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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 am working on drafting my final arguments to present to the BVA. Note - I already had my hearing in September. So this would just be a follow-up written argument.
This argument addresses the in-service onset part of the claim.
I am certainly open to feedback
IN SERVICE ONSET
1. My husband was diagnosed with lung cancer, and had a 3.1 cm tumor removed, within a short time after his retirement from a 28-year career in the Air Force.
2. §3.303(d) clearly states “Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.”
3. M21-1MR, Part IV, Subpart ii, Chapter 2, Section B, 3 c. states “Consider whether direct service connection may be established under 38 CFR 3.303(d), even if service connection is claimed for a disease diagnosed after service has ended. Service connection may be granted for a disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service.
Do not attempt to establish presumptive service connection for chronic or tropical diseases until the possibility of establishing direct service connection has been ruled out.”
4. Competent medical evidence establishes my husband’s lung cancer had its inception during service, and thus was incurred coincident with his service in the Armed Forces. § 3.303 (a)
5. Two Independent Medical Opinions were submitted at my September 3, 2013 Board Hearing. Both specialists clearly stated that it is more likely than not that my husband’s cancer had its onset while he was serving in the Air Force.
6. Both opinions were written by specialists who are Board Certified in their respective fields in oncology. Both specialists are faculty members at major medical schools and have applicable experience in clinical practice. Both opinions were based on pertinent evidence in the record. Both opinions were well-articulated.
7. There is no medical opinion, nor medical evidence in the record, that conflicts with the recently submitted medical opinions.
8. Though the Supplemental Statement of Case pointed out my husband’s 1996 chest x-ray did not show evidence of cancer, both specialists indicated that it takes a significant amount of time from the point when a cancer starts until it is detectable by x-ray. Dr. XXX, a radiation oncologist, pointed out that chest x-rays can be poor instruments for detecting early stage lung cancer, that false negatives are well documented, and that chest x-rays are known to miss the majority of lung cancers for most of the tumor’s lifespan. This is further supported by evidence from peer reviewed journal articles submitted during my husband’s lifetime.
9. The VA medical examiner’s October 19, 2007 opinion is a rather brief, handwritten note that opines that the signs and symptoms reported in my husband’s SMRs were less likely than not early manifestations of my husband’s cancer.
10. Both Independent Medical Opinions addressed the fact that lung cancer is most often asymptomatic during much of its development. This is further supported by evidence my husband submitted from the U.S. National Cancer Institute's Surveillance, Epidemiology and End Results Program SEER's Training Modules, U.S. Preventive Services Task Force Guide to Clinical Preventive Services, the American Cancer Society, as well as excerpts from articles in peer reviewed medical journals.
11. The VA examiner did not indicate my husband’s lung cancer was not present in service. He merely stated the signs and symptoms reported in my husband’s SMRs were less likely than not early manifestations of the lung cancer. Additionally, he only mentioned the viral respiratory illnesses, and did not discuss the non-viral respiratory illnesses, such as my husband’s chronic bronchitis (initially diagnosed in January 1985).
12. The VA examiner did not actually address the issue of whether my husband’s cancer had its onset in service. However, there was ample evidence in the C-file at that time asserting my husband’s cancer had its onset while he was in the service, and the VA examiner did not refute this in his opinion.
13. There is nothing in the VA examiner's opinion that conflicts with the two Independent Medical Opinions, or the other evidence we have submitted in support of the claim.
14. Though the Supplemental Statement of Case indicated there is no statement from Dr. XXXX in the file which suggests that my husband’s cancer was present during service, my husband submitted the handwritten note from Dr. XXXX when he filed his initial claim for lung cancer.
15. Dr.XXXX noted the doubling times of various types of cancer, starred the “Adeno CA,” noted it was 3.1 cm, and noted DT (doubling time) 6 months. He additionally noted “15 yrs till 1 cm.” Dr.XXX then noted several more sizes, and then noted “3.25 ß 35.”
16. My husband submitted supportive evidence to show that what Dr. XXX had noted was based on sound medical reasoning. The evidence submitted supported the fact that his tumor was 3.1 cm when diagnosed, that adenocarcinoma of the lung has a standard doubling time of 6 months (180 days), that evidence from several sources showed that it generally takes a tumor doubling 30 times to reach the size of 1 cm, 30 doublings X 180 days = 15 years (which Dr. XXX noted “15 yrs till 1 cm”) and that it generally takes a tumor doubling 35 times to reach the size my husband’s tumor was when it was diagnosed.
17. Though Dr.XXXX handwritten note was not fully-articulated, the supporting evidence shows it was based on established medical principles. Considering the fact that my husband had a 3.1 cm tumor removed 2 years post-retirement, his treating physician noting that it would take that type of cancer 15 years to reach the size of 1 cm certainly suggests that my husband’s cancer was present in service.
18. The two recently submitted Independent Medical Opinions further substantiated the same information.
19. The only competent medical evidence in the record that specifically addresses whether it is more likely than not my husband’s cancer had its onset in service clearly establishes that it did.
20. Entitlement to service connection based on doubling time and growth rates of cancer is neither unique, nor rare. Service connection has been granted on this basis in numerous claims.
21. “When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).” (BVA Citation Nr: 1317665 DOCKET NO. 00-04 807 Decision Date: 05/30/13)
22. I believe that I have established that it is more likely than not that my husband’s cancer started during the time that he was serving in the Air Force, and I respectfully request that service connection be granted for his illness and his death.
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