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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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deerdown

Bad cp need attorney

Question

So I got the results of my c&p exam they're saying that depression was preexisting based on some things that I told them afterwards after I got out and while I was in the military because of MST I need help I'm in Michigan can anybody give me the number of a good attorney my entrance exam is free and clear

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There are many  claims at the BVA that involved a  ‘pre-existing ‘condition.These excerpts contain the regulations that control VA when stating a condition pre existed service.The VA must have ‘clear and unmistakable evidence of any pre existing condition.

“For purposes of establishing service connection, every Appellant shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  See 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b).  According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports.  A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception.  38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994).”

 

If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Appellant's service.  Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003).  To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition.  Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).

 https://www.va.gov/vetapp17/files3/1715370.txt

Although the VA had no clear and convincing evidence of any pre existing condition, this vet was denied for other reasons.

However 

In this case the BVA stated:

“Consequently, after review of the record, the Board finds that there is no undebatable evidence of a pre-existing disability and the record does not contain clear and unmistakable evidence that a seizure disorder preexisted service.  Therefore, as an initial matter, the presumption of soundness is not rebutted, and service connection on the basis that any seizure disability was aggravated by service is not warranted.  What remains for consideration is whether such disabilities were instead incurred in or otherwise related to service directly.”

ORDER

 

The appeal seeking to reopen a claim of service connection for a cervical spine disability is denied.

The claim of service connection for a seizure disorder is reopened; service connection for a seizure disorder is granted on de novo review.

Service connection for a psychiatric disability, to include as secondary to a seizure disorder, is granted.

https://www.va.gov/vetapp15/files6/1547310.txt

This veteran was represented by John Worman, attorney

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