I saw something here the other day that baffles me- it was suggested here in a different forum that a claim can be re opened "during the appellate period."
That makes no sense at all.
"A final decision cannot be reopened unless new and material
evidence is presented. Pursuant to 38 U.S.C.A. § 5108. The
Secretary must reopen a finally disallowed claim when new and
material evidence is presented or secured with respect to
that claim. Knightly v. Brown, 6 Vet. App. 200 (1994)."
A re open is only for a claim that has been denied and is not in the appellate process.
It takes New and material evidence to re open the claim.
I saw a recent BVA decision the other day and I know the buffoons (oooops reps) who mst surely handled the claim.
They possibly cost the vet about 2 years of retro if the vet succeeds on remand.
They could be sued in a state court.
The vet was within appellate period for a TDIU claim and they told him to re open with N & M evidence.DURING THE APPEALS TIMEFRAME! Re Open???? and lose his EED on the original claim?????? ridiculous!
This was one of the most atrocious cases I ever saw of a vet getting piss poor rep advise.
It is same POA I filed a 34 page documented General COunsel complaint against a few years ago so I will not post the link-
their reputation is bad enough as it is.
And they DO have some fabulous reps- who have to work side by side with their lousy ones.
Edited by Berta
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.
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.
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.
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”
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.
Question
Berta
I saw something here the other day that baffles me- it was suggested here in a different forum that a claim can be re opened "during the appellate period."
That makes no sense at all.
"A final decision cannot be reopened unless new and material
evidence is presented. Pursuant to 38 U.S.C.A. § 5108. The
Secretary must reopen a finally disallowed claim when new and
material evidence is presented or secured with respect to
that claim. Knightly v. Brown, 6 Vet. App. 200 (1994)."
A re open is only for a claim that has been denied and is not in the appellate process.
It takes New and material evidence to re open the claim.
I saw a recent BVA decision the other day and I know the buffoons (oooops reps) who mst surely handled the claim.
They possibly cost the vet about 2 years of retro if the vet succeeds on remand.
They could be sued in a state court.
The vet was within appellate period for a TDIU claim and they told him to re open with N & M evidence.DURING THE APPEALS TIMEFRAME! Re Open???? and lose his EED on the original claim?????? ridiculous!
This was one of the most atrocious cases I ever saw of a vet getting piss poor rep advise.
It is same POA I filed a 34 page documented General COunsel complaint against a few years ago so I will not post the link-
their reputation is bad enough as it is.
And they DO have some fabulous reps- who have to work side by side with their lousy ones.
Edited by BertaGRADUATE ! 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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