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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
free_spirit_etc
We sent quite a few medical articles about cancer in support of our calim. When I was researching cancer and BVA I found quite a few claims that were granted along the same theory that we argued.
In my husband's case we argued.
1. He retired in Sept 1998.
2. His cancer was detected at 3.1 cm. in August 2000.
3. Pulmonary adenocarcinoma has a medically established doubling time of 180 days.
4. It takes approx 35 doublings for a tumor to reach 3 cm.
180 days times 35 times is WAY more than 2 years. -- And it is more likely than not that my husband's cancer did not grow to the size that typically takes 17 years to develop in the two years after service.
Though applied to different types of cancers - these same principles were used to grant service connection for cancer.
Two were supported by the Armed Forces Institute of Pathology applying the standards - and one by the BVA.
Would it be useful to send these claim to the RO to show that this same argument has been used to grant service connection many times? And also to add backing to OUR evidence (that it takes about 35 doublings to reach 3 cm - that a tumor is rarely detected on a chest x-ray until it is 2 cm. --thus it was not detected sooner...etc)
http://www.va.gov/vetapp93/files2/9315426.txt
Received in March 1993 was an opinion by the Armed Forces
Institute of Pathology, issued by the Chairman of the
Department of Environmental and Toxicologic Pathology, who
reported that agreement was obtained on the diagnosis of
adenoid cystic carcinoma in the veteran's case. He
indicated that, as a general rule, adenoid cystic carcinomas
are very slowly growing tumors. He pointed out that this
tumor's volume doubling time has been estimated at about
two years. (See Mayo Clinic Proceedings 68:297-306, March
1993.) He further reported that the Department of
Otolaryngic Pathology stated that it was their opinion that
the adenoid cystic carcinoma in the veteran existed as a
microscopic lesion during his period of service. He also
noted the following:
It is possible that the lesion existed
(as a tiny or microscopic lesion) prior
to the beginning of service. However,
this would be less confidently stated
than the statement about existence during
the period of service.
In summary, it was noted that the Armed Forces Institute of
Pathology staff concurred in the diagnosis of adenoid cystic
carcinoma in this case and that the probable duration of
this tumor was such that it was present during the veteran's
service. We concur. Thus, a grant of service connection
for the cause of death is warranted.
ORDER
Service connection for the cause of the veteran's death is
granted.
http://www.va.gov/vetapp93/files3/9320249.txt
Pursuant to the Board's request of May 1993, the Chief Medical
Director of the VA submitted this case to the Armed Forces Institute
of Pathology. After a review of all the evidence, including
pathological materials, the examiner replied, in pertinent part, as
follows:
Theoretically a tumor will have passed through 30 doublings before a single cell becomes a detectable tumor mass of 1.0 to 2.0 centimeters
in diameter. If it is unlikely that a patient can survive much beyond 40 doublings because of a very rapid increase in tumor size, then it can be appreciated that such a tumor has already been in a subclinical existence for almost ¾ of its natural history at the time of detectionand treatment. By extrapolating data on meandoubling time for squamous cell carcinoma, it is possible to arrive at a projected value for the time it takes for a tumor to attain a detectable size of 2.0 centimeters as 7.8-9.1 years (1, 2).
In Fraser and Pare's textbook Diagnosis of Diseases of the Chest, 3rd ed., W. B. Saunders Company, 1989, on page 1407, the authors state "The time required for a malignant pulmonary nodule to reach 1 centimeter in diameter ranges from about 2.5 to over 25 years." Since Mr. Brown's tumor measured 5 centimeters in maximum diameter three years after, it is reasonable to conclude that it had its inception prior to his discharge and more particularly during the years of his service.
In view of the above, it is apparent that the veteran's fatal carcinoma of the lungs with metastases to the brain had its inception during his 20 years of active duty and, therefore, service connection for the cause of the veteran's death is clearly warranted.
ORDER
Service connection for the cause of the veteran's death is granted.
This one does not have an opinion from AFIP, but uses much of the same reasoning.
http://www.va.gov/vetapp92/files2/9213359.txt
. The third period is when there is
clinically evident disease. The time required from malignant
transformation of a single cell to the appearance of a tumor
large enough to be clinically diagnosed depends on the rate
of cell division. Squamous cell carcinoma of the lung,
absent other factors, is relatively slow growing. Studies
have shown that the average time the tumor has been present
in the body before symptoms develop may be 7 to 8 years for
this histologic type. G. Baum, M.D., et al., Textbook of
Pulmonary Diseases, l060 (3rd ed. l983); A. Fishman, M.D., et
al., Pulmonary Disease and Disorders, l93l (2nd ed. l988).
Experimental studies suggest that early cancer growth occurs
at a constant exponential rate. Applying this to human
cancer of the lung, 20 doublings would be required to produce
a l mm. tumor containing l million cancer cells; 30 doublings
would be required to produce a l cm. tumor containing l
billion cells; while 35 doublings would be required to
produce a 3 cm. tumor containing l0 to l00 billion cells.
However, certain factors are known to limit these growth
patterns. The mean doubling time for squamous cell cancer of
the lung, absent other influences, is estimated at 88 days;
thus, from the time of malignant change until a 3 cm. mass
becomes chronically evident, the calculated time might be 8.2
years. Fishman, supra at l933. The veteran's 6 cm. tumor,
based on the above cited growth rates, can reasonably be
considered to have had its beginning during active service,
and service connection is warranted therefor.
In further granting benefits not only for the lung cancer,
from which he now has apparently specific postoperative
residuals including pain in the scar areas and dyspnea, but
also for other current respiratory problems, the Board notes
that the veteran now exhibits dyspnea with shortness of
breath and some right lung dysfunction with decreased
fremitus and loss of normal breath sounds. He has testified
that he has not smoked cigarettes since his surgery in l983.
He also has objectively demonstrated severe ventilitary as
well as obstructive defects in both lungs. One physician
diagnosed progressive chronic obstructive pulmonary disease
in March l990. Accordingly, service connection is also
reasonably warranted for the veteran's other chronic
respiratory problems as symptomatically indistinguishable
from his service-connected postoperative residuals of lung
cancer. 38 C.F.R. § 3.303.
ORDER
Service connection for postoperative cancer of the left lung
with chronic respiratory disorders is granted.
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