My husband was reading his BVA decision dated Sep. 20, 2010 and it states:
Service Connectional Cervical Spine states in part - The record also contains medical and lay evidence in support of a nexus between the Veteran's current cervical spine disability and the service-connected residuals of a tibia fracture. During an April 2004 VA examination, the examiner found that the Veteran manifested left knee instability that had resulted in frequent falls. Additionally, the November 2008 VA examination report and an April 2009 statement from the Vetran's private physician both provided medical opions in favor of the Veteran's claim finding that the Veteran's July 30, 2008 fall was the result of his left knee instability. The Veteran and his wife have also provided statements detailing the Veteran's frequent falls due to left knee disability, and an April 2010 statement from the Veteran's stepson describes how the Veteran stated that his left knee had stiffened moments before the July 2008 fall. The record therefore contains two medical opinions in favor of the claim and lay statements describing how the Veteran fell due to his left knee disability. A claim will be denied only if the prepondence of the evidence is against the claim. In this case, the evidence weighs in favor of a nexus between the Veteran's residuals from a cervical disc herniation and discectomy and his service-connected left knee disability. Accordingly, the claim is granted.
Order - Entitlement to service connection for residuals of a cervical disc herniation and discectomy as secondary to service-connected residuals of a left tibia frcture is granted.
Remand - With respect to the Veteran's claim for TDIU, the claim is inextricably intertwined with the grant of service connection for a cervical spine disability discussed above. 's After implementing the Board's grant of service-connection, the RO should readjudicate the claim for TDIU. The Board notes that the Veteran's residuals of a left tibia fracture, left knee recurrent suluxation, and left knee tender scar are disabilities of a ommon etiology, and therefore meet the schedular criteria for a grant of TDIU under 38 C.F.R. Section 4.16(a). Then the examiner should opine as to whether without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, and, in particular, his residuals of a left tibia fracture and cervical spine disabilit, either alone or in the aggregate, render him unable to secure or follow a substantialy gainful occcupation. The examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background.
Because of the above husband believes that BVA is giving examiner a way out to deny him TDIU. What do you think is husband right. He has exam on May 11th.
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
Charleese
Hi all,
My husband was reading his BVA decision dated Sep. 20, 2010 and it states:
Service Connectional Cervical Spine states in part - The record also contains medical and lay evidence in support of a nexus between the Veteran's current cervical spine disability and the service-connected residuals of a tibia fracture. During an April 2004 VA examination, the examiner found that the Veteran manifested left knee instability that had resulted in frequent falls. Additionally, the November 2008 VA examination report and an April 2009 statement from the Vetran's private physician both provided medical opions in favor of the Veteran's claim finding that the Veteran's July 30, 2008 fall was the result of his left knee instability. The Veteran and his wife have also provided statements detailing the Veteran's frequent falls due to left knee disability, and an April 2010 statement from the Veteran's stepson describes how the Veteran stated that his left knee had stiffened moments before the July 2008 fall. The record therefore contains two medical opinions in favor of the claim and lay statements describing how the Veteran fell due to his left knee disability. A claim will be denied only if the prepondence of the evidence is against the claim. In this case, the evidence weighs in favor of a nexus between the Veteran's residuals from a cervical disc herniation and discectomy and his service-connected left knee disability. Accordingly, the claim is granted.
Order - Entitlement to service connection for residuals of a cervical disc herniation and discectomy as secondary to service-connected residuals of a left tibia frcture is granted.
Remand - With respect to the Veteran's claim for TDIU, the claim is inextricably intertwined with the grant of service connection for a cervical spine disability discussed above. 's After implementing the Board's grant of service-connection, the RO should readjudicate the claim for TDIU. The Board notes that the Veteran's residuals of a left tibia fracture, left knee recurrent suluxation, and left knee tender scar are disabilities of a ommon etiology, and therefore meet the schedular criteria for a grant of TDIU under 38 C.F.R. Section 4.16(a). Then the examiner should opine as to whether without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, and, in particular, his residuals of a left tibia fracture and cervical spine disabilit, either alone or in the aggregate, render him unable to secure or follow a substantialy gainful occcupation. The examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background.
Because of the above husband believes that BVA is giving examiner a way out to deny him TDIU. What do you think is husband right. He has exam on May 11th.
Edited by CharleeseLink to comment
Share on other sites
Top Posters For This Question
3
1
1
1
Popular Days
May 3
6
May 2
1
Top Posters For This Question
Charleese 3 posts
john999 1 post
Berta 1 post
jbasser 1 post
Popular Days
May 3 2011
6 posts
May 2 2011
1 post
6 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now