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Material found herein should not be interpreted as legal advice.
Legal Disclaimer Notices
Code of Federal Regulations -
VA Site
The law or statutes is your key to success. Understanding the law may
require the assistance of a real lawyer or someone familiar with their meaning and
how they are applied to veterans, especially under
Part 4, Sched of Rating Disability;
also Part 3, Adjudication, and
Parts 0 - 17 TOC,
Parts 18 - 61 TOC,
Part 19, VBA Appeals Regulations,
and
and Part 20, VBA Rules of Practice
GPO CFR Search Page,
and GPO Order Form.
Questions or comments regarding this service? Contact the GPO Access User Support Team
by Internet e-mail at
GPOaccess@gpo.gov; by telephone at (202) 512-1530 or toll free at (888) 293-6498; by fax at (202) 512-1262.
Disclaimer:
Title 38 CFR online is as of August, 2003;
Order Version as of July, 2005.
The purpose of this Section is to be a quick reference to both appeal cases,
their findings and decisions and what statutes were referenced.
You should go to those statute references and review what the basis of law was
in coming to a decision.
Do visit U.S. Code Ref Guide.
In the world of VA Disability Claims, compensation is awarded (or denied)
for the following conditions: service-connected, non service-connected,
and medical conditions aggravated by military service (pre-existing conditions.)
Visit Terminology Section for in-depth research.
As a student-of-the-process, you will find the complete appeal case reference, eg,
Appellant Cotant (00-2382), in full text format.
Then you will find a synopsis of that case to direct your attention to
(without all the extra reading) and points of interest, as follows:
V.A. Claim Case References
CFR Title 38 References
V.A. Reviewer
§ 3.6 Duty Periods.
§ 3.102 Reasonable Doubt.
§ 3.103 Procedural due process and appellate rights.
§ 3.104 Finality of decisions.
§ 3.105 Revision of decisions.
§ 3.110 Computation of time limit.
§ 3.155 Informal claims.
§ 3.156 New and material evidence.
§ 3.159 Department of Veterans Affairs assistance in developing claims.
§ 3.300 Claims based on the effects of tobacco products.
§ 3.303 Principles relating to service connection. V.A. Reviewer
§ 3.304 Direct service connection; wartime and peacetime.
§ 3.305 Direct service connection; peacetime service
before January 1, 1947.
§ 3.306 Aggravation of preservice disability. V.A. Reviewer
§ 3.307 Presumptive service connection for chronic, tropical
or prisoner-of-war related disease,
or disease associated with exposure
to certain herbicide agents;
wartime and service on or after January 1, 1947.
V.A. Reviewers Guidelines - Presumptive Diseases and Herbicide Agents
§ 3.308 Presumptive service connection; peacetime service
before January 1, 1947.
§ 3.309 Disease subject to presumptive service connection. Chart Presumptive Diseases
Cardiovascular-renal disease, including hypertension.
(This term applies to combination involvement of the type of arterio-
sclerosis, nephritis, and organic heart disease, and since hypertension
is an early symptom long preceding the development of those diseases in
their more obvious forms, a disabling hypertension within the 1-year
period will be given the same benefit of service connection as any of
the chronic diseases listed.) .. in the list (Diabetes mellitus.)
For complete details.
§ 3.310 Proximate results, secondary conditions.
See Secondary Conditions to Diabetes Claims
See "Kidney Disorder Case", ie, CRF (Chronic Renal Failure)
Also Secondary Conditons Case w/Award VBA Case No. 9412692
Another Fine Case VBA Case No. 9832924 Moody v. Principi
§ 3.311 Claims based on exposure to ionizing radiation.
DIC - Dependency and Indemnity Compensation
§ 3.312 Cause of Death.
§ 3.322 DIC benefits for survivors of certain veterans
rated totally disabled at time of death.
§ 3.5 Dependency and Indemnity Compensation (DIC)
See a widow's (appellant) claim @ Citation No. 0320491 08/18/03 (Before 04 Amendments)
See 38 U.S.C. § 1310 Deaths entitling survivors to DIC
See the Amendments (2004) re: (A) 10/year or (B) 5/year requirement
In general, a dependent of a veteran that was totally disabled for either 10 years,
or 5 years from release from active duty. Military.com has a good sheet.
See VA Site Dependent could be widow, parent, or children of a certain age.
§ 3.313 Claims based on service in Vietnam.
V.A. Reviewer
§ 3.316 Claims based on chronic effects of exposure to mustard gas
and Lewisite.
§ 3.321 General rating considerations. V.A. Reviewer
§ 3.326 (Physical) Examinations. V.A. Reviewer
§ 3.327 Reexaminations.
§ 3.340 Total and permanent total ratings and unemployability.
§ 3.350 Special monthly compensation ratings. See impotent citing (Remand)
See impotent citing denied under § 3.310 Proximate results
Granted; prostate surgery basis citing and diabetic condition (neuropathy) citing.
See § 1114 Rates of wartime disability compensation
§ 3.816 (Special Benefits) Awards under the Nehmer Court Orders.
§ 3.2600 Review of benefit claims decisions.
§ 4.115 Nephritis.
§ 4.119 Schedule of Ratings--Endocrine System. § 4.25 Combined Ratings Table
See 38 USC § 1155 Authority for schedule for rating disabilities
Diabetes Mellitus Diabetes Insipidus
Complications of Diabetes,ie, secondary conditions
§ 4.15 - 4.18 Unemployability Packet See also Unemployability Factor.
More on this subject, click here - V.A. Reviewer Guidelines
Evidence Requirements Rating Practices and Procedures
General Requirements Unemployability Marginal Employment
7.16 FACTORS RELATING TO UNEMPLOYABILITY
OR MARGINAL EMPLOYMENT OF FARMERS
§ 4.16 Total disability ratings for compensation
based on unemployability of the individual.
§ 4.17 Total disability ratings for pension
based on unemployability and age of the individual.
§ 4.18 Unemployability
§ 20.302 Time limit for filing Notice of Disagreement,
Substantive Appeal, and response to Supplemental Statement
of the Case.
§ 20.304 Filing additional evidence does not extend
time limit for appeal.
§ 20.1403 Unmistakable Errors.
§ 20.1100 Rule 1100. Finality of decisions of the Board.
§ 20.1102 Harmless Error.
§ 20.1103 Finality of determinations of the agency of
original jurisdiction where appeal is not perfected.
U.S.C. References of Title 38
V.A. Reviewer Searching USC
§ 101 Definitions
§ 1101 Definitions
§ 1110 Basic entitlement
§ 1111 Presumption of sound condition See Diabetes Research.
§ 1112 Presumptions relating to certain diseases and disabilities
§ 1116 Presumptions of service connection for diseases
§ 1137 Wartime presumptions for certain veterans
§ 1153 Aggravation V.A. Reviewer
§ 1154 Consideration to be accorded time, place,
and circumstances of service
CHAPTER 5 - AUTHORITY AND DUTIES OF THE SECRETARY
Specific Sections re in Chapter 5
§ 501 Rules and regulations
§ 511 Decisions of the Secretary; finality
CHAPTER 51 - CLAIMS, EFFECTIVE DATES, AND PAYMENTS
Specific Sections re in Chapter 51
§ 5100 Definition of "claimant"
§ 5102 Application forms furnished upon request; notice to
claimants of incomplete applications
§ 5103A Duty to Assist Claimants
§ 5103 Notice to claimants of required information and evidence
§ 5106 Furnishing of information by other agencies
§ 5107 Claimant responsibility; benefit of the doubt
§ 5107 Benefit of the Doubt @ Your Advocate
§ 5108 Reopening disallowed claims
§ 5109 Independent medical opinions
§ 5109A Revision of decisions on grounds of clear
and unmistakable error
§ 5126 Benefits not to be denied
based on lack of mailing address
§ 7104 Jurisdiction of the Board
§ 7105 Filing of Notice of Disagreement and Appeal NOD
§ 7252 Jurisdiction; finality of decisions
§ 7266 Notice of Appeal
Case Study: Pre-Existing Medical Condition
The Board found, pursuant to
38 C.F.R. § 3.304(b)
(1999), that clear and unmistakable evidence demonstrated that the veteran's "right hip arthritis" preexisted service, even though that disability was not noted during his May 1980 entrance examination.
You should then go to Title 38/CFR and find section 3.304(b) for details.
Still sound like "greek" to you?
Get a
VSO -- pronto.
Otherwise, please continue with more case CFR references.
The Board further found, by virtue of the application of the
benefit-of-the-doubt rule under 38 U.S.C. § 5107(b), that the "positive evidence was in a state of equipoise with the negative evidence on the question of whether or not there was an increase in severity of the preexisting disorder during service" and thus concluded that the veteran's hip condition had increased in severity during service. R. at 7. The Board then determined that, pursuant to 38 C.F.R. § 3.306 (1999), the aggravation of his disability was due to the natural progression of the disease:
/cut/
In February 2002, the Court issued a supplemental briefing order directing the parties to address the impact on this case of the opinion of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Davis (John F.) v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). Cotant v. Principi, 15 Vet.App. 431, 431-32 (2002) (per curiam order). In that opinion, the Federal Circuit applied, without analysis, section 1153 in a case where the preexisting condition was not noted at entry but, as provided for in section 1111, had been found to be preexisting by the Board based on clear and unmistakable evidence, thereby rebutting the presumption of sound condition established by section 1111. Davis (John F.), 276 F.3d at 1343-44.
The appellant filed a supplemental brief in March 2002; he argues that Davis (John F.) is irrelevant to this appeal because the decision did not "address the mutual exclusivity of [section] 1111 and [section] 1153 or construe, in application or otherwise, their relationship to one another." Supplemental (Suppl.) Br. at 2. The Secretary filed a supplemental brief in April 2002; he argues that the Federal Circuit's opinion in Davis (John F.) is instructive in clarifying (1) that section 1111 contains only the presumption of soundness, and not an additional presumption of aggravation as urged by the appellant and (2) that section 1153 establishes and defines the presumption of aggravation. Suppl. Br. at 6-9. Moreover, the Secretary contends that Davis (John F.) and several opinions of this Court exemplify that sections 1111 and 1153 have both been applied to a single claim and are not "mutually exclusive." Suppl. Br. at 11. The appellant filed a reply brief disagreeing with the Secretary's position and arguing that Davis (John F.) held only that "'evidence of temporary flare-ups symptomatic of an underlying preexisting condition, alone, is not sufficient for a non-combat veteran to show increased disability under [section 1153] unless the underlying condition is worsened.'" Suppl. Reply Br. at 1-2 (quoting Davis (John F.), 276 F.3d at 1346-47).
You are now "armed" with the complete case findings, and excerpts of the findings
that may apply to your case. In this instance, a pre-existing medical
conditon, one of the three major categories, and contributing to a large portion of
all claims based upon grounds of aggravation of medical condition.
With an understanding of the case, the applicable law references quoted, you can
better plan your claim filing and/or communicate better with a VSO officer.
As these sections and references grow with additional case publishing, the
infrastructure will be adjusted for ease of navigation both between major
sections and key items being referenced, eg, Title 38, CFR.
This is not going to happen over night. Again, if you are
in some sort of rush, do contact a
VSO -- pronto.
I have many objectives in publishing this aid or guide and foremost is to
help as many veterans as physically possible without having to meet them.
I would like to take each and every important excerpt of a
case and link it or cross-reference it to a separate page with the exact
passage of the applicable law.
"Hang in there! Be tough! And, get on the ball !"
.. you'll be glad you did
Lawyer: "Who are you???"
Moi: .. yah'worse nightmare, mate.
Landmark Ruling @ All Vietnam-era Vets in S.E.A.
Forum Bulletin Board
Diabetes & Anemia
Medicine
Your Benefit Column
More Links
1) Terminology
United States Code
Code of Fed Regs
Service Connection
2) Case Studies
Search Cases
Citings
Legal Precedence
Definition
Plausible
"Well-Grounded"
3)
CFR Reference
ADJUDICATION
RATING
Key CFRs
Secondary Conditions
Unemployability
4)
United States Code (USC)
VA Evidence Responsibility
Presumption Law
Contact your U.S. Senator or
Congress Representative.
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"Buk" Frank
Vet Advocate
(702) 363-3290
Army Engineers
697th "Pipeline"
Qui Nhon to An Khe
Army Bio
Mailing Address:
Frank Picchione
8613 Freeport Ln
Las Vegas, NV
89117-5566
"All advocate services
our provided
to veterans
free of charge"
"All gave some ..
some gave it all."
Notice: command patch
may be worn as
"Combat Unit"
on Class A Uniforms
USARSUPTHAI
U.S. Army Support,
Thailand
Effective 1 October 1992,
AR 670-1,
Ch. 28, Para. 17, b (3) authorized
service members stationed
in Thailand,
Laos or Cambodia to wear
the distinctive unit insignia
on the right sleeve of
their military uniform
(combat patch).
Source:
519th Tiger Pawz
Award Authority
for VSM/VCM in Thailand
AR 600-8-22,
Ch. 9, Para 19
Vietnam Service Medal
Date Criteria
Vietnam Campaign Medal
Eligibility
Meritorious
Unit Citation
Cross of Gallantry
MACV/Army Units
same dates
VSM
Other Services
check your regs
Armed Forces
Expeditionary
Service
Medal
AFEM History
Vietnam
01 Jul 58 - 03 Jul 65
(AFEM earned for Vietnam service
prior to 04 Jul 65
may be exchanged for Vietnam Service Medal (VSM),
but may not revert back to AFEM)
Laos
19 Apr 61 - 07 Oct 62
Cambodia
29 Mar 73 - 15 Aug 73
Thailand
29 Mar 73 - 15 Aug 73
(Only in 'Direct Support' of Cambodia)
Operation
EAGLE PULL
[Cambodia]
11-13 Apr 1975
Operation
FREQUENT WIND
[Evacuation of Saigon]
29-30 Apr 1975
Source
National Defense
Service Medal
An Era of War ..
we were called
to serve ..
Disclaimer:
Representation
by VSO Reps
Only
Counselors
can only offer
free advice
based upon
experience.
Vietnam Veterans
Against War
Ray Parrish
USAF 72-75
(Counseling)
Important Tip
Medical opinions are crucial to winning claims. In NSC claims,
you can submit medical reports from doctors seen for your Social Security disability claim
and vice versa. Congress has ruled that service connection must be granted for certain problems
if there is proof that the symptoms showed up within a specified period of time *
(usually one year) after your discharge. It doesn't matter how long it takes for
the doctors to confirm a diagnosis. When trying to prove service connection for
other conditions, be sure to tell the doctor that they don't have to be
100% certain that the problem is service connected, only 51% sure. Veterans are given the
“benefit of the doubt” if the doctor thinks that the condition “is as likely as not” to have been caused by or present during military service.
* AO/Diabetes Mellitus
has no time limit
associated with onset
and
is presumptive
condition(s)
for Vietnam Veterans
On Medical Records,
Physician Opinions,
and Service-Connected
plus Secondary Conditions **
CFR § 3.310 **
See USC Authority
Presumptions
Sound Condition -
§ 1111
and
§ 1153 - Aggravation
§ 5107 Benefit of Doubt
§ 5109 - Medical Opinion
Legal Precedence
Definition
Plausible
"Well-Grounded"
Claims
Case Studies
Terminology
Forum
United States Code
CFR Reference
Service Connection
Secondary Conditions
VA Evidence Responsibility
Presumption Law
Providing
Independent Medical
Evaluations
38 U.S.C. § 5109
Independent
Medical Opinions
C.F.R. 38 § 3.326
(Physical) Examinations
V.A. Reviewer
VSO Info
Directory
Search
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