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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
broncovet
The guide below is an excellent source for Vets on applying for some specific disability benefits.
SOURCE:
James A. Bunker
Executive Director
National Gulf War Resource Center
2611 SW 17th Street
Topeka, KS 66604
Phone: Toll free 866-531-7183
Fax:785-235-6531
Email: jim@ngwrc.org
Example to reopen due to a CUE This is based on a case where a veteran tried to reopen a claim that was denied in 1999. It was rightfully denied as the veteran had a diagnosed illness of IBS. As per the intent of congress letter and the OGC the veteran claim could not be claimed under 3.317, and the veteran did not have any symptom in service. After the law change took effect in March 2002 the veteran re-filed due to the new law. The claim was denied stating the veteran did not have new and material evidence. The VSO did not advise an appeal on the new presumptive law a sound means for the appeal. The veterans new claim for IBS, in because of Routen v. West, and Spencer v. Brown, is actually an entirely new claim that, as a matter of law, does not need to be supported by new and material evidence because it is based on an intervening substantive change in VA regulations. When a provision of law or regulation creates a new basis of entitlement to benefits, as the Congress adding the new section effective March 2002, an applicants claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation.
In Routen v. West, the Federal Circuit reaffirmed its earlier decision in Spencer, stating: There is a good argument that, if a new law provides for benefits not previously available, even though grounded on some but not all of the same facts adjudicated under an earlier law, a new cause of action is created along with a new entitlement to a remedy. Thus, if the old law required proof of facts A, B, and C, and the new law requires proof of facts A, B, and D, a veteran who lost the A, B, C case under the old law because he could not establish C would seem free to claim under the new law, assuming he can establish A, B, and D IBS CUE I would like to have my claim for my IBS that was filed as due to gulf war illness under section 3.317 reopened due to the clear and unmistakable errors made by the adjudicator. The adjudicator in my decision, did not address the presumption of the illness for IBS as it is found in 38 U.S.C. 1117(a)(2) (B) and the Court's holding in Gutierrez v. Principi, (2004). Instead, the adjudicator erred by only on a nexus statement to if my IBS started in the service. IBS is a presumptive illness in CFR 38 section 3.317 (a)(2)(B)(3) Functional gastrointestinal disorders (FGID).
The presumptive date is December 31, 2016 for the signs to manifest. IBS does not have to be in the veterans’ service records as the examiner was looking for. In addition, the veteran does not have to prove any link to any of the exposure, that claimant had during the war as the examiner. (SEE 2004 Gutierrez v. Principi) As my statement over the years to my doctor’s show, I have met the 30% rating. As the adjudicator failed to apply the law in my case right, and he failed in giving me a proper statement of the case so that I could defend my case properly. I am entitled to have my claim reopened due to these clear and unmistakable errors. See (Stankevich v. Nicholson2006) https://www.facebook.com/groups/Gulfwarvet/ www.ngwrc.org www.ngwrc.net
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broncovet
The guide below is an excellent source for Vets on applying for some specific disability benefits. SOURCE: James A. Bunker Executive Director National Gulf War Resource Center
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