VA Benefits: How to Establish Service-Connection by Legal Presumption.By Chris Attig | Permalink
December 31st in VA Benefits.
This is the fourth post in a series: “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. You can read the first entry by clicking here. You can read the second entry by clicking here. You can read the third entry by clicking here.
This post will discuss the third way to establish service-connection: “Service Connection by Legal Presumption”.
It is difficult for any veteran to produce medical evidence showing that it is “as likely as not” that their disease or injury occurred in service. It is event harder when that veteran’s disease or injury occurred when he was a prisoner of war, or when she was exposed to radiation during service. In those case, medical evidence is almost never available; to help veterans in these – and many more – situations, Congress created a rule that said that when a particular disease manifested within a certain period after the veteran’s service, the VA should presume that the disease was service-connected. This rule essentially becomes the legal “bridge” or the “nexus” between the veteran’s current disability and the veterans’ in-service injury.
In order to be eligible for the presumption, you must fit into one of the following two categories of veterans:
- You served 90 continuous days during a period of war; or,
- You were a peacetime veteran – 90 continuous days after January 1, 1947 – and have been diagnosed with a particular tropical disease.
In other words, peacetime veterans are eligible for presumptive service connection for certain tropical diseases only.
Once a veteran has met this eligibility requirement, all the veteran has to show is that the disease manifested to a degree of a 10% impairment, within the presumptive period that is outlined in the statute or regulation for that disease. You can prove this by medical evidence and/or competent lay evidence. Keep in mind, too, that the disease does not need to be diagnosed within the presumptive period – the veteran need only provide evidence of characteristic symptoms of the disease within the presumptive period.
How long is the presumptive period? Here is the lawyer’s favorite answer – it depends. The period varies depending on the particular class of veteran and the particular disease. For example, if tuberculosis manifests within three (3) years of discharge, it may be presumed service-connected. If multiple sclerosis manifests within 7 years of discharge, it may be presumed service-connected. Also, there is a special set of presumptive periods for Vietnam veterans exposed to Agent Orange. Here’s a link that discusses how the VA recently established service-connection by legal presumption for “blue water” Navy vets for certain diseases linked to Agent Orange exposure.
Any legal presumption can be overcome, and this one is no exception. The VA can overcome this presumption by producing affirmative evidence that the condition was not service-connected. Typically, this will be easier for the VA to show when there is an injury that is recognized to cause certain diseases and disabilities which occurs between separation from service and the onset of the condition.
Here’s an example (we borrowed this example from the Veterans’ Benefits Manual, found at page 120.) A former POW is seeking service-connection by presumption for a particular type of back-injury; that same POW suffered a severe back injury in a car accident occurring right after separation from service. This might be affirmative evidence that is sufficient for VA to overcome the presumption of service connection.
If your claim for VA benefits will be based on service-connection by legal presumption, or if you are not sure if your disease or disability is eligible for a legal presumption, a Veteran Service Organization or a VA Benefits lawyer should be able to help you determine if the legal presumptions apply to your situation.
The Attig Law Firm represents U.S. Veterans who have been denied disability benefits for injuries that resulted from their military service. The Firm currently represents peace-time and war-time veterans of all branches of the military, at all levels of the claim process (VA Regional Office, Board of Veterans’ Appeals, and the Court of Appeals for Veterans’ Claims). Contact the Attig Law Firm if you would like to discuss your claim for disability benefits before the VA.
No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans. The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, their may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.
It is very important that we note that each and every Veteran’s claim is different. Just because we were able to secure substantial past-due benefits for one Veteran does not mean or imply that we will be able to do so for you. In some cases, we may not be able to secure you any financial compensation due to the facts of your particular case.
It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.