Sunday, October 31, 2010

Definition of "claim" and "five elements of a claim"

Definition of a "claim".
"Since its creation, the Court has struggled with refining a precise definition of a claim; it has seen a great many cases in which veterans have not understood the difference between VA claims and claims for service-connected disabilities."
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"Meaning of "claim" set forth in VA regulations: The Secretary
has defined the term "claim" as follows:
Claim - Application means a formal or informal communication in
writing requesting a determination of entitlement, or evidencing a
belief in entitlement, to a benefit. 38 C.F.R. 3.1(p) (2000); see Brannon v. West, 12 Vet.App. 32, 34-35 (1998). The purpose and function of a claim in the context of the VA adjudication process is:
General. A specific claim in the form prescribed by the
Secretary must be filed in order for benefits to be paid to any
individual under the laws administered by VA. (38 U.S.C. [] 5101(a
)). A claim by a veteran for compensation may be considered to be a
claim for pension; and a claim by a veteran for pension may be
considered to be a claim for compensation. The greater benefit will
be awarded, unless the claimant specifically elects the lesser
benefit.
38 C.F.R. 3.151(a) (2000) (boldface italic emphasis added); see Brannon,
supra."

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"In Roebuck v. Nicholson, 20 Vet. App. 307 (2006), the Court observed that the definition of a "claim" includes all theories pertaining "to the same benefit for the same disability." Id. at 313; see Bingham v. Principi, 18 Vet.App. 470, 474 (2004), aff'd, 421 F.3d 1346 (Fed. Cir. 2005). "
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"See 38 U.S.C. 1110 (under section 1110, a service-connected claim must result from an injury or disease incurred or aggravated in service); Winn v. Brown, 8 Vet.App. 510, 516 (1996); 38 C.F.R. 3.303(c), 4.9 (1998)."

Five elements of a claim:
Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998) (claim for disability compensation benefits has five elements:
(1) veteran status,
(2) existence of a disability,
(3) a connection between the veteran's service and the disability,
(4) degree of disability, and
(5)effective date of the disability)

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