Hite v. Shinseki (01/08/2010) "Mrs. Hite also states that the VA failed to notify her of the information and evidence needed to substantiate her claim, as required by 38 U.S.C. §5103(a). Mrs. Hite disputes that she received a March 2004 notification letter from the VA. Although failure to notify a claimant of rights or deadlines may be a ground of appropriate relief, the burden of proving that such error occurred, and whether the error was harmful, is on the claimant."

Harrison v. Shinseki (02/03/2010) "Whether records are missing from Ms. Harrison’s VA file is a question of fact and thus not within this court’s jurisdiction.Claim dismissed. "

Toole v. Shinseki (02/03/2010) "Decision denying Mrs. Toole’s claim for service connection for the cause of her husband’s death, dependency and indemnity compensation, and Dependent’s Educational Assistance benefits."

Rodrique v. Shinseki (02/04/2010) "Department of Veterans Affairs (“VA”) has no obligation to provide a medical opinion under 38 U.S.C. § 5103A(d) when the appellant has not satisfied even the low threshold for proof of medical nexus that would mandate a VA medical examination."

Rizzo v. Shinseki (09/08/2009) "The Department of Veterans Affairs (VA) has no obligation to present affirmative evidence of a VA physician’s qualifications during Board proceedings, absent a challenge by the veteran."

Phillips v. Shinseki (09/25/2009) "Whether the daughters of the deceased veteran-claimants may be substituted for their fathers so that they can pursue either an “accrued-benefits claim” under 38 U.S.C. § 5121. Held: Substitution of an accrued-benefits claimant is appropriate when the veteran-claimant dies after a case has been submitted and the denial of substitution would adversely affect the accrued-benefits claim ."

Reizenstein v. Shinseki (09/29/2009) "38 C.F.R. § 3.343(a), which provides in relevant part: Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Held: 38 C.F.R. § 3.343(a) does not apply to assignments of retrospective staged ratings that include a temporary total disability rating."

Price v. Shinseki (10/08/2009) "Whether, under the state of the law at the time of the Board’s decision in 2003, an earlier claim that was still open because the veteran had not been notified of its denial was rendered final by a later decision denying a claim for service connection for the same disability."

Pomon v. Shinseki (10/09/2009) "Pomon’s assertion of entitlement to 100% disability, supported by the results of a recent examination, is a challenge to factual determinations by the Board and the application of regulations to those facts. The argument that the test results before the Board may have been inadvertently switched with someone else’s results are likewise factual allegations. As such, this court has no jurisdiction over Pomon’s claims."

Cushman v. Shinseki (08/12/2009) "A veteran is entitled to disability benefits upon a showing that he meets the eligibility requirements set forth in the governing statutes and regulations. We conclude that such entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.We find that this right was violated due to the presence of an improperly altered medical record in Mr. Cushman’s file."

Sharp v. US (08/26/2009) "SBP payments are not to be reduced by the amount of DIC payments to those surviving spouses who receive DIC by virtue of their having remarried after the age of 57."

Scott v. Peake (10/16/2008) When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition."

Faust v. West (02/15/2000) Board of Veterans' Appeals (BVA or Board) reduced from 100% to 70% his Department of Veterans Affairs (VA) disability rating for service-connected post-traumatic stress disorder (PTSD). The veteran had originally been evaluated as 100% disabled based on nonmedical criteria and that he no longer meets those nonmedical criteria, and thus, the Court holds that the Board was not clearly erroneous in deciding to reduce the veteran's rating based on his employability."

Richard v. West (11/30/95) "Because a veteran's claim to disability compensation under chapter 11 of title 38 is terminated by his or her death, a veteran--and therefore a veteran's estate--cannot have a protected property interest arising from "existing rules or understandings" in such compensation"

Adams v. Shinseki (06/15/09) "The implicit denial rule applies where a regional office’s decision provides a veteran with reasonable notice that his claim for benefits was denied. Whether or not the regional office’s decision was appealed has no bearing on the reasonableness of the notice afforded by that decision"

Skoczen v. Shinseki (05/07/09) Under the general procedures of the VCAA, a claimant must submit a plausible claim for benefits. Once the claimant steps over that rather low hurdle, VA’s duty to assist under section 5103A starts. From this point forward, VA has the obligation to assist the veteran in supporting his claim. If zero evidence is produced in support of a material issue, that indicates at least two possibilities. It may be that no evidence exists to support the particular issue, in which case VA can rule against the veteran on that issue. Alternatively, VA may have failed to satisfy its duty to assist, that failure being the cause of the lack of supporting evidence, in which case the claimant can contend that VA should have used further efforts and thus did not comply with its statutory duty to assist."

Comer v. Shinseki (01/16/09) The VA must consider whether a TDIU award is warranted whenever "a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability". The earliest effective date for an award based on a request to reopen is the date the application to reopen was filed; only by filing a CUE can benefits retroactive to the date of the original RO decision be obtained."

Cole v. Shinseki (02/05/09)Mr. Cole’s contentions—that the VA medical examiner’s opinion is “conclusory” and is “without a factual predicate”—clearly attack the factual sufficiency of the evidence relied upon in denying his service connection claim. The contentions therefore are outside of this court’s jurisdiction.

Holton v. Shinseki (05/09/2009) An injury or disease will be deemed to have been incurred in the line of duty if it occurred at almost any time during a veteran’s active service—even during authorized leave. To be eligible for disability compensation, however, it is not enough for a veteran to show that he incurred a disease or injury while in service; he must also show that he has a present disability and that there is a nexus between that disability and his in-service injury or disease

Tarver v. Shinseki (03/05/2009) The surviving spouse, children, and parents of a deceased veteran may qualify for dependency and indemnity compensation (“DIC”) if the veteran died from a service-connected or compensable disability. 38 U.S.C. § 1310. In addition, the surviving spouse and children may qualify for DIC if the veteran received, or was “entitled to receive,” benefits for a service-connected disability that was rated totally disabling for the 10-year period preceding the veteran’s death.

Robinson v. Shinseki (03/03/2009) Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

Moore v. Shinseki (02/10/2009) The Veterans Court erred when it determined that Moore’s service medical records were not relevant because they pre-dated the period for which he sought disability compensation. By regulation, the VA is specifically required to assess a disability “in relation to its history” when making disability ratings determinations.

Haas v. Peake (10/09/2008) 38 U.S.C. § 1116(a)(1)(A), which governs the provision of benefits to veterans who may have been exposed to Agent Orange or other herbicides during the Vietnam War and have subsequently developed one of a specified set of diseases. The statute presumes herbicide exposure, and consequently provides for a presumption of service connection, if the veteran has one of certain specified diseases and served "in the Republic of Vietnam". The presumption of service connection applies only to those servicemembers who physically set foot in the Republic of Vietnam.

Haas v. Peake (05/08/2008) This case calls on us to address whether veterans who served on ships off the coast of Vietnam during the Vietnam War served "in the Republic of Vietnam" and thus are entitled to the presumption of service connection if they suffer from one of the listed diseases.

Moran v. Peake (05/02/2008) we hold the term "engaged in combat with the enemy" in 38 U.S.C. Sec. 1154(b) requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, as determined on a case-by-case basis. A showing of no more than service in a general "combat area" or "combat zone" is not sufficient.

Groves v. Peake ()5/01/2008) The plain language of38 C.F.R. Sec. 3.303(b) establishes a presumption of service connection (rebuttable only by "clearly attributable intercurrent causes") for a chronic disease which manifests during service and then again at any later date, however remote.

Davis v. Shinseki (02/02/2009) the Secretary has a limited duty to notify a claimant of what information is necessary to complete an application when the claimant submits an incomplete application. 38 U.S.C. Sec. 5102(b). The Secretary's duty to provide general notification of information and evidence necessary to substantiate the claim does not arise until the application is substantially complete. 38 U.S.C. Sec. 5103(a).

Gallegos v. Peake (12/31/2008) VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence.

Cox v. Nicholson (12/19/2007) We hold that VA may satisfy its duty to assist by providing a medical examination conducted by one able to provide "competent medical evidence" under 38 C.F.R. Sec. 3.159(a)(1). Accordingly, VA satisfied its duty to assist when it provided a medical examination performed by one able to provide competent medical evidence; here, a nurse practitioner. Addtionally, Where a claimant asserts that the Secretary has committed a first-element notice error, i.e., failure to advise a claimant regarding the information and evidence necessary to substantiate a claim, prejudice is presumed.The burden then shifts to the Secretary to demonstrate that there was no error or that the claimant was not prejudiced by any failure to give notice as to this element.”

Collins v. Shinseki(02/11/2009) 38 U.S.C. sec. 5110. Subsection (a) of Sec. 5110 provides that the earliest effective date is the date of filing the application for the claim."

BVA Dkt. 0318982 (10/25/2005) In this case, the evidence reflects that for the period August 1, 1990, to October 9, 1999, the veteran was in receipt of VA compensation benefits as well as OWCP benefits through the Department of Labor. Concurrent payments of VA disability compensation and OWCP benefits are prohibited when based on the same disability.

BVA 0528669 (04/21/2008) When a rating has continued for a long period at the same level (5 years or more), any rating reduction must be based on an examination that is as complete as the examinations that formed the basis for the original rating and that the condition not be likely to return to its previous level.On or after September 13, 1960, an award of VA benefits cannot be approved for payment of compensation concurrently with compensation from OWCP and, in such instances, an election to receive benefits from either agency is final. There is no right of reelection.

BVA 9704962 (05/22/1998) If a veteran is entitled to compensation from the Office of Workers' Compensation Programs (OWCP) in the Department of Labor, the agency responsible for administering the FECA, and is also entitled to VA compensation for the same disability,he must elect which benefit he will receive. An award cannot be approved for the payment of compensation concurrently with compensation from OWCP. There is no prohibition against the payment of benefits under the FECA and from VA when such benefits are not based on the same disability.