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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
So would sending this be a good idea? And what suggestions for changes do you have?
Free
C&P Service Clinician’s Guide § 4.2 “1.11 If an examination report does not contain sufficient details to adequately support the diagnoses (unless the diagnosis is already well established) or sufficient information about the current findings and effects on functioning, the RVSR will return the report as inadequate for rating purposes. (38 CFR 4.2)
I consider the examination I received in March 2002 regarding my lung cancer to be totally inadequate for the following reasons and request that it not be used as a basis in determining my case.
1. The examiner did not examine me.
Though the report is labeled as an examination, the examiner never met with me. The examiner indicated in his report that he was requested to offer an opinion after review of the medical records whether there is a relationship between my currently detected lung cancer and exposure to asbestos in the service, or to give an opinion as to any other etiology.
There is nothing in the examiner’s report which indicates he even talked to me, let alone examined me. The VA examiner issued his report / opinion after a review of some of my records. However, issuing such a report as a “Respiratory Diseases, Miscellaneous Exam” is misleading, and could be mistaken for an actual examination under the VA Clinical Guidelines, which it is not.
2. The fact the examiner stated I had no shortness of breath, and did not have any apparent residuals of the lung cancer I was treated for without even examining me raises a legitimate question as to the credibility of his report.
My pulmonary function tests done at the same VA facility on March 19, 2002 (the same day the VA examiner indicated he reviewed my medical records – and five days before he signed the report) noted that I had dyspnea on hills and stairs, frequent wheezing, and decreased FVC (73% predicted) and decreased FEV1 (69% predicted)
According to § 4.97 Schedule of ratings—respiratory system.Restrictive Lung Disease - 6844 Post-surgical residual (lobectomy, pneumonectomy, etc.).
FEV-1 of 56- to 70-percent predicted should be rated at 30%
The examiner did not even mention my pulmonary function tests done that day, yet he declared I did not have any apparent residuals of the lung cancer. Though it is part of my medical record, it is not clear whether the examiner realized that I had a left lung lower lobectomy before he issued his opinion on my residuals, as he failed to mention it in the report.
My DLCO was 51% on my pulmonary tests at xxx Air Force Base in 2001. These were also part of my medical record. According to § 4.97 Schedule of ratings—respiratory system.Restrictive Lung Disease - 6844 Post-surgical residual (lobectomy, pneumonectomy, etc.).DLCO (SB) of 40- to 55-percent
predicted should be rated at 60%.
The C&P Service Clinician’s Guide 6.1 d) 4. states “If the DLCO test is not included as part of pulmonary function testing, the examiner should determine whether or not it would provide useful information about the severity of pulmonary functioning in a particular case. If it was not done as part of the routine testing, and would not be useful, the examiner should explain why, e.g., by explaining that the DLCO would not be valid in this particular case because of the decreased lung volumes. Unless an explanation for its omission is provided, the DLCO should be done.”
Though my DLCO’s of record were low, no DLCO was done as part of my pulmonary functioning testing. Nor was there any explanation as to why a DLCO was not done prior to his determination that I had no residuals from lung cancer. Again, I question the adequacy of his report.
As I also have resected ribs, an 11 inch long depressed scar spanning from my scapula to under my arm, etc. I question the ethical soundness of a physician making a determination that I had no residuals of lung cancer merely from reviewing some of my medical records, without so much as seeing me, and without articulating sound medical reasons for doing so.
2. There is no indication that the examiner issued a fully informed opinion based on a complete and thorough review of all the relevant information of record. I would think this would be especially important when issuing an opinion from viewing the files, in absence of examining me.
Though the examiner notes that my service medical records were completely reviewed, he doesn’t articulate any specific post-service medical records that were reviewed. The only post-service medical record the examiner references in his report is the September 2000 pathology report, which indicated evidence of emphysematous changes. As my claim involved post-service diagnosis of disease, which is covered under §3.303(d) , it would seem that a complete and thorough review of my post-service medical records would also be necessary in order to issue an valid opinion concerning the disease.
Evidence of a substantial reasonable doubt being raised as to the examiner issuing a fully informed opinion includes:
a.) The examiner noted that my medical records did not indicate I had any unique medical conditions that are associated with asbestos. However, he failed to mention my Interstitial Lung Disease that was indicated in x-rays taken at xxx Medical Center and xxx Hospital in 2000, and confirmed with a diagnosis in a pathology report at xxx Hospital in September 2000. Interstitial Lung Disease is often linked to asbestos exposure, yet the examiner did not mention it, nor provide rationale, based on sound medical principles, for making a determination that my Interstitial Lung Disease was not a medical condition that is associated with asbestos.
b.) The examiner noted there does not appear to be anything in the medical records to support the presumptive diagnosis of exposure of asbestos.
I did not ask to be granted a presumptive diagnosis of exposure to asbestos. I clearly indicated specific work tasks I did, in specific instances, which exposed me to asbestos working as an electrician in the Air Force. Additionally, my post service medical records clearly indicate asbestos exposure.
Both my treating pulmonary physician and oncologist at xxx discussed my occupational history with me, and indicated in their medical records that it was likely I was exposed to asbestos while working as an electrician in the Air Force.
Written Notes in Chronological Record of Medical Care 10/3/2001 – Dr. xxx(In Medical Records from xxx Air Force Base) states:
“CXR rpt seen > Upper Lobe Scarring & 3 cm Left Lung SPN
Also likely asbestos exposure as electrician 1969 – 1982”
New Patient Note 10/10/2001 – xxx, MD – Oncologist
(In Medical Records from xx Air Force Base) states: “The patient’s past history is somewhat remarkable in that he worked as an electrician in the air force and was exposed to asbestos.”
The Nursing Assessment from xxx Hospital 9/29/2000 also notes under Respiratory system:
· Asbestos exposure
· Lung CA
· Cough
The examiner gave no rationale for disregarding the notations of asbestos exposure in the medical documentation. He did state that the medical records did not indicate any industrial hygiene surveys or show any evidence of being on any unique occupational health surveillance programs. However, he failed to articulate whether these types of programs, in regard to asbestos, were even in effect in the Air Force during the 70’s and early 80’s. As evidence will show that such programs were not in effect at such time – indicating there is a lack of such records, without indicating that the lack is the result of such programs not being in existence at such time, is very misleading, if not uniformed.
Additionally, the examiner stated there was no solid evidence that I was routinely exposed to asbestos. However, he did not articulate whether he was indicating that asbestos exposure would have had to been routine to have played a role in the development of my cancer, the degree of exposure would need to be to be considered routine, and what medical bases support such a decision.
Based on the above mentioned issues, it appears the examiner’s report was either very uninformed or very biased, in that he noted that I had a history of smoking and a pathology report of emphysematous changes, yet he made no notations in the report of the indications of asbestos exposure in my medical records, my diagnosis of Interstitial Lung Disease, or the restrictive patterns in my pulmonary function tests - and gave no medical bases for disregarding these in his opinion.
To make a decision that my lung cancer is secondary to my long term use of cigarettes, while failing to mention any of the evidence of record of asbestos exposure, though noting what evidence was NOT in the record -- occupational health surveillance records which were part of a program initiated AFTER I was no longer an electrician, seems rather flawed.
By not discussing the evidence OF record, the examiner gave no rationale, based on medically sound principles, for the determination that my cancer was secondary to smoking and not related to my in-service asbestos exposure. Nor did it provide a medically sound basis for the determination that I had no apparent residuals from my left lower lobe lobectomy.
As such, the report should be considered inadequate for rating purposes.
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