hadit.com Veteran to Veteran LLC
 
   
Tell A Friend!   Forum Log In Forum Registration Search Site Map      
Contact Us
 
Veterans Law References

U.S.C. United States Code
United States Code is the law and the U.S.C. is the governments official copy of the code.

U.S.C.A. United States Code Annotated

U.S.C.A. contain everything that is printed in the official U.S. Code but also include annotations to case law relevant to the particular statute.

U.S.C.S. U.S. Code Service
Like the U.S.C.A., the U.S.C.S. contains everything that is printed in the official U.S. Code but also include annotations to case law relevant to the particular statute.

C.F.R. Code of Federal Regulations

The C.F.R. is the interpretation of the law.

VA M-21 Compensation and Pension Manual

VA M-21-4 C & P Authorization Procedures

VA M28-3 Vocational Rehabilitation Internal Control in Vocational Rehabilitation and Counseling


VA M29-1 VBA Insurance Operations Manual
     
Confusing Right? Just remember the U.S.C. is the law, the C.F.R. is how they interpret the law and last but certainly not least is the V.A. adjudication manuals that is how they apply the law. The section of the law that covers the veterans benefits is Title 38 in the U.S.C. in the C.F.R. is usually written 38 C.F.R. or something similar, V.A. frequently requested manuals are listed below.
           

NOD Notice of Disagreement SAMPLE
Motion for Reconsideration, Claim of Clear and Unmistakable Error Example
Writ of Mandamus Example
Useful Cases
Code of Federal Regulations Title 38 Index Parts 0 -17
Code of Federal Regulations Title 38 Index Parts 18 - end

You may also want to try our Terms defined page locate under the menu item Definitions

 

Useful Cases

  • 89-114 Schafrath v. Derwinski (HTML or PDF) TPDF) The appellant’s disability rating for his right elbow was reduced from 10 percent to non-compensable on the basis of a single examination and without consideration either of his claims of continued disability due to functional loss caused by pain or of the entire recorded history of his right-elbow condition.  The BVA also failed to provide an adequate statement of the reasons or bases for aspects of its decision or to assist the appellant in obtaining requested VA medical records.  For these reasons, the decision would normally be vacated and the matter remanded to the Board for further development of the record, including a contemporaneous medical examination, and consideration, with a statement of reasons or bases, of the applicability of the regulations discussed above, in accordance with this opinion.

    However, because this is a reduction case, not an increase case, as explained in part III. D., above, the BVA decision is reversed and the case is remanded to the Board with instructions that appellant’s disability rating of 10 percent be reinstated, retroactive to the date of reduction, January 1, 1989.
     

  • 90-1002 Hohol v. Derwinski (HTML or PDF) The United States Court of Veterans Appeals has "invariably held that the [VA] is not free to ignore its own regulations, even if the appellant fails to raise the issue on appeal."
  • 90-1078 Dofflemyer v. Derwinski (HTML or PDF) It is the holding of the Court that the Board of Veterans' Appeals failed to apply 38 C.F.R. §§ 3.343(a) and 3.344(a), thus rendering its decision to reduce appellant's disability rating from 100% to 10% void ab initio as not in accordance with the law.  Accordingly, the BVA decision of June 4, 1990, is REVERSED and the case REMANDED to the BVA with instructions that appellant's prior disability rating of 100% for undifferentiated schizophrenia and the corresponding benefits be reinstated effective to May 1, 1989.
     
  • 90-147 Gleicher v. Derwinski (HTML or PDF) After a review of all the evidence we are left with a "definite and firm conviction that a mistake has been committed" concerning the BVA's finding of fact as to the appellant's employability.  Gilbert, slip op. at 4.  The BVA decision regarding appellant's employability is implausible and thus clearly erroneous.  Appellant is therefore entitled to total unemployability under 38 C.F.R. § 4.16 as a matter of law because he meets the requirements of the regulation.  Accordingly, while we AFFIRM the BVA as to its decision that a 70% rating was appropriate for the appellant's service-connected mental disorder, we REVERSE the decision as to employability and REMAND the case to the BVA with directions to assign the appellant a 100% rating in accordance with 38 C.F.R. § 4.16.
     

  • 90-222 Murincsak v. Derwinski (HTML or PDF) The VA clearly violated its duty to assist, and, thus, the veteran's claim is remanded for readjudication in light of the veteran's entire medical evidence, including both the SSA records and the Long Beach VAMC records, and for an evaluation of his claim under 38 C.F.R. § 4.16(c). Having concluded that legal error was committed, the December 5, 1989, BVA decision is VACATED and REMANDED for proceedings consistent with this Court's opinion.
    It is so ordered.
     

  • 90-312 Karnas v. Derwinski (HTML or PDF) We hold, therefore, that for purposes of FCAA section 506 and the EAJA, the term "case pending" includes only cases pending before the Court on the merits on or after October 29, 1992; it does not include cases in which the only matters pending before the Court are EAJA applications. Since the Court lacks power to entertain them, the motions for attorney fees and expenses are DISMISSED.
     

  • 91-1903 Ternus v. Brown (HTML or PDF) For the reasons stated above, we deny the Secretary's motion for summary affirmance, REVERSE the BVA's September 1991 decision, and REMAND the matter for the Board to reinstate appellant's 100% schedular rating for service-connected schizophrenia from January 1, 1986 (the effective date of the October 1985 rating reduction), to September 13, 1989 (the effective date of the increase to a 100% rating).
     

  • 91-542 Albert Olson v. Brown (HTML or PDF) Accordingly, as to the issue of IU, we reverse the November 27, 1990, BVA decision and remand the matter for the Board to reinstate appellant's former total rating based on individual unemployability, with an effective date of July 2, 1981, the date that benefits were terminated.  The BVA decision is affirmed as to the denial of an increased rating for schizophrenia.
     

  • 91-771 Raymond Smith v. Brown (HTML or PDF) The Court VACATES the January 3, 1991, Board decision and REMANDS the matter for re-adjudication consistent with this opinion.  "A remand is meant to entail a critical examination of the justification for the decision.  The Court expects that the BVA will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case."  Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).
     

  • 92-325 Kevin Brown v. Brown (HTML or PDF) Where, as here, the Board has reduced a veteran's rating without observance of applicable law and regulation, such a rating is void ab initio and the Court will set it aside as "not in accordance with law".  38 U.S.C.A. § 7261(a)(3)(A) (West 1991); see Horowitz, __ Vet.App. at __, slip op. at 9; Dofflemeyer, 2 Vet.App. at 282; Schafrath, 1 Vet.App. at 595-96.  Therefore, upon consideration of the record and the submissions of the parties, the Court reverses the November 13, 1991, BVA decision and remands the matter to the Board for reinstatement of the veteran's prior 30% disability rating. REVERSED AND REMANDED.
     

  • 93-526 Kitchens v. Brown (HTML or PDF) Where, as here, the Court finds that the BVA has reduced a veteran's rating without observing applicable laws and regulation, such a rating is void ab initio and the Court will set it aside as "not in accordance with the law."  38 U.S.C. § 7261(a)(3)(A);  see Brown, supra; Horowitz v. Brown, 5 Vet.App. 217 (1993).  Accordingly, the BVA decision of December 14, 1992, is REVERSED and the case REMANDED to the Board with instructions to reinstate the appellant's prior 100 percent rating effective the date of the reduction.  

              KRAMER, Judge, concurring:  In sustaining a rating reduction for epilepsy, the Board of Veterans' Appeals, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8910 (1994), must make, based on adequate evidence of record, a finding as to the frequency and type of seizures that the veteran is experiencing.  That finding must then, under the DC, support a rating at the reduced level.  Here neither the medical opinion relied on by the Board nor the lay statements provide such evidence, and consequently the Board's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."  38 U.S.C. § 7261(a)(3)(A).
     

  • 94-323 Gerald Hayes v. Brown (HTML or PDF) Therefore, for the reasons stated above, the Secretary's motion is granted as to the claims for frozen feet and a stomach disorder, and those portions of the BVA decision are AFFIRMED. The Secretary's motion is denied with respect to the claims for thrombophlebitis and degenerative arthritis of multiple joints, and those portions of the BVA decision are VACATED and REMANDED. The Secretary's motion is denied with respect to the claim for a pulmonary embolus, and that portion of the BVA decision REVERSED with instructions to reinstate the 10% rating from the date of the reduction.
     

  • 97-1178 Colayong v. West (HTML or PDF) Upon consideration of the foregoing analysis, the record on appeal, the briefs of the parties, and oral argument, the Court reverses the May 22, 1997, BVA decision as to the TDIU claim and remands that matter for the Board to award that rating. See Bielby, supra. Upon further such consideration, the Court vacates the 1997 BVA decision as to the rating-increase claim for the veteran's Pott's disease and remands that matter for expeditious further development and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 1110, 5107, 7104(a), (d)(1); 38 C.F.R. §§ 3.321(b), 3.344(a), 4.1, 4.2, 4.7, 4.10, 4.23, 4.25, 4.40, 4.45, 4.71a, DC 5286, 19.9, 20.901(c), (d); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) -- all consistent with this opinion and in accordance with section 302 of the Veterans' Benefits Improvements Act, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for "expeditious treatment" for claims remanded by BVA or the Court). See Allday, 7 Vet.App. at 533‑34. The Secretary's motion is denied. On remand, the appellant will be free to submit additional evidence and argument on the remanded claim in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order). The Court notes that a remand by this Court and by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall, 11 Vet.App. at 271. A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the new Board final decision is mailed to the appellant. See Marsh v. West, 11 Vet.App. 468, 472 (1998).
     

  • 97-192 Trilles v. West (HTML or PDF) The Court stated in Villeza, 9 Vet.App.at 357, that a person seeking to restore status as a "benefits‑eligible claimant" after a forfeiture has been imposed under 38 U.S.C. § 6103(a) must do so "by a preponderance of the evidence." This evidentiary standard was drawn from Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991) (holding that purported widow of veteran must establish "survivor" status with "preponderating evidence"), and Sarmiento v. Brown, 7 Vet.App. 80, 84 (1994) (applying Aguilar to determination of "veteran" status). Those two cases were recently reaffirmed by the full Court in Laruan v. West, 11 Vet.App. 80, 86 (1981) (en banc). To assist in the determination of what application the preponderance‑of‑the‑evidence burden of proof should have to the question of status as a "benefits‑eligible claimant" for purposes both of challenging a proposed forfeiture under 38 U.S.C. §§ 6103, 6104, or 6105 (or a proposed bar to benefits under 38 U.S.C. § 5303) and of seeking to revoke a forfeiture (or a bar) so imposed, please provide an analysis of the basis for the burden to present preponderance of the evidence in terms of all applicable law, regulation, legislative and regulatory history, and historical precedent in connection with the VA benefits adjudication system (and that of all predecessor agencies) and the extent to which this analysis supports or does not support application of a preponderance‑of-the‑evidence burden to establishing "veteran" status (including status as a "veteran" by virtue of "active military, naval, or air service" during a period of active or inactive duty for training as defined in 38 U.S.C. § 101(24) and 38 C.F.R. § 3.6(a) (1998)), "survivor" status, and "dependent" status (including status as a so‑called "helpless child" under 38 U.S.C. § 101(a)(4)(A)(ii) and 38 C.F.R. § 3.356 (1998)), as well as status as a "benefits-eligible claimant," Villeza, supra. See Laruan, 11 Vet.App. at 86-91 (Kramer and Steinberg, JJ., dissenting).
     

  • 97-2204 Greyzck v. West (HTML or PDF) Upon consideration of the parties' arguments and a review of the record of evidence, the Court AFFIRMS that part of the Board's decision that found the 1961 VARO decision was not the result of clear and unmistakable error. The Court REVERSES that part of the Board's decision that found the appellant's claim for service connection of a low back disorder was not well grounded, and REMANDS that matter for further proceedings.
     

  • 98-100 Faust v. West (HTML or PDF) Upon consideration of the foregoing analysis, the ROA, and the parties' pleadings, the Court holds that the appellant has not demonstrated that the BVA committed error ‑- in its findings of fact, conclusions of law, procedural processes, articulation of reasons or bases, or consideration of the benefit-of-the-doubt rule -- that would warrant reversal or remand under 38 U.S.C. §§ 1110, 5107(a), 7104(a) or (d)(1), or 7261, 38 C.F.R. § 4.132, DC 9411 (1996), or 38 C.F.R. §§ 3.105(e), 3.343, 3.344, 4.1, 4.2, 4.10, or 4.130, DC 9411 (1999). Therefore, the Court affirms the October 28, 1997, BVA decision. The parties' motions for single-judge disposition are denied. AFFIRMED.
     

  • 90-613 Peyton v. Derwinski (HTML or PDF) For the foregoing reasons, the Board's March 15, 1990, decision is vacated and the matter is remanded to the Board for readjudication in accordance with 38 U.S.C. § 4004(d)(1) and Gilbert and for disposition in accordance with this opinion. VACATED AND REMANDED.