On February 21, 2013, the Federal Circuit (Fed. Cir.) issued a published opinion in Walker v. Shinseki overturning an entire body of case law that had developed regarding establishing service connection under 38 C.F.R. § 3.303(b). The opinion can be accessed at Walker v. Shinseki.
In Walker v. Shinseki, the Fed. Cir. held that chronicity is “only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Further, “[t]he decisions of the Veterans Court that have extended continuity of symptomatology under § 3.303(b) to chronic diseases not enumerated in § 3.309(a) are hereby abrogated.” “Continuity of symptomatology” in § 3.303(b) has no application “other than to afford an alternative route to service connection for specific chronic diseases. Suggestions or holdings to the contrary in any decisions of the Veterans Court, and dictum to the contrary in our precedent, are incorrect and of no effect.”
In lay terms, if you are trying to establish service-connection through chronicity/continuity of symptomatology for a disease not specifically listed in 38 C.F.R. § 3.309(a), that methodology was overturned. There are other aspects of this opinion that I’ll explore in future posts, to include how this will apply retroactively and what burden is necessary to establish that a chronic disease enumerated in 38 C.F.R. § 3.309(a) manifested itself while in service.
If you have questions or concerns about your eligibility for veterans benefits, please do not hesitate to contact me for a free consultation at sdirector@FRE-L.com or (732) 382-6070.