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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.- 4 replies
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RichardZ, -
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
In some cases VA will recognize a common law surviving spouse for DIC purposes.
"The laws dictate that to be recognized as the veteran's
surviving spouse for the purpose of establishing entitlement
to VA benefits, the appellant must be a person of the
opposite sex who was the spouse of a veteran at the time of
the veteran's death, and who lived with the veteran
continuously from the date of marriage to the date of the
veteran's death (except where there was a separation which
was due to the misconduct of, or procured by, the veteran
without the fault of the spouse) and has not remarried." 38
U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b)(1).
"Additionally, for a surviving spouse to qualify for benefits,
additional factors must be established by the evidence. DIC
may be paid to a surviving spouse of a veteran who died on or
after January 1, 1957, and who was married to the veteran:
(1) before the expiration of 15 years after the termination
of the period of service in which the injury or disease
causing death was incurred, or aggravated; (2) for one year
or more prior to the veteran's death; (3) for any period of
time if a child was born of the marriage or was born to them
before the marriage." 38 C.F.R. § 3.54.
"A recognized marriage for VA purposes is defined as one which
is valid under the law of the place where the parties resided
at the time of marriage, or the law of the place where the
parties resided when the right to benefits accrued." 38
U.S.C.A. § 103©; 38 C.F.R. § 3.102.
In this BVA decision Common law is further defined as to what evidence is required:
http://www.va.gov/vetapp10/Files6/1043681.txt
“For VA benefits purposes, a marriage means a marriage valid under
the law of the place where the parties resided at the time of
marriage, or the law of the place where the parties resided when
the right to benefits accrued. 38 C.F.R. § 3.1(j)."
"A marriage can be established by several types of evidence,
including a copy or abstract of the public record of marriage, a
copy of the church record of marriage containing sufficient data,
an official report from service department as to marriage which
occurred while the Veteran was in service, the affidavit of the
clergyman or magistrate who officiated, the original certificate
of marriage, and affidavits or certified statements of two or
more eyewitnesses to the ceremony. 38 C.F.R. § 3.205(a)(1).”
What VA means as to “law of the place where the parties resided ...etc.”
means if the state law recognizes Common Law.
For example I was approached regarding a DIC claim for a local widow.
But she was never married to the veteran and NY is not a common law state.She is not the veteran's surviving spouse per VA regulations,not even under any of the other conditions that could have deemed her relationship as a valid marriage.
These other conditions, if met, however would cause the VA to deem this type of relationship as a “valid” marriage as within:
http://www.va.gov/vetapp10/Files2/1018711.txt
In this BVA decision, the spouse, as common law wife of the veteran, was granted
recognized status as surviving spouse of the veteran:
http://www.va.gov/vetapp95/files2/9509716.TXT
She got over that hurdle at the BVA but this case does not reflect whether her DIC claim was successful as it only involved her legal status as a survivor, for VA purposes, that had to be established before any determination on DIC could be made.
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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