1962, is warranted for the award of service connection for
chronic lumbosacral strain.
ORDER
An effective date of June 23, 1962, is granted for the award
of service connection for chronic lumbosacral strain.
____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.
***********************************************************
OKAY NOW TO TAKE THIS ONE STEP FURTHER :
Currently I would think this would be diagnostic code 5295 -- Lumbar strain,
With Muscle Spasm it would be evaluated at 20 %. So would the vet be paid this 20 % retroactively from June 23, 1962, day following separation ?
************************************************************
Now as to the diagnostic code dated in 1962 - I don't know if it was the same code & qualifications or not BUT lets just say hypothetically muscle spasm
had a 10 % minimum compensable evaluation -- then would this mean the veteran would win retro at 10 % -- Effective date of the 10% compensation back to June 23, 1962, day following separation :due to
1) Direct Service connection,
2) Claim filed within one year of separation and
3) CUE that reversed the November 7, 1972 denial for service connection, due to the records of evidence at the time the ORIGINAL Claim was denied ?
I realize this is a lengthly read -- and hope I've not left you as confused as myself.
Thanks, carlie
Carlie passed away in November 2015 she is missed.
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