VA Benefits: How to Establish Service-Connection by Legal Presumption.
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 - and no post on this website - is legal advice, is not meant to be legal advice, and certainly does 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. 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.
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.
If you would like to consult with an attorney at Attig Law Firm that handles VA disability compensation claims, contact us to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.
