How to Establish 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 even 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, or when his or her disease results from Agent Orange exposure.

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.

General Eligibility for a Legal Presumption.

In order to be eligible for the presumption, you must fit into one of the following two categories of veterans:

1. You served 90 continuous days during a period of war; or,
2. 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.

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.

There is a special set of presumptive periods for Vietnam veterans exposed to Agent Orange.

The VA Can Rebut a Legal Presumption.

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 the condition in question is known to be caused by, or related to, other events that occurred between your separation from service and diagnosis.  In the law, this concept is known as an "Intervening Cause".

Here's an easy example to understand the concept of an Intervening Cause (I 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.

Always check  the Code of Federal Regulations, or research BVA decisions and CAVC Decisions to see if there is a legal presumption available in your fact scenario:  the presumption of service connection will make your case much easier and (in theory) quicker because the law will substitute for medical evidence of service-connection.

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Here are some more posts you might want to check out:

Find out how to get the MOST IMPORTANT Document in Your VA Claim.

What are all these New Blog Categories (Shoot, Move and Communicate) about?

What is Direct Service Connection?

Explanation of Theory of Service Connection by Aggravation.

When the Law PRESUMES Service-Connection.

Service Connection of Secondary Conditions.

By Chris Attig