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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
When the issue of Protected Ratings comes up
it usually is in reference to the 10 and 20 years
levels of protection.
Sometimes a comment might be thrown in about
a 5 year level of protection.
I just finished reading (2 hours of reading) a document
that makes specific mention of the 5 years protection rule.
http://www.bva.va.gov/docs/VLR_VOL3/4-DeutschAndBurriesci-DueProcessInTheWakePages220-262.pdf
Due Process in the Wake of
Cushman v. Shinseki: The Inconsistency of Extending
a Constitutionally-Protected Property Interest to
Applicants for Veterans’ Benefits
Emily Woodward Deutsch and Robert James Burriesci
" Once a beneficiary has been in receipt of benefits at a
particular rating for five or more years then the rating is considered
to be stabilized and additional requirements must be met prior
to reducing the evaluation.
191
After five years, in addition to the
above requirements, VA must provide the beneficiary with a full
and complete examination, in comparison with the examination
that was relied upon to grant the evaluation, prior to reduction,
and reduction will not be effected unless the examination reveals
sustained, material improvement.
192
In addition, after a particular
evaluation has been in effect for 20 years or more, then ordinarily
it may not be reduced.
193
The special protections triggered by an attempt to sever
or reduce a beneficiary’s entitlement make clear that VA provides
protections in excess of those required by the Due Process Clause’s
provision for a fair hearing as these due process protections focus
the burden of proof on the Government. As such, VA regulations
more than comply with the Due Process Clause."
The five years is alo supported by 38 CFR
Sec. 3.344 Stabilization of disability evaluations.
© Disabilities which are likely to improve.
The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods
at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve.
Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. [26 FR 1
Carlie passed away in November 2015 she is missed.
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