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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
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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
Berta
The Veterans Administration saves countless lives every day.
Their malpractice statistics might be comparable to those of all private US hospitals.
There are very few documented cases whereby a health care professional made a conscious decision to cause harm or death to any patient, veteran or civilian, such as the Michael Swango case.
If a veteran and/or their spouse has major concerns that their VA health care is inappropriate or somehow casing them additional disability due to medical error-they need to question their VA doctor and if that does not resolve their issues, they need to contact their VAMC 's Patient advocate right away.
If these steps do not resolve the issues, they need to get an appointment with the VAMC director and make sure the director has the veteran's records at that meeting so the director can document the meeting and the veteran's concerns in the medical record.
If that does not resolve the medical issue, then it is time to call your Congressman/woman who has a VA liason person to get involved with these concerns if they can potentially help with a resolve.
Sometimes none of above will stave off a serious negligence issue that can get worse by the day.
If a serious misdiagnosis occurred then all subsequent treatments for that improper diagnosis could lead to considerable more medical problems,and even lead to death.
Anyone contemplating filing a Section 1151, 38 USC or a FTCA case , and these are well ecplained in this forum,must obtain copy of the the entire clinical VA record.
Dont tip the VA off that you are considering formal charges.Just ask for a complete copy of the medical records.
Then if the VA has not been able to resolve the issue or assure you that the care is proper-
be willing to get an independent medical opinion.
There is an excellent template here on IMOs under this type of claim (good enough for FTCA as well as 1151 claims.)
The cost of an IMO might be quite high-bt it will either support a Section 1151 and/or FTCA claim or it will give the veteran and their family Peace of Mind if it reveals the care has been proper and was not negligent.
Filing under FTCA does not require having a lawyer but I highly recommend getting one.
If you obtain a strong IMO that reveals serious negligence or malpractice,that has caused the veteran to have documented additional disability, a good malpractice lawyer would be a fool not to take the case.
I hardly ever offer strong opinions here on this type of claim unless I see evidence (from what the veteran has posted or attached) of a strong basis for a valid 1151 or FTCA claim.
But my opinions or medical assessment means nothing to the VA. That is what IMO doctors are for.
There is considerable info here on these types of claims.
My cover letter for IMOs for a non 1151/FTCA claim contained an exhibit list to highlight where- in the med recs, the malpractice occurred and then where the records revealed it was covered up by many VA doctors.
I tabbed those specific medical records with colored tabs in the stack as the entire record will be considered by the IMO doctor.
These IMOs were for a claim involving an additional malpracticed condition that I could not determine for 8 years.It was an undiagnosed AO condition thus I needed to file a new claim.
The IMO doctor had the past FTCA/1151 admissions of malpractice to consider and
was a specialist in the field of the additional new malpracticed condition.
Specialists in the field of the malpracticed disability are the only ones who can really give a strong opinion
that considers all available medical evidence for 1151 and FTCA purposes.
Malpractice lawyers and malpractice doctors can advertise on the internet these days and some will possibly assess your case -to an extent -by email.
The differences between 1151 and FTCA is explained in this topic with all the legal ramifications to consider.
All service orgs (DAV,AL,VFW) have vet reps trained in 1151 claims.
They do not handle FTCA cases.
If you file under both-the level of probative indisputable evidence is the same for both types of claims.
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.
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