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MAKING A VA DISABILITY COMPENSATION CLAIM, WHAT IS "PRESUMPTIVE" SERVICE CONNECTION?

February 7, 2018

The tradition of caring for our veterans predates the founding of our nation. The General Court of the Plymouth Colony, in 1636, provided that a soldier who returned from battle “maimed would thereafter be ‘maintained competently’ for the rest of his life at the expense of the public treasury.” Veterans Benefits and Judicial Review: Historical Antecedents and the Development of the American System, at 21 (Fed Research Div of the Library of Congress, Washington DC, Mar 1992). In his Second Inaugural Address, President Lincoln committed our nation “to care for him who shall have borne the battle, and his widow, and his orphan.”

 

An individual must establish his or her status as a veteran before any VA benefits are awarded. After basic eligibility of the veteran has been established, it is necessary to demonstrate the claimant’s entitlement to a particular benefit. The claimant may be the veteran or his or her survivor or dependent. The possible benefits to the veteran include disability compensation, pension, low or no cost health care, educational assistance, life insurance, burial allowances, home loans, and others. Dependents and survivors may receive educational assistance and compensation or pension. The purpose of this article is to bring awareness to making a VA disability claim under the category of “presumptive” service connection.

 

Compensation is provided to qualifying veterans who incur a disability as a result of military service. There are no time limits to apply for this benefit. In 2015, veterans and survivors received approximately $57 billion in compensation and pension benefits, with $1.95 billion of those benefits being paid to Michigan veterans. There are five common elements in a veteran’s claim for VA benefits:

  • status as a veteran

  • existence of a disability

  • connection between the veteran’s service and the disability

  • degree of the disability

  • effective date of the disability

Collaro v West, 136 F3d 1304, 1308 (Fed Cir 1998).

 

Service connection connotes many factors but basically means that the facts, as shown by the evidence, establish that a particular injury or disease resulting in disability was incurred incident with service in the Armed Forces. 38 CFR 3.303(a). When it is established that a disability is connected to service, the claimant is eligible for an award of disability compensation. The VA presumes that specific disabilities diagnosed in certain veterans were caused by their military service. VA does this because of the unique circumstances of their military service. If one of these conditions is diagnosed in a Veteran in one of these groups, VA presumes that the circumstances of his/her service caused the condition, and disability compensation can be awarded. Several presumptions exist to reduce a veteran’s burden for establishing service connection. These include certain chronic and tropical diseases; conditions related to internment as a prisoner of war; diseases specific to exposure to ionizing radiation; diseases due to exposure to herbicides, commonly identified as Agent Orange, while serving in the Vietnam conflict; and certain undiagnosed disabilities related to service in the Persian Gulf War. 38 CFR 3.309(a)–(e), .317. Of particular note are the more commonly encountered diseases related to Vietnam veterans, which include type 2 diabetes and prostate and respiratory cancers, as well as the recently added conditions of ischemic heart disease and Parkinson’s disease. As the listing of disabling conditions is rather extensive and subject to periodic additions, it is best to consult the applicable provision of the regulation for additional guidance. Effective March 2017, the VA considers other disabilities to be presumptively related to exposure to contaminated water at the U.S. Marine Corps Base Camp Lejeune in North Carolina. These conditions include bladder, kidney, and liver cancers; non-Hodgkin’s lymphoma; Parkinson’s disease; and others. The potential exposure occurred for those who served on the base for more than 30 days between August 1, 1953, and December 31, 1987. In addition, Congress took the unusual step of authorizing health care for 15 named medical conditions for those service members and their families stationed at Camp Lejeune. As with Agent Orange, it is likely that additional medical conditions will be added to the presumptive list as scientific evidence evolves. Veterans claiming entitlement to service connection benefit from the legal presumption that the claimant is presumed to have been in sound condition when “examined, accepted and enrolled for service,” except for defects noted at time of service entry. 38 USC 1132. To take advantage of this presumption, the veteran must have served six months or more active duty. This presumption may be rebutted by clear and unmistakable evidence that the disease or defect existed prior to service and that the disease or defect was not aggravated by service. 38 CFR 3.304(b). A medical opinion is necessary to rebut this presumption.

 

For veterans injured while engaged in combat, a special presumption applies that a disease or injury alleged to have been incurred in service must be accepted by VA if consistent with the “circumstances, conditions, or hardships of such service.” 38 USC 1154(b). In fact, “the law specifically provides that service connection may be proven by satisfactory lay evidence, without the support of official records.” See Sheets v Derwinski, 2 Vet App 512, 515 (1992) (emphasis in original). This presumption may only be rebutted by VA through clear and convincing evidence to the contrary. 38 USC 1154(b). As the number of combat veterans and the locations to which they are sent grow, it likely follows that the “presumptive” list of service connected disabilities will become more and more applicable to our veterans seeking compensation from the VA.

 

If you have specific questions related to benefits available to our nation’s veterans please contact Brandon Wagner to set up a consultation at bwagner@ccglawyers.com.

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