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What is a “Presumptive” service-connected claim?

Let’s start with the basics of “service-connection”

Normally, to prove a claim for service connected compensation, a veteran must give the Department of Veterans Affairs (VA) medical evidence or, in certain circumstances, lay (non-expert) evidence of each of the following:

  1. a current disability – meaning some current medical condition that impacts you;
  2. an in-service event or aggravation of a disease or injury; and
  3. a nexus – or connection – between the claimed in-service disease or injury and the present disability. In most cases, a physician’s opinion explaining the nexus is required

Many cases from the U.S. Court of Appeals for Veterans Claims explain this, but see Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009), and Hickson v. West, 12 Vet. App. 247, 253 (1999), for good explanations of service-connection.

Just remember, you usually cannot win a case for service-connected compensation unless you can prove:  1) a current disability, 2) an in-service event or aggravation of disease or injury, AND 3) a nexus between the current disability and the in-service disease or injury.

Presumptive service-connected disabilities:

Symbols for Nuclear Biological Chemical

Nuclear Biological Chemical – Possible Causes of VA Service-Connected Disabilities

In some cases, the VA makes it easier for veterans to prove service-connection.  For example, what happens when a veteran contracts a serious disease or develops a condition that does not fit into the “normal” requirements for service connection or a disease which was not known to be a problem at the time (such as developing cancer years later from exposure to toxins).  This is an area where VA “presumptions” can help.

Most of the time, if a condition can’t be proven to be service-connected, VA will deny it.  However, when a veteran’s disability is presumed by VA and federal law to come from some unique circumstances that they were exposed to during their service, service-connected compensation can be granted without the veteran having to prove that they are injured due to a specific event.  

What is a “presumption?”

A presumption is a way for VA to grant service-connection for specific disabilities once some basic facts have been established.  For example, if a veteran set foot in Vietnam, for a specific amount of time, anytime between January 9, 1962 and May 7, 1975 or was in or near the Korean demilitarized zone anytime between April 1, 1968 and August 31, 1971, then the veteran would NOT have to prove a specific incident where they were exposed to Agent Orange or other herbicides in order to be granted service connection for a related medical condition (i.e. ischemic heart disease, type II diabetes, various forms of cancer, and any of the other enumerated diseases) because VA presumes that the veteran was exposed just because they served in that location. A presumption gets rid of the veteran’s requirement to establish facts that they would otherwise be required to prove in order to prevail on their claim.

In other words, the veteran does not have to prove service-connection as long as they meet the requirements of the presumption (such as setting boots on the ground in Vietnam for Agent Orange or serving at Camp Lejeune for the right amount of time and on the right dates for the Lejeune diseases).

For a good article on the history of presumptive VA claims, see “A Brief History of Presumptive Disability Decisions for Veterans.” Institute of Medicine. 2008. Improving the Presumptive Disability Decision-Making Process for Veterans. Washington, DC: The National Academies Press. doi: 10.17226/11908.

Are VA presumptions a good thing?

VA presumption are a good thing for veterans covered by them.  Presumptions can remove a lot of the time-consuming evidence gathering requirements of the adjudication process and allow the Regional Office (RO) or Veterans Law Judge (VLJ) to decide complex issues with lees delay.  Presumptions may also allow VA to make more accurate decisions and, most importantly, adjudicate similar cases consistently.

One of the only notable “cons” is the enormous length of time that it has taken for VA to establish the current presumptions. But, recognizing patterns in the types of conditions that veterans have developed (and are developing) after serving in similar situations can take some time.  Although the significant evidence required for each presumption has taken many years to develop, VA does have more than a few on its Presumption List that apply to groups of veterans who’ve served in several vastly different conflicts.

Future Presumptions

The turn-around time on VA decisions is still not even close to where it needs to be but, the silver-lining for disabled veterans is that VA has significantly increased its creation of new presumptions over the last 20 years.  With burn pit/ particulate matter exposure and anti-malaria medication, there is no telling what kind of medical conditions veterans of current and recent conflicts may be facing over the next few decades.  The need for presumptive claims will undoubtedly continue well into the future.

For more information and a complete list of VA’s current Presumptive Claims.

UPDATE:

Follow this link for more information about the presumptions for certain diseases under VA’s newly added Lejeune Water Act.

 

 

If your claim was denied for a condition that you believe falls under VA’s current Presumptions List, call us to speak to one of our experienced Veterans Disability attorneys.  Consultations are free.  We handle claims nationwide, and you can reach us toll-free from anywhere in the USA at (866) 282-5260.

 

Special thanks to Kyle Short (3L, Stetson University College of Law and USMC) for his contributions to this article.

 

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