What’s a Legal Presumption?
A presumption is a rule of law which permits a court to assume a fact is true without any evidence until there is a certain weight of evidence which rebuts (disproves or outweighs) the presumption. Each presumption is based upon a particular set of apparent facts coupled with established laws, logic, or reasoning. A presumption is “rebuttable” when a person can present facts to persuade a judge that the presumption is not true in his or her particular case. The VA system includes a number of presumptions some favorable and some unfavorable to claimants, as described below.
Presumption of In-service Occurrence
Congress has specified a number of conditions the diagnosis of which within certain periods after discharge from service gives rise to a statutory presumption of incurrence in service. 38 U.S.C. § 1112(a)(1); Collamore v. Derwinski, 2 Vet. App. 541, 543 (1992). These presumptions include:
- a chronic or tropical disease developing a 10% or more degree of disability within 1 year
- active tuberculosis developing a 10% or more degree of disability within 3 years
- Hansen’s disease developing a 10% or more degree of disability within 3 years
- multiple sclerosis developing a 10% or more degree of disability within 7 years
38 U.S.C. § 1112(a). There is also a broad presumption for prisoners of war detained for not less than 30 days. 38 U.S.C. § 1112(b).
Presumption of Soundness
“[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment.” 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b). Therefore, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227.
Upon entering service, an individual will be presumed sound, “except as to defects, infirmities, or disorders noted at [entry], or where clear and unmistakable evidence demonstrates that the injury or disease existed before [service] and was not aggravated by such service.” 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). “Clear and unmistakable evidence,” as used in the governing statutes, has been interpreted to mean evidence that “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing definition of “clear and unmistakable error” in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).
The Court has held that the Board should seek medical opinions as necessary to determine the sufficiency of the evidence offered to rebut the presumption of soundness. Adams v. West, 13 Vet. App. 453 (2000), aff’d sub nom. Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001). The regulations implementing 38 U.S.C. § 1111 state that medical evidence is necessary to rebut the presumption of soundness and that the Board should not make such a determination without seeking medical opinions. See 38 C.F.R. § 3.304(b); see also Adams, 256 F.3d at 1318. Although the Secretary may not seek an opinion for the sole purpose of discrediting an appellant’s claim, the Board is free to obtain a medical opinion to clarify an issue of medical complexity. See Adams, 256 F.3d at 1318; see Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009).
In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the Federal Circuit discussed the interplay between the statutory presumptions of soundness and aggravation and its effect on VA’s burden of rebuttal. The Federal Circuit neatly summarized the burden-shifting framework as follows:
The effect of section 1111 on claims for service-connected disability thus may be summarized as follows. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress” of the preexisting condition.
370 F.3d at 1096 (quoting 38 U.S.C. section 1153). In deciding whether a condition preexisted service, the Board must consider the veteran’s medical history, accepted medical principles, evidence of the “basic character, origin and development” of the condition, and “lay and medical evidence concerning the inception, development and manifestations” of the particular condition. 38 C.F.R. §§ 3.304(b)(1), (2).
The Court reviews de novo a Board decision concerning the adequacy of the evidence offered to rebut the presumption of soundness. See Cotant v. Principi, 17 Vet. App. 116, 130 (2003). However, the Federal Circuit has stated that, in reviewing the legal sufficiency of such rebuttal evidence, this Court may employ the “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard of review because it subsumes de novo review of questions of law. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009).
The only prerequisite for the application of the presumption of soundness is that the veteran’s entry examination be clear of any noted diseases or disabilities. See Wagner, 370 F.3d at 1096. The Court has recognized that service connection may be granted for congenital diseases. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The presumption of soundness applies if a veteran’s congenital condition is not noted at entry. See id.
The presumption of soundness does not, however, apply to congenital defects, because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. 38 C.F.R. § 3.303(c); see Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects); see Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”). “VA regulations state that congenital or developmental defects ‘are not diseases or injuries within the meaning of applicable legislation.'” Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting 38 C.F.R. § 3.303(c)). On the other hand, “congenital diseases . . . may be service connected.” Id.
“[A] defect differs from a disease in that the former is ‘more or less stationary in nature’ while the latter is ‘capable of improving or deteriorating.'” Id. (quoting VA Gen. Couns. Prec. 82-90 at 2). Thus, congenital defects and conditions resulting from them are not compensable, whereas congenital diseases and conditions resulting from them are compensable. For this reason, “[t]he presumption of soundness does not . . . apply to congenital defects, because such defects ‘are not diseases or injuries’ within the meaning of 38 U.S.C. §§ 1110 and 1111,” the statutes governing basic entitlement to VA benefits and the presumption of soundness. Id. at 397.
Importantly, it is well established that merely noting a history of pre-service medical problems does not suffice to “note” a medical condition that is present at induction. See Crowe v. Brown, 7 Vet. App. 238, 245 (1995) (childhood history of asthma did not “note” the condition at induction); 38 C.F.R. § 3.304(b)(1) (“History of preservice existence of conditions recorded at the time of examinations does not constitute a notation of such conditions”).
Presumption of Regularity
There is a “presumption of regularity” under which Government officials are presumed to “have properly discharged their official duties.” Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992). This presumption is a legal fiction that allows the Court to assume, without proof or evidence, that VA did whatever action it was supposed to have done. For example, a common use of the presumption of regularity is when there is a dispute about whether VA mailed a document to a claimant. The Court will presume that VA mailed the document to the claimant on the proper date and to the proper address even if there is nothing in the C-file about the mailing unless the claimant can show that the mailing did not happen that way.
The presumption of regularity does have some limits. First, the presumption of regularity applies only when the performance of the procedure appears regular. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (noting that the presumption of regularity “allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary” (quoting Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001))). The mailing of notices discussed above is a prime example. If the C-file contains some notices, but not others, the absence of letters seeking information or providing the purportedly requested information, may show that the mailing procedure was not performed regularly, such that the presumption is not applicable. See U.S. VET. APP. R. 28.1(a)(1) (“The record of proceedings shall contain . . . [documents] relevant to the issues before the Board that are on appeal to the Court”). Although the presumption may be rebutted by clear evidence that the mailing procedures were not regular or were not followed in a particular instance, “[a]n ‘assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process.'” Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (quoting Jones v. West, 12 Vet. App. 98,102 (1998)).
Herbicide-exposed Veterans (including Agent Orange)
For certain veterans exposed in service to a herbicide agent, Congress has established a presumption of service connection for a number of diseases. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Service connection for diseases listed in 38 C.F.R. § 3.309(e) is presumed if a veteran was exposed to certain herbicides, including Agent Orange, during military service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The term “herbicides” is not limited to Agent Orange, but includes any tactical herbicide. Vietnam veterans are rebuttably presumed to have been exposed to herbicides if they served in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). So veterans deemed to have served in the Republic of Vietnam as discussed below, do not have to produce evidence of actual exposure to Agent Orange or any other herbicide.
A veteran who served in the Republic of Vietnam, its offshore waters, or other locations, “if the conditions of service involved duty or visitation in the Republic of Vietnam” between January 9, 1962, and May 7, 1975, is presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). Under VA’s interpretation of this regulation, a veteran who set foot on the landmass of the Republic of Vietnam is entitled to a presumption of exposure to Agent Orange. Haas v. Peake, 525 F.3d 1168, 1174 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). Service on a U.S. Navy vessel may also qualify, as long as the veteran set foot on land at some point. Id. at 1195, 1197.
The presumption of herbicide exposure also applies for Navy veterans who served on vessels that were originally designated as offshore, or “blue water,” vessels, but nevertheless conducted operations on the inland “brown water” rivers and delta areas of Vietnam. When a veteran alleges exposure to herbicides during service aboard a Navy or Coast Guard ship that operated on the offshore waters of Vietnam, VA is required to look for:
- evidence that shows the ship
- docked to the shores or piers of the RVN
- operated temporarily on the RVN inland waterways, or
- operated on close coastal waters for extended periods, with evidence that
- crew members went ashore, or
- smaller vessels from the ship went ashore regularly with supplies or personnel
- evidence that places the veteran onboard the ship at the time the ship docked to the shore or pier or operated in inland waterways or on close coastal waters for extended periods, and
- the veteran’s statement as to whether he or she went ashore when the ship docked or operated on close coastal waters for extended periods, if the evidence shows the ship docked to the shore or pier or that crew members were sent ashore when the ship operated on close coastal waters.
M21-1MR, part IV, subpt ii, chap 1, sec H.28; see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).
“A veteran who contracts a disease not presumed under the regulation to be caused by herbicide exposure” may still seek to establish service connection on a direct basis, pursuant to Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Ischemic heart disease is now on the list of diseases subject to presumptive service connection secondary to herbicide exposure. 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202 (Aug. 31, 2010) (section 3.309(e) is amended “by adding ‘Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina)'”), Parkinson’s disease, and all chronic B-cell leukemias.). The list of presumptive conditions now includes:
- AL amyloidosis
- Chloracne and related conditions
- Type 2 diabetes
- Hodgkin’s disease
- Ischemic heart disease
- Chronic B-cell leukemias
- Multiple myeloma
- Non-Hodgkins lymphoma
- Parkinson’s disease
- Acute and subacute peripheral neuropathy
- Porphyria cutanea tarda
- Prostate cancer
- Respiratory cancers
- Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma.
38 C.F.R. § 3.309(e).
Claimants seeking compensation for conditions that are the result of combat have a reduced evidentiary burden (sometimes called the “combat presumption”). Where a veteran “engaged in combat with the enemy in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of aggravation.” 38 U.S.C. 1154(b); see also 38 C.F.R. § 3.304(d) (“Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances . . . of such service even though there is no official record of such incurrence or aggravation”). Section 1154(b) does not eliminate the need for medical nexus evidence; it merely reduces the burden of presenting evidence of incurrence or aggravation of an injury or disease incurred in or aggravated by combat service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996).
Even when the combat presumption applies, a “veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Boyer v. West, 11 Vet. App. 477, 478-79 (1998). Section 1154(b) does not eliminate the need for evidence of a medical nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected.”); Jensen v. Brown, 19 F.3d 1413, 1416-17 (Fed. Cir. 1994); Clyburn v. West, 12 Vet. App. 296, 303 (1999).
Prisoners of War (POWs)
The law identifies certain diseases for which service connection will be rebuttably presumed for a veteran who was a prisoner of war (POW) for not less than 30 days. See 38 C.F.R. §§ 3.307, 3.309(c). Conditions subject to presumptive service connection for POWs are listed under 38 U.S.C. section 1112(b)(4). However, the presumption is rebutted “[w]here there is affirmative evidence to the contrary, or evidence to establish that an intercurrent injury or disease which is a recognized cause of [such disease], has been suffered between the date of separation from service and the onset of [the] disease.” 38 U.S.C. § 1113(a); see also 38 C.F.R. § 3.307(d).
Under 38 U.S.C. section 1112(b), if a veteran was a prisoner of war for 30 days or more, certain diseases, including beriberi, chronic dysentery, malnutrition, and other nutritional deficiencies will be presumed service connected if manifested to a degree of 10% anytime after military service even if there is no record of the disease in service. 38 U.S.C. § 1112(b)(3); see also 38 C.F.R. § 3.309(c)(2)(ii), (“Note” instructing that “For purposes of this section, the term beriberi heart disease includes ischemic heart disease in a former prisoner of war who had experienced localized edema [(swelling)] during captivity.” 59 Fed. Reg. 35464 (1994). “Ischemic heart disease” is a synonym for “arteriosclerotic heart disease.” Dorland’s Illustrated Medical Dictionary, 30th ed., 528. Applicable regulations expanded that presumption to apply to atherosclerotic heart disease as well. 38 C.F.R. § 3.309(c)(1). (“Atherosclerotis” is a common form of “arteriosclerotis.” Dorland’s Illustrated Medical Dictionary, 30th ed., 172.). Presumptive service connection allows a presumption of service connection for former POWs who suffer from atherosclerotic heart disease and hypertensive vascular disease if manifest to a degree of 10% or more any time after service. 38 C.F.R. § 3.309(c)(1).
Qualification under the presumptive provision of 38 U.S.C. section 1112(c) occurs when a veteran suffers from one of the fifteen listed cancers, and establishes participation in a “radiation risk activity” defined as:
(i) Onsite participation in a test involving the atmospheric detonation of a nuclear device.
(ii) The occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946.
(iii) Internment as prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which (as determined by the Secretary) resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans described in clause (ii) of this subparagraph.
38 U.S.C. § 1112(c)(4)(B); Hardin v. West, 11 Vet. App. 74, 77-78 (1998). A veteran’s radiation exposure that does not constitute a “radiation-risk activity” as defined by the statute is not entitled to the statutory presumption of service connection in section 1112(c). Lasovick v. Brown, 6 Vet. App. 141, 146-47 (1994).
Camp Lejeune Presumptive Conditions
Exposure to contaminants in the water supply at Camp Lejeune has resulted in the VA amending its regulations, effective March 14, 2017, to establish presumption of service connection for eight conditions.
From 1953 to 1987, water sources at Marine Corps Base Camp Lejeune were contaminated with industrial solvents that are correlated with health conditions. It has been determined by scientific authorities and health experts that the drinking water at Camp Lejeune was contaminated with perchloroethylene, trichloroethylene, vinyl chloride, benzene and other petroleum contaminants from leaking storage tanks and determined that prolonged exposure to these chemicals increase the risk of certain health conditions.
A presumptive connection is established for the following conditions:
Kidney Cancer – Liver Cancer – Non – Hodgkin Lymphoma – Adult Leukemia – Multiple Myeloma – Bladder Cancer – Parkinson’s Disease – Aplastic Anemia/Myelodysplastic Syndromes
The rule allows Servicemembers with records demonstrating no less than 30 days of service (either consecutive or cumulative) at Camp Lejeune during the specified timeframe, and who have been diagnosed with any of the eight enumerated diseases to be presumed to have a service-connected disability for purposes of entitlement to VA benefits. The rule applies to all military active duty, reserve, and National Guard personnel that meet the requirements of the regulation.
If you have a record of service at Camp Lejeune between August 1, 1953, and December 31, 1987, served there for at least 30 days during that period, and developed a condition that you believe is related to exposure to the drinking water at the base, VA recommends you file a disability compensation claim. VA is also reimbursing certain Veterans’ family members for eligible out-of-pocket medical expenses related to the 15 covered conditions. More information can be found at: https://www.clfamilymembers.fsc.va.gov.
Gulf War Veterans
38 C.F.R. §§ 3.317(c), (e)(1). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2).
A veteran who served in Southwest Asia can be service connected for “undiagnosed illness” without direct evidence of a nexus between hos or her service and the illness. For the purposes of this section, Southwest Asia includes Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, UAE, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above. VA also considers service in Afghanistan to be included.
A veteran having service in any of these areas since August 2, 1990, is considered eligible for presumptive service connection for one or more of the following “manifestations:”
- An undiagnosed illness;
- A medically unexplained chronic multisymptom condition (such as fibromyalgia, chronic fatigue syndrome, or irritable bowel syndrome; or
- One of a list of infectious diseases determined by the VA, which includes leishmaniasis
A veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War is entitled to presumptive service connection for the following conditions:
- Campylobacter jejuni
- Coxiella burnetii (Q fever)
- Mycobacterium tuberculosis
- Nontyphoid Salmenella
- Visceral leishmaniasis
- West Nile virus
Finally, for an undiagnosed illness or medically unexplained illness the condition must have manifested itself during service or to a “degree of 10 percent or more during the presumptive period, which is continuing since August 1990. For infectious diseases the presumptive period varies by disease from one year to no time limit.
For “undiagnosed” and “multisymptom” diseases that do not have their own rating tables, the issue of which condition is “similar” to the claimant’s condition can mean the difference between an award and denial. VA is required to explain why they used a particular table and must take into account the claimant’s specific symptoms. Using the wrong rating table can unfairly prevent a 10% rating.
Another common problem is private physicians trying to diagnose something to assist the veteran. A diagnoses, even if only an attempt to narrow the possible causes, does not satisfy the “undiagnosed” condition requirement, as VA as pointed out in many denials. Claimants should discuss the difference between a best guess diagnoses and a diagnoses to a medical certainty if a Gulf War claim is being considered.
Veterans of the Persian Gulf with a health concern are eligible for an examination, whether or not he or she has a current condition. Persons undergoing the examination are added to the VA Persian Gulf War Veterans Health Registry. This registry allows VA to track Persian Gulf Veterans health conditions and, hopefully, detect conditions related to service in that theater that should be added to the presumptive list.
Certain Chronic Diseases
As discussed above, statutes and regulations governing presumptive service connection for chronic diseases, provide that such conditions which manifest within the presumptive period “shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record of evidence of such disease during the period of service.” 38 U.S.C. § 1112(a) (emphasis added); see also 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The law provides for presumptive service connection for various chronic diseasesdesignated in section 3.309(a)if compensable manifestations of the chronic disease occur within one year of discharge from service. 38 C.F.R. § 3.307(a)(3). Evidence of the existence of a chronic disease during the applicable one-year presumption period allows for an award of service-connection. See 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a); 3.309(a) (classifying organic heart disease and hypertension as chronic diseases); see also Salong v. Brown, 7 Vet. App. 130, 132 (1994) (doctor’s diagnosis together with statement that appellant had been treated shortly after discharge, sufficient to show development of chronic disease within presumption period). Only the conditions listed in section 3.309(a) are considered chronic. 38 C.F.R. § 3.307(a). The Court has stated that hearing loss is not “a chronic disease entitled to any presumption of service connection” under section 3.307(a)(3) and section 3.309(a). Godfrey v. Derwinski, 2 Vet. App. 352, 354 (1990).
Children of Vietnam Veterans
VA will pay a monthly benefit to an individual suffering from spina bifida whose biological mother or father is or was a Vietnam veteran or a veteran with service in Korea as defined in the regulation. 38 C.F.R. § 3.814(a). This benefit is available to any “individual” regardless of age or marital status who was conceived after the date on which the veteran first served in Vietnam or Korea during the specified period. Id. § 3.814(c)(3). For the purposes of this benefit, spina bifida includes any form except spina bifida occulta. Id. § 3.814(c)(4).
Monthly benefits are also available for individuals whose biological mother is or was a Vietnam veteran who suffers from a medical condition other than spina bifida. 38 C.F.R. § 3.815(a). The regulations list 18 specific birth defects eligible for benefits and explicitly state that eligible conditions are “not limited to” those on the list. 38 C.F.R. § 3.815(d)(1). The regulations also contain several lists of birth defects that are not eligible for benefits. Id. § 3.815(d)(2)-(8).
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