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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.-
- 4 replies
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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
ShuMan
Vets,
At what rating (if any) do you think the below C&P will be documented?
As always, thank you so much!!!!
1. Diagnosis
------------
a. List the claimed condition(s) that pertain to this DBQ:
R Shoulder
b. Select diagnoses associated with the claimed condition(s) (check all that
apply):
[X] Shoulder impingement syndrome
Side affected: [X] Right [ ] Left [ ] Both
ICD Code: M75.41
Date of diagnosis: Right 2009
[X] Other (specify):
Other diagnosis: Avulsion injury to superior aspect of the distal clavicle
Side affected: Right
ICD code: S52
Date of diagnosis (right side): 2009
********************************************************************
c. Comments, if any:
NA
d. Was an opinion requested about this condition?
[ ] Yes [X] No [ ] N/A
2. Medical history
------------------
a. Describe the history (including onset and course) of the Veteran's
shoulder
or arm condition (brief summary):
The Veteran reports he developed some shoulder pain with lifting sand
bags.
b. Dominant hand:
[X] Right [ ] Left [ ] Ambidextrous
c. Does the Veteran report flare-ups of the shoulder or arm?
[X] Yes [ ] No
If yes, document the Veteran's description of the flare-ups in his
or
her own words:
When I did any thing heavy like lift air compressors when I was in the
service, it would hurt. Now a days I feel it when I do yard work or
digging. Or if I hold it in one position for too long.
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
d. Does the Veteran report having any functional loss or functional
impairment
of the joint or extremity being evaluated on this DBQ (regardless of
repetitive use)?
[X] Yes [ ] No
If yes, document the Veteran's description of functional loss or
functional impairment in his or her own words:
Manual labor hurts it.
3. Range of motion (ROM) and functional limitation
--------------------------------------------------
a. Initial range of motion
Right Shoulder
--------------
[ ] All Normal
[X] Abnormal or outside of normal range
[ ] Unable to test (please explain)
[ ] Not indicated (please explain)
Flexion (0 to 180): 0 to 50 degrees
Abduction (0 to 180): 0 to 50 degrees
External rotation (0 to 90): 0 to 65 degrees
Internal rotation (0 to 90): 0 to 90 degrees
If ROM is outside of normal range, but is normal for the Veteran (for
reasons other than a shoulder condition, such as age, body habitus,
neurologic disease), please describe:
It is difficult to assess due to his level of anticipatory pain or
marginal effort.
If abnormal, does the range of motion itself contribute to functional
loss? [ ] Yes (please explain) [X] No
Description of pain (select best response):
Pain noted on exam but does not result in/cause functional loss
If noted on exam, which ROM exhibited pain (select all that apply)?
Flexion, Abduction, External rotation
Is there evidence of pain with weight bearing? [ ] Yes [X] No
Is there objective evidence of localized tenderness or pain on palpation of
the joint or associated soft tissue? [X] Yes [ ] No
If yes, describe including location, severity and relationship to
condition(s):
Anterior shoulder, not joint space or not able to localize
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
Left Shoulder
-------------
[ ] All Normal
[X] Abnormal or outside of normal range
[ ] Unable to test (please explain)
[ ] Not indicated (please explain)
Flexion (0 to 180): 0 to 180 degrees
Abduction (0 to 180): 0 to 150 degrees
External rotation (0 to 90): 0 to 80 degrees
Internal rotation (0 to 90): 0 to 90 degrees
If abnormal, does the range of motion itself contribute to functional
loss? [ ] Yes (please explain) [X] No
Description of pain (select best response):
Pain noted on exam but does not result in/cause functional loss
If noted on exam, which ROM exhibited pain (select all that apply)?
Abduction, External rotation
Is there evidence of pain with weight bearing? [ ] Yes [X] No
Is there objective evidence of localized tenderness or pain on palpation of
the joint or associated soft tissue? [X] Yes [ ] No
If yes, describe including location, severity and relationship to
condition(s):
Anterior shoulder
b. Observed repetitive use
Right Shoulder
--------------
Is the Veteran able to perform repetitive use testing with at least three
repetitions? [X] Yes [ ] No
Is there additional functional loss or range of motion after three
repetitions? [ ] Yes [X] No
Left Shoulder
-------------
Is the Veteran able to perform repetitive use testing with at least three
repetitions? [X] Yes [ ] No
Is there additional functional loss or range of motion after three
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
repetitions? [ ] Yes [X] No
c. Repeated use over time
Right Shoulder
--------------
Is the Veteran being examined immediately after repetitive use over time?
[X] Yes [ ] No
Does pain, weakness, fatigability or incoordination significantly limit
functional ability with repeated use over a period of time?
[ ] Yes [X] No [ ] Unable to say w/o mere speculation
Left Shoulder
-------------
Is the Veteran being examined immediately after repetitive use over time?
[X] Yes [ ] No
Does pain, weakness, fatigability or incoordination significantly limit
functional ability with repeated use over a period of time?
[ ] Yes [X] No [ ] Unable to say w/o mere speculation
d. Flare-ups
Right Shoulder
--------------
Is the exam being conducted during a flare-up? [ ] Yes [X] No
Does pain, weakness, fatigability or incoordination significantly limit
functional ability with flare-ups?
[ ] Yes [ ] No [X] Unable to say w/o mere speculation
If unable to say w/o mere speculation, please explain:
Not currenlty in a flare up.
Left Shoulder
-------------
Is the exam being conducted during a flare-up? [ ] Yes [X] No
Does pain, weakness, fatigability or incoordination significantly limit
functional ability with flare-ups?
[ ] Yes [X] No [ ] Unable to say w/o mere speculation
e. Additional factors contributing to disability
Right Shoulder
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
--------------
In addition to those addressed above, are there additional contributing
factors of disability? Please select all that apply and describe: None
Left Shoulder
-------------
In addition to those addressed above, are there additional contributing
factors of disability? Please select all that apply and describe: None
4. Muscle strength testing
--------------------------
a. Muscle strength - Rate strength according to the following scale:
0/5 No muscle movement
1/5 Palpable or visible muscle contraction, but no joint movement
2/5 Active movement with gravity eliminated
3/5 Active movement against gravity
4/5 Active movement against some resistance
5/5 Normal strength
Right Shoulder: Rate Strength:
Forward flexion: 4/5
Abduction: 4/5
Is there a reduction in muscle strength? [X] Yes [ ] No
If yes, is the reduction entirely due to the claimed condition in the
Diagnosis Section? [ ] Yes [X] No
If no (the reduction is not entirely due to the claimed condition),
provide rationale:
Questionable effort
Left Shoulder: Rate Strength:
Forward flexion: 5/5
Abduction: 5/5
Is there a reduction in muscle strength? [ ] Yes [X] No
b. Does the Veteran have muscle atrophy?
[ ] Yes [X] No
c. Comments, if any:
NA
5. Ankylosis
------------
Complete this section if the Veteran has ankylosis of scapulohumeral
(glenohumeral) articulation (shoulder joint) (i.e., the scapula and humerus
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
move as one piece).
a. Indicate severity of ankylosis and side affected (check all that apply):
Right side:
[ ] Ankylosis in abduction up to 60 degrees; can reach mouth and head
(Favorable ankylosis)
[ ] Ankylosis in abduction between favorable and unfavorable
(Intermediate ankylosis)
[ ] Ankylosis in abduction at 25 degrees or less from side (Unfavorable
ankylosis)
[X] No ankylosis
Left side:
[ ] Ankylosis in abduction up to 60 degrees; can reach mouth and head
(Favorable ankylosis)
[ ] Ankylosis in abduction between favorable and unfavorable
(Intermediate ankylosis)
[ ] Ankylosis in abduction at 25 degrees or less from side (Unfavorable
ankylosis)
[X] No ankylosis
b. Comments, if any:
NA
6. Rotator cuff conditions
--------------------------
Is rotator cuff condition suspected?
Right Shoulder: [X] Yes [ ] No
If "Yes" complete the following:
Hawkins' Impingement Test (Forward flex the arm to 90 degrees with
the
elbow bent to 90 degrees. Internally rotate arm. Pain on internal rotation
indicates a positive test; may signify rotator cuff tendinopathy or tear.)
[ ] Positive [X] Negative [ ] Unable to perform [ ] N/A
Empty-can Test (Abduct arm to 90 degrees and forward flex 30 degrees.
Patient turns thumbs down and resists downward force applied by the
examiner. Weakness indicates a positive test; may indicate rotator cuff
pathology, including supraspinatus tendinopathy or tear.)
[ ] Positive [X] Negative [ ] Unable to perform [ ] N/A
External Rotation/ Infraspinatus Strength Test (Patient holds arms at
side
with elbow flexed 90 degrees. Patient externally rotates against
resistance. Weakness indicates a positive test; may be associated with
infraspinatus tendinopathy or tear.)
[X] Positive [ ] Negative [ ] Unable to perform [ ] N/A
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
Lift-off Subscapularis Test (Patient internally rotates arm behind lower
back, pushes against examiner's hand. Weakness indicates a positive
test;
may indicate subscapularis tendinopathy or tear.)
[X] Positive [ ] Negative [ ] Unable to perform [ ] N/A
Left Shoulder: [ ] Yes [X] No
7. Shoulder instability, dislocation or labral pathology
--------------------------------------------------------
a. Is shoulder instability, dislocation or labral pathology suspected?
[ ] Yes [X] No
8. Clavicle, scapula, acromioclavicular (AC) joint and sternoclavicular joint
conditions
------------------------------------------------------------------------------
a. Is a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular
joint condition suspected?
[ ] Yes [X] No
9. Conditions or impairments of the humerus
-------------------------------------------
a. Does the Veteran have loss of head (flail shoulder), nonunion (false flail
shoulder), or fibrous union of the humerus?
[ ] Yes [X] No
b. Does the Veteran have malunion of the humerus with moderate or marked
deformity?
[ ] Yes [X] No
c. Does the humerus condition affect range of motion of the shoulder
(glenohumeral) joint?
No response provided
d. Comments, if any:
NA
10. Surgical procedures
-----------------------
No response provided
11. Other pertinent physical findings, complications, conditions, signs,
symptoms and scars
------------------------------------------------------------------------
a. Does the Veteran have any other pertinent physical findings,
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
complications,
conditions, signs or symptoms related to any conditions listed in the
Diagnosis Section above?
[X] Yes [ ] No
If yes, describe (brief summary):
Pain anterior and not in proximity of R distal clavicular
injury/avulsion or impingement.
b. Does the Veteran have any scars (surgical or otherwise) related to any
conditions or to the treatment of any conditions listed in the Diagnosis
Section above?
[ ] Yes [X] No
c. Comments, if any:
NA
12. Assistive devices
---------------------
a. Does the Veteran use any assistive devices?
[ ] Yes [X] No
b. If the Veteran uses any assistive devices, specify the condition and
identify the assistive device used for each condition:
NA
13. Remaining effective function of the extremities
---------------------------------------------------
Due to the Veteran's shoulder and/or arm conditions, is there functional
impairment of an extremity such that no effective function remains other than
that which would be equally well served by an amputation with prosthesis?
(Functions of the upper extremity include grasping, manipulation, etc., while
functions for the lower extremity include balance and propulsion, etc.)
[ ] Yes, functioning is so diminished that amputation with prosthesis would
equally serve the Veteran.
[X] No
14. Diagnostic testing
----------------------
a. Have imaging studies of the shoulder been performed and are the results
available?
[X] Yes [ ] No
If yes, is degenerative or traumatic arthritis documented?
[ ] Yes [X] No
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
b. Are there any other significant diagnostic test findings or results?
[X] Yes [ ] No
If yes, provide type of test or procedure, date and results (brief
summary):
10/30/ 2009 R shoulder showed evidence of R chronic changes suggestive
of old injury.
c. If any test results are other than normal, indicate relationship of
abnormal
findings to diagnosed conditions:
The Veteran's current report of pain does not correlated anatomically
to the
area of past injury or impingement.
15. Functional impact
---------------------
Regardless of the Veteran's current employment status, do the
condition(s)
listed in the Diagnosis Section impact his or her ability to perform any type
of occupational task (such as standing, walking, lifting, sitting, etc.)?
[X] Yes [ ] No
16. Remarks, if any:
--------------------
Vista Imaging R shoulder films 10/30/2009 were interpreted by the radiologist
as: A small well-corticated diaphram and the superior aspect of the distal
clavicle, likely chronic injury. Previous films on 04/23/2009 were interpreted
by the radiologist as "AC joint hypertrophy, which can contribute to
impingement.
No additional remarks.
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ShuMan
Ended up with 20% for this one.
Vync
It looks possible that you might be able to get a 20% rating for your right shoulder due to limited ROM. The values I highlighted above show significantly limited ROM. It appears that the impingement
Vync
Good luck! Remember, there are three components to direct SC claims: 1. Proof of an injury/diagnosis in service 2. Proof you have it now 3. Doctor's IMO/nexus "least as likely as not" or "50%/50%" (or
7 answers to this question
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