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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 new 2011 VBM has detailed discussion on the CAVC Shade decision of 2010.
The veteran, Mr. Shade, who claimed a skin condition from service , had been denied at the RO level when he attempted to re open a claim he had been denied for in 2002 due to lack of current diagnosis and nexus.He had submitted medical evidence that stated he had a “chronic dermatitis that had been present for years.” Since there was no nexus statement the BVA in turn denied his claim.He appealed to the CAVC.
The decision is important and NVLSP narrowed it down to it's most important facet.
Although a Federal Circuit court had overturned part of a CAVC decision n Hodge, this caused an amendment to Duty to Assist ,38 CFR 3.156 (a) to occur in 2001. But the circuit court felt that the new definition of “new and material Evidence” was more restrictive than the prior regulation.
What Shade V Shinseki does ,per NVLSP, is clarify that new and material evidence needs only to “address one reason” for the denial in order to trigger VA to re open the claim.Even if the VA came up with more than one reason to deny. The standard for any new and material evidence is that it “raises the possibility “of substantiating the claim.
Shade's medical opinion was lacking in the proper criteria for IMOs that we have here at hadit.
But still the CAVC felt it was enough to potentially substantiate the claim and the right to re -open was granted.I assume the BVA had to vacate their decision (have not read Shade yet( and that would allow Mr. Shade to provide additional evidence such as an IMO with a nexus statement possibly from the same doctor to attempt to finally succeed on his claim.
NVLSP gives another example:
Vet is denied for depression as the VA examiner said he or she had suffered an “acute situational reaction” in service and did not have a chronic disability.Years pass and the vet decides to try to re open the claim.
The vet then submits a nexus statement from a doctor.
This is enough for the VA to re-open the claim as it is new and material evidence.
As NVLSP suggests the current IMO could possibly mean there would be no need for an additional CX & P and the new IMO could award the claim.
VA has stated many times to veteran's that they have submitted evidence that is redundant or cumulative (meaning too similar to what they already received )but this evidence could always be potentially punched up a bit to fall into N & M criteria to support a reopen of an old claim.
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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