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Tag: CFR

Panel Application; educational benefits; 38 C.F.R. § 21.9635(o); Carr, 961 F.3d at 173; the Federal Circuit interpreted the phrase “may receive” as referring only to an initial calculation of a veteran’s entitlement and not to the amount of benefits that a person may, in fact, receive; It then concluded that the statute does not preclude an individual, who has accumulated and used a total of 48 months of educational benefits from a combination of chapters, from receiving an extension in benefits until the end of a semester. Carr, 961 F.3d at 173;

Panel Application; educational benefits; 38 C.F.R. § 21.9635(o); Carr, 961 F.3d at 173; the Federal Circuit interpreted the phrase “may receive” as referring only to an initial calculation of a veteran’s entitlement and not to the amount of benefits that a person may, in fact, receive; It then concluded that the statute does not preclude an individual, who has accumulated and used a total of 48 months of educational benefits from a combination of chapters, from receiving an extension in benefits until the end of a semester. Carr, 961 F.3d at 173;

by The Editor
July 14, 2022
0

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 16-3438SAMANTHA E. CARR, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.ROBERT M. CARR, INTERVENOROn Remand from the U.S. Court of Appeals for the Federal ...

Secretary concession SMC part of every claim for increase; The Secretary further concedes that because SMC is an issue within an increased rating claim, the Board should have considered whether the appellant filed a claim for an increased disability rating for his left eye condition earlier than January 2014 or, at a minimum, considered 38 C.F.R. § 3.400(o)(2), which allows under certain circumstances an effective date up to 1 year prior to the date of a claim for increase. Secretary’s Br. at 9.; the Secretary further concedes that, to the extent that SMC may be considered part of a claim for increased compensation, see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (concluding that the RO “should have inferred from the veteran’s request for an increase in benefits . . . a request for [SMC] whether or not it was placed in issue by the veteran”), the Board should have addressed whether the appellant sought SMC through an increased rating claim for his left eye disability prior to January 2014 or whether 38 C.F.R. § 3.400(o)(2) applied. See Secretary’s Br. at 8-10. The Court will accept the Secretary’s concession, ;

Secretary concession SMC part of every claim for increase; The Secretary further concedes that because SMC is an issue within an increased rating claim, the Board should have considered whether the appellant filed a claim for an increased disability rating for his left eye condition earlier than January 2014 or, at a minimum, considered 38 C.F.R. § 3.400(o)(2), which allows under certain circumstances an effective date up to 1 year prior to the date of a claim for increase. Secretary’s Br. at 9.; the Secretary further concedes that, to the extent that SMC may be considered part of a claim for increased compensation, see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (concluding that the RO “should have inferred from the veteran’s request for an increase in benefits . . . a request for [SMC] whether or not it was placed in issue by the veteran”), the Board should have addressed whether the appellant sought SMC through an increased rating claim for his left eye disability prior to January 2014 or whether 38 C.F.R. § 3.400(o)(2) applied. See Secretary’s Br. at 8-10. The Court will accept the Secretary’s concession, ;

by The Editor
July 13, 2022
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; Skip to content Posted in Uncategorized Tagged Case Law Post navigation Thanks for letting us know! This is how we ...

Single Judge Application; Ortiz v. McDonough; The Federal Circuit comprehensively considered whether the 2010 amendment to 38 C.F.R. § 3.304(f) was liberalizing, ultimately determining that it was, Ortiz v. McDonough, 6 F.4th at 1275-1283, 2021 U.S. App. LEXIS 22305, at *16-38; The Federal Circuit specifically disapproved of this Court’s decision in Foreman, Ortiz v. McDonough, 6 F.4th at 1275-1283, 2021 U.S. App. LEXIS 22305, at *35-38;

Single Judge Application; Ortiz v. McDonough; The Federal Circuit comprehensively considered whether the 2010 amendment to 38 C.F.R. § 3.304(f) was liberalizing, ultimately determining that it was, Ortiz v. McDonough, 6 F.4th at 1275-1283, 2021 U.S. App. LEXIS 22305, at *16-38; The Federal Circuit specifically disapproved of this Court’s decision in Foreman, Ortiz v. McDonough, 6 F.4th at 1275-1283, 2021 U.S. App. LEXIS 22305, at *35-38;

by The Editor
November 9, 2021
0

Single Judge Application; Ortiz v. McDonough; The Federal Circuit comprehensively considered whether the 2010 amendment to 38 C.F.R. § 3.304(f) was liberalizing, ultimately determining that it was, Ortiz v. ...

Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 (the Deluca factors), limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011). For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.’” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995)). If an examiner is unable to offer a nonspeculative estimate of a veteran’s functional loss due to pain, the examiner must explain why such an opinion cannot be offered. Id. at 32;

Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 (the Deluca factors), limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011). For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.’” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995)). If an examiner is unable to offer a nonspeculative estimate of a veteran’s functional loss due to pain, the examiner must explain why such an opinion cannot be offered. Id. at 32;

by The Editor
November 7, 2021
0

Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, ...

“Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304. This 10[%] disability rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10[%] for brain disease due to trauma under [DC] 9304 are not assignable in the absence of a diagnosis of non-psychotic [OBS] with brain trauma.” 2015 WL 5255331, at*8 (quoting 38 C.F.R. § 4.124a, DC 8045 (1988));

“Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304. This 10[%] disability rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10[%] for brain disease due to trauma under [DC] 9304 are not assignable in the absence of a diagnosis of non-psychotic [OBS] with brain trauma.” 2015 WL 5255331, at*8 (quoting 38 C.F.R. § 4.124a, DC 8045 (1988));

by The Editor
October 29, 2021
0

Single Judge Application; brain trauma 1970; 38 C.F.R. § 4.124, DC 8045 (1970) (providing that “urely subjective complaints, such as headache, dizziness, insomnia, tinnitus, etc., recognized as symptomatic of ...

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less than ten levels of disability for most of the conditions listed in the schedule. See generally 38 C.F.R. §§ 4.71a – 4.150 (1992). Therefore, the schedular ratings established by the Secretary for compensation purposes may not in all cases provide a sufficiently comprehensive basis for determining when a measured worsening of a particular veteran’s condition in service constitutes an “increase in disability” for purposes of establishing service connection through aggravation under section 1153. This would seem to be so where the next higher rating is more than one decile greater. Furthermore, the rating-schedule provisions may not in all cases provide the most accurate or most logical basis for determining whether there has been an “increase in disability” during service. For example, with respect to organic mental disorders and psychoneurotic disorders, the rating schedule provides for disability ratings based on a finding that the condition causes “total”, “severe”, “considerable”, “definite”, or “mild” social and industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Codes 9300-9411 (1992);

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less than ten levels of disability for most of the conditions listed in the schedule. See generally 38 C.F.R. §§ 4.71a – 4.150 (1992). Therefore, the schedular ratings established by the Secretary for compensation purposes may not in all cases provide a sufficiently comprehensive basis for determining when a measured worsening of a particular veteran’s condition in service constitutes an “increase in disability” for purposes of establishing service connection through aggravation under section 1153. This would seem to be so where the next higher rating is more than one decile greater. Furthermore, the rating-schedule provisions may not in all cases provide the most accurate or most logical basis for determining whether there has been an “increase in disability” during service. For example, with respect to organic mental disorders and psychoneurotic disorders, the rating schedule provides for disability ratings based on a finding that the condition causes “total”, “severe”, “considerable”, “definite”, or “mild” social and industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Codes 9300-9411 (1992);

by The Editor
October 28, 2021
0

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less ...

Single Judge Application; 38 C.F.R. § 20.1303; applicability Board decisions; Board decisions are “considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2019); prior decisions in other appeals “may be considered in a case to the extent that they reasonably relate to the case.” 38 C.F.R. § 20.1303;

Single Judge Application; 38 C.F.R. § 20.1303; applicability Board decisions; Board decisions are “considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2019); prior decisions in other appeals “may be considered in a case to the extent that they reasonably relate to the case.” 38 C.F.R. § 20.1303;

by The Editor
October 27, 2021
0

Single Judge Application; 38 C.F.R. § 20.1303; applicability Board decisions; Board decisions are “considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2019); prior ...

Decision Assessment Document; Shea v. Wilkie, June 20, 2019, 926 F. 3d 1362 (Fed. Cir. 2019); where claimant’s filings refer to specific medical records, and those records contain a reasonable ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under 38 C.F.R. 3.155(a);

Decision Assessment Document; Shea v. Wilkie, June 20, 2019, 926 F. 3d 1362 (Fed. Cir. 2019); where claimant’s filings refer to specific medical records, and those records contain a reasonable ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under 38 C.F.R. 3.155(a);

by The Editor
October 24, 2021
0

Decision Assessment Document; Shea v. Wilkie, June 20, 2019, 926 F. 3d 1362 (Fed. Cir. 2019); where claimant’s filings refer to specific medical records, and those records contain a ...

(1) is in writing; (2) indicates an intent to apply for veterans’ benefits; and (3) identifies the particular benefits sought.” Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019) (internal quotation marks omitted). A “[v]eteran need not refer explicitly to the name of an illness, injury, or condition” on his claim form. Sellers v. Wilkie, 965 F.3d 1328, 1335 (Fed.Cir. 2020). A high level of generality will suffice, so long as the “benefit sought . . . can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea, 926 F.3d at 1368 (internal quotation marks omitted).; Had Mr. Germany’s mental health records been before the RO in the first instance in evaluating his Claim, that might have been sufficient to qualify as an informal claim. See id. at 1370. In Shea, we held that the VA erred by not construing the veteran’s claim to cover psychiatric conditions referenced in her medical records but not explicitly listed on her claim form. Id; 2 In 2015, the VA implemented a rule that claims for disability benefits must be filed on a standard form and revised 38 C.F.R. § 3.155. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014).

(1) is in writing; (2) indicates an intent to apply for veterans’ benefits; and (3) identifies the particular benefits sought.” Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019) (internal quotation marks omitted). A “[v]eteran need not refer explicitly to the name of an illness, injury, or condition” on his claim form. Sellers v. Wilkie, 965 F.3d 1328, 1335 (Fed.Cir. 2020). A high level of generality will suffice, so long as the “benefit sought . . . can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea, 926 F.3d at 1368 (internal quotation marks omitted).; Had Mr. Germany’s mental health records been before the RO in the first instance in evaluating his Claim, that might have been sufficient to qualify as an informal claim. See id. at 1370. In Shea, we held that the VA erred by not construing the veteran’s claim to cover psychiatric conditions referenced in her medical records but not explicitly listed on her claim form. Id; 2 In 2015, the VA implemented a rule that claims for disability benefits must be filed on a standard form and revised 38 C.F.R. § 3.155. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014).

by The Editor
October 20, 2021
0

FedCir Application; 38 C.F.R. § 3.155(a); Sellers v. Wilkie, 965 F.3d 1328, 1335 (Fed.Cir. 2020); Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019); appears to argue that ...

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