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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
This letter is in response to the letter (xxx) I received dated September 19, 2006.
I am working on obtaining additional evidence to submit in regard to this claim as per your request.
This has been complicated by not receiving records I have requested from the VA. I attempted to obtain medical records from the National Records Center in June 2006. I was notified that the Records Center cannot provide me with copies of those records, as they are in the possession of the VA. On August 10, 2006 I filed a VA form 3288, requesting copies of my service medical records (including my discharge physical), and as of this date I have not received such records requested by the VA.
The letter also indicates that in order to be material, the additional evidence must pertain to the reason my claim was previously denied – and in that my claim was previously denied because my service medical records do not show any respiratory problems in service or exposure to asbestos – that evidence I submit must relate to this fact.
Evidence supporting my claim includes:
RESPIRATORY PROBLEMS
The evidence of respiratory problems in service is not new (as it is in my service medical records, which are purportedly in possession of the VA), but it should qualify as material in that it relates to the reason I was previously denied.
These records would include the 14 notations in my service medical records ranging from October 9, 1970 – June 24 1996 of both upper and lower respiratory problems in service. (Atch 7e – 1 through 7e – 13, inclusive – in the package submitted to you July 31, 2006)
Notations in my service medical records which indicate respiratory problems / treatment in service include:
October 9, 1970 – URI x 1 Day
May 9, 1971 – Emergency Appointment URI - Chest Cold – Congestion. Runny Nose
May 10, 1971 - Strep Throat
December 18, 1973 – Emergency Room Visit - Pharyngitis, Sinus congestion, Sore Throat, Nonprductive cough
July 1974 – Emergency Room Visit – Flu - Sore throat, headache, pharynx – slight infection without exudates
January 12 1982 – URI - c/o sinusitis– cough 3 weeks – sore throat – nasal congestion
September 3, 1982 – URI Sinus vs. Bronchitis - Sinus problems x 2 days -throat drainage – throat mildly infected – runny stuffy nose
January 17, 1985– Emergency Care and Treatment – URI – Coughing fit lasting 45 minutes today. History of chest cold 1 month ago.
January 28, 1985 – Chronic bronchitis -c/o cough – seen in ER Jan 17 – not improving – periodic lightheadedness – white phlegm
July 1, 1985 – URI – coughing fits
January 31, 1986 Periodic Exam – in the section for notes which instructs to describe every abnormality in detail. Lungs / Chest 28 PFT FVC 94.4 FEV-1 96.8 FEV-1 / FVC 83.8
April 6, 1987 cough – rhinorrhea - nasal congestion – post nasal drip – nose congested – pharynx red
December 8, 1993 – Strep Infection – c/o cough, chills, swollen glands x 2 days
June 24, 1996 Rib Pain – Left Rib – pain for 6 months from coughing with bronchitis had a bout of bronchitis with much coughing in Dec 95 – it caused him to develop a steady left sided rib pain intercostally near the costochonral junction - over the past six months has improved a lot and is intermittent but pt is concerned since this left rib ache has not completely gone away yet.
I am not certain what other evidence I could submit to substantiate the fact that my service medical records show respiratory problems in service – other than to continue to point out that the records do, indeed, indicate both respiratory problems and treatment in service.
There may be additional service medical records which indicate respiratory problems which are not in my possession. As stated previously, I have been unable to obtain such records from the VA as of this date. As these records have not been provided to me, I request that the VA look over such records to determine if there is additional evidence of respiratory problems in the service which have been overlooked.
I also want to point out that the RO and DRO may have reached the decision that my service medical records do not show any respiratory problems in service by misinterpreting the VA examiner’s report of March 19, 2002, as well as relying on their misinterpretation of the report, rather than actually reviewing the medical records.
The examiner’s report stated “His discharge physical at the time of service did not indicate any sign of any respiratory problems.” However, the February denial states “your service medical records do not show any respiratory problems in service.” The August 2004 Statement of Case states “The examiner could not find any significant exposure to asbestos or respiratory problem or treatment in service.” As I have consistently been pointing out – my service medical records do, indeed, show respiratory problems and treatment throughout my service career. I request that the VA review my service medical records with respect to this issue prior to making another determination that my service medical records do not show any respiratory problems or treatment.
ASBESTOS EXPOSURE
Evidence of Exposure:
I have previously submitted:
1. My own statements which articulate both general and specific work duties I performed as an electrician in the Air Force from 1970 – 1983 which exposed me to asbestos.
2. Copies of work records / performance reports which supported my own statements as to the types of work I performed.
3. A handwritten note which from my treating pulmonologist at xxx Air Force Base which indicates my increased risk from smoking alone to be 10 times, and my increased risk from the synergetic effect of smoking AND asbestos exposure to be 80 times, the normal risk of developing lung cancer.
4. My medical records that include:
Documentation in the physicians notes which include:
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
N.B. – Chart & Consult & pt. Is in Error & pt. In Non-Small Cell CA & Not Small Cell. Important Differences explained to pt. e. g. Poss. Adeno CA unk 1 ° ? “
New Patient Note 10/10/2001 – xxxx, MD – Oncologist
(In Medical Records from xxx 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.”
Additionally, my medical records show a pathology proven diagnosis of Interstitial Fibrosis (diagnosed in 2000).
I am obtaining additional evidence to submit in respect to my asbestos exposure. However, one of the hardest hurdles to overcome is the VA’s reliance on occupational medical surveillance / industrial hygiene programs in order to prove exposure.
Finding the evidence to substantiate that the lack of such records reflects the fact that such programs were not in existence at the time I was an electrician has been a time consuming process. However, it is an important part of the development of my claim for two reasons:
1. If the VA continues to deny my claim based on the lack of having records from a program that the Air Force did not implement until several years after I no longer worked as an electrician prejudices my claim – in that I cannot provide evidence which does not exist due to the fact that Air Force did not even keep such records.
2. The lack of such records, and thus the occupational safety programs for asbestos exposure, is an important part of my claim. Those very safety programs which were NOT implemented until AFTER I left the electrician field would have included occupational screening. And they would have included many other important factors such as:
1. OSHA training
2. Respiratory Protection
3. Safer work practices
4. Established PEL’s (Permissible Exposure Levels)
In other words, the conditions I worked in as an electrician in the 1970’s to mid-80’s was LATER determined to be a SIGNIFICANT RISK when OSHA implemented the Construction Standard in 1986 (3 years after I had cross-trained into another field) and when the Air Force began developing their Asbestos Management Programs in the late 80’s. However, I spent 13 years working in such conditions with no safety measures being utilized.
In all fairness to my claim, I need to be able to fully develop this evidence, rather than let my claim be denied again based on the lack of occupational screening records. I trust that when the VA is made aware of the fact that such programs were not in existence, they will not continue to disregard the evidence in my record that substantiates exposure just because there is a lack of a record that wasn’t even kept at that time.
I am in the process of getting my final evidence together and plan to have it submitted within the next two weeks.
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