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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
I went to my hearing in Washington armed with my two IMOs and my arguments. I actually thought my IMOs would get service connection for my husband's lung cancer. I also contacted experts who specialize in industrial medicine or toxicology to see about getting an opinion if it was more likely than not asbestos exposure had contributed to my husband's cancer.
I had several doctors respond - but one said she worked as a consultant with a VSO - and that she could help me if I signed PO to them. I never got an answer from the BVA as to whether I would be allowed to appoint a VSO, so I figured if I didn't get approved on inservice onset, there should be enough to at least get a remand on the asbestos issue. That would give me time to see if an IMO on the asbestos issue was even necessary.
The guy at the desk was very nice, but he asked why I didn't have a VSO, and I told him - and he called that VSO and had them bring a paper down for me to sign. So I signed to have the represent me.
I don't know if I made a big mistake -- but I left the hearing feeling horrible. And I am not even sure how to work with a VSO at this point.
The judge was very nice, by the way. But I didn't get along too well with the VSO. He didn't seem to have much interest in anything I brought to the hearing, what my arguments were, etc. I finally got him to take a look at the IMOs, but I am not sure how well he read them.
He kind of dismissed them as "theories written by people who had not seen my husband."
The VSO thought it would be better to try to show boots on the ground in Vietnam. I told him my husband didn't have boots on the ground. But he said you don't know what the records would show. I think my husband would have known whether he was in Vietnam or not. It doesn't seem like something a person would forget. He was in Guam at that time - but the AO stuff on Guam is not presumptive.
While I appreciate the fact he wanted to make sure everything was covered, by checking out boots on the ground, and other possible connections, I don't understand why he kept dismissing the two claims we have presented all along - inservice incurrence, and / or related to asbestos exposure. He also wanted to see about pursuing contributing factors listed on the death certificate - Respiratory failure, pancreatic mass, and jaundice. I don't actually see how those would apply because they stemmed from his lung cancer. He also said my husband wouldn't know whether he had been exposed to asbestos or not.
Anyway, I got totally rattled and upset and was crying right before the hearing. The VSO did say he would let my submit my two IMOs, but that was all. He didn't want me to submit the article one of the doctor's sent me to submit. He kept telling me the judge might not accept my "theories." I don't know why he kept referring to the IMOs as theories. They were opinions of competent medical professionals.
Then he finally let me try to explain the "theories" -- but I couldn't quite get him to understand. I read him the part of the doctor's report that explained that they measure tumor growth rate based on a tumor's "doubling time" or how long it takes a tumor to double in size. It has to double a certain number of times to reach 1 cm, and a certain number of times to reach 3 cm. (the size of my husband's).
So he says "Is there evidence in the record that your husband's tumor was one of these double time tumors?
I tried to explain that there is no such thing as a doubling time tumor. Doubling time is how they measure tumor growth. He rolled his eyes. So I tried to explain it again, and THOUGHT I was getting the point across. Then he asked what my training was. I told him a teacher. He told me I had to watch trying to sound like an expert. He said I couldn't sound like an expert. I didn't plan on trying to tell the judge I was an expert. I hadplanned on telling the judge what the experts had said (backed by hard copies of what they said).
Anyway, we weren't getting along well. I agreed to let him ask the judge to hold the record open. And I don't mind him exploring other issues. But I worked so hard to put together this claim and he acted like my IMOs (theories) didn't even matter.
So right before we went over to the hearing, his assistant reminded me that I couldn't talk like an "expert." So we were going in the hall, and I asked the VSO what to do. I said, am I not supposed to answer questions about the cancer? I am not clear on exactly what I am supposed to say or do. And he shot me a look and told me he wouldn't answer that in the hall. So off we went to the hearing room, and I was totally confused.
While we were waiting for the judge the VSO asked me "Is there evidence that your husband's cancer was 1 cm when it started?" I said it wasn't 1 cm when it started. He rolled his eyes again. I know I was aggravating him. But it wasn't 1 cm. I told him it started as a single cell and grew. It eventually, over time, grew to 3 cm.
Then he asked me as part of the questioning what types of jobs my husband had in the military. I said electrician and First Sergeant. That earned me another eye roll. He told me First Sergeant was a rank not a job. So he asked me AGAIN and gave me another chance to get it "right." What was your husband's first job in the military?" I said "Electrician." Then he asked if my husband had any other jobs. I said First Sergeant." I explained that was his job title. I wish I would have had his DD214 with me to show him 8FOOO - First Segeant - 15 years.
Anyway, I was so rattled and shook up, I ended up looking totally stupid the whole dang time.
I would have to say the judge was very nice and very respectful. The judge even asked me about my request for records for an IMO. He asked if I had received them. I told him I was trying to get a copy of my husband's discharge physical before I got an IMO because I wanted to make sure that was given to the doctor if it was available before they doctor issued an opinion. But I told him the VA couldn't find the discharge physical and so I went ahead and got the IMOs. He picked up the papers and asked if those were the IMOs and I said yes. He asked what the doctors said. Then I got rattled again. I sure didn't want the VSO rolling his eyes at me again. And I wasn't quite sure how to answer. I told him they said it started in the service. And I told him one of the doctors had called a couple of times to discuss it.
The judge seemed positive about that. He even told me about the three prongs that need to be met and said the IMOs might provide the nexus.
Thank God somebody appreciated the IMOs! And somebody thought they might provide the nexus! (I guess if you have to pick between the judge or the VSO supporting your claim, it is better to pick the judge).
Anyway -- my hearing didn't go all that well. I have no idea what to do to work with the VSO. I end up feeling like an idiot when I try to talk to him. I hope that if the judge sees an nexus, he will still rule in my favor even if the VSO doesn't want to argue the point of in-service incurrence.
But he wants to take my claim in a whole different direction now. And I don't know what to do.
Edited by free_spirit_etcLink to comment
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