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What Veterans Should Know About Legal Presumtions of VA Disability Claims

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).

Combat

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).

Radiation-exposed Veterans

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:

  • Brucellosis
  • Campylobacter jejuni
  • Coxiella burnetii (Q fever)
  • Malaria
  • Mycobacterium tuberculosis
  • Nontyphoid Salmenella
  • Shigella
  • 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 diseases—designated 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).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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How VA Compensates Disabled Veterans With Special Monthly Compensation (SMC)

Special Monthly Compensation (SMC)

Special Monthly Compensation (SMC) is available when, ‘as the result of service-connected disability,’ a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.”  Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114(k)–(s)).  The Board’s determination as to whether a veteran is entitled to SMC is a finding of fact that the Court reviews under the “clearly erroneous” standard of review.  Id. (citing Prejean v. West, 13 Vet. App. 444, 447 (2000); Turco v. Brown, 9 Vet. App. 222, 224 (1996)).  Section 1114( l ) provides, in pertinent part:  if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance, the monthly compensation shall be $3,075.  38 U.S.C. § 1114(l).

While a scheduler rating depends on the severity of a condition, SMC for loss of use does not depend on the degree of loss, except that the loss of use must be permanent. The more seriously disabled veteran may be eligible for SMC payments for combinations of anatomical loss or loss of use. In addition, severely disabled veterans may be awarded further compensation for regular aid and attendance needs and for permanent housebound conditions. As SMC has many possible combinations and involves a significant amount of additional compensation, it is recommends that severely injured veterans get help in filing their SMC claims from someone experienced in such cases.

In addition to compensation based on the degree of disability, Congress has also authorized additional compensation for certain disabilities. This “special monthly compensation” (“SMC”) is intended to compensate claimants for service-connected conditions that involve loss of use or anatomical loss (amputation) of body parts, such as hands or feet, or loss of hearing or sight. SMC can result in significantly more monthly compensation for severely injured veterans.

VA has promulgated regulations implementing section 1114 relevant to the determination of whether a veteran “is so helpless as to be in need of regular aid and attendance are contained in § 3.352(a).”  38 C.F.R. § 3.350(b)(3); see 38 C.F.R. § 3.351(c)(3) (providing that a claimant is entitled to SMC based on the need for aid and attendance by establishing “a factual need for aid and attendance under the criteria set forth in [38 C.F.R. § 3.352(a)].”).

The Court has held that the order in which disabilities are service connected is not relevant to VA’s determination of a claimant’s eligibility for special monthly compensation under 38 U.S.C. section 1114(s).  Whenever a veteran has a total disability rating, schedular or extraschedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA’s duty to maximize benefits requires VA to assess all of the claimant’s disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s).  If, after such an assessment, VA determines that the claimant is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities.  Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010), as amended (Apr. 21, 2011).

Levels of SMC Ratings 

Each level of SMC ratings are successive and are preceded by an entitlement to certain conditions included under SMC(K).  The basic elements of Special Monthly Compensation ratings include:

  • anatomical (or physical) loss or the loss of use (Loss of use from neurological, muscular, vascular, contractures, etc.)  of one or more of the following:
    • limbs,
    • hands,
    • feet
    • reproductive organs;
  • aphonia (loss of voice);
  • deafness;
  • blindness;
  • loss of bowel and bladder control;
  • being permanently housebound;
  • and a need for regular aid and attendance with activities of daily living or a higher level of care–all of which must be a result of the veteran’s service-connected disabilities.

A rating of SMC (K) would include: 

  • The anatomical loss or loss of use (Loss of use from neurological, muscular, vascular, contractures, etc.) of:
    • one hand.
    • one foot.
    • both buttocks (where the applicable bilateral muscle group prevents the individual from maintaining unaided upright posture, rising and stooping actions).
    • one or more creative organs used for reproduction (absence of testicles, ovaries or other creative organ, ¼ loss of tissue of a single breast or both breasts in combination) due to trauma while in service, or as a residual of a service-connected disability(ies). NOTE: these do not serve as eligible prerequisite conditions for the higher levels of SMC.
    • One eye (loss of use to include specific levels of blindness).
  • Complete organic aphonia (constant loss of voice due to disease)
  • Deafness of both ears to include absence of air and bone conduction.

A rating of SMC(L) would include:

  • The anatomical loss or loss of use of:
    • Both feet,
    • One hand and one foot
  • Blindness in both eyes with visual acuity of 5/200 or less.
  • Permanently bedridden.
  • Regular need for aid and attendance to assist with activities of daily living such as dressing oneself, tending to personal hygiene, care and adjustment of assistive appliances or prosthetics, feeding oneself, and the like. (specific criteria is established in 38 CFR § 3.352(a)) (NOTE: If such services are not being provided at the expense of the U.S. Government due to hospitalization).

Ratings above the SMC(L) level to include SMC(M), SMC(N), SMC(O), SMC(P), SMC(R) and SMC(S) are specialized multifaceted levels which are based on various specific combinations of anatomical loss or loss of use of designated extremities and/or senses, together with seriously disabling conditions and particular degrees of aid and attendance requirements, housebound or bedridden statuses deemed medically necessary, and explicit service-connection ratings. These levels also outline various requirements to include full and half step upgraded SMC level ratings. The conditions providing the basis of these levels are as follows.

A rating of SMC(M) would include:

  • The anatomical loss or loss of use of (neurological loss):
    • Both hands,
    • Both legs at the region of the knee
    • One arm at the region of the elbow with one leg at the region of the knee
  • Blindness in both eyes having only light perception.
  • Blindness in both eyes resulting in the need for regular aid and attendance.

A rating of SMC(N) would include:

  • The anatomical loss or loss of use of both arms at the region of the elbow.
  • The anatomical loss of both legs so near the hip that it prevents the use of a prosthetic appliance.
  • The anatomical loss of one arm so near the shoulder that it prevents the use of a prosthetic appliance along with the anatomical loss of one leg so near the hip that it prevents the use of a prosthetic appliance.
  • The anatomical loss of both eyes or blindness in both eyes to include loss of light perception.

A rating of SMC(O) would include:

  • The anatomical loss of both arms so near the shoulder that it prevents the use of a prosthetic appliance.
  • Bilateral deafness rated at least 60 percent disabling along with service-connected blindness with visual acuity of 20/200 or less of both eyes.
  • Complete deafness in one ear or bilateral deafness rated at least 40 percent disabling along with service-connected blindness in both eyes to include loss of light perception.
  • Paraplegia – paralysis of both lower extremities along with bowel and bladder incontinence.
  • Helplessness due to a combination of anatomical loss or loss of use or two extremities with deafness and blindness or a combination of multiple injuries causing severe and total disability.

A rating of SMC(P) would include:

  • The anatomical loss or loss of use of a leg at or below the knee along with the anatomical loss or loss of use of the other leg at a level above the knee.
  • The anatomical loss or loss of use of a leg below the knee along with the anatomical loss or loss of use of an arm above the elbow.
  • The anatomical loss or loss of use of one leg above the knee and the anatomical loss or loss of use of a hand.
  • Blindness in both eyes meeting the requirements outlined in SMC (L), (M) or (N) levels.

A rating of SMC(R):

Ratings under SMC(R) are assigned for seriously disabled veterans in need of advanced levels of aid and attendance.

SMC(R) ratings require a minimal combination of entitlement to both SMC(O) and SMC(L). Additionally, Veterans in receipt of SMC rates based on Aid and Attendance are strongly advised to contact their service representative and/or VA Regional Office should they become hospitalized at the expense of the U.S. Government (i.e. a VA medical facility) as failure to do so could create an overpayment of monetary benefits.

A rating of SMC(S):

Ratings under SMC(S) are also available if the veteran is permanently housebound. The VA defines “permanently housebound” as being substantially (as opposed to completely) confined to a dwelling as the result of service-connected disability and it is reasonably certain that that such disability will continue throughout the veteran’s lifetime. These kinds of determinations should be made by a physician, whose written opinions or reports in this respect would serve as the best evidence to submit in support of a claim for “s” SMC benefits.

A rating of SMC(T):  Traumatic Brain Injury

Ratings under SMC(T) are available to veterans who need regular aid A&A for residuals of Traumatic Brain Injury (TBI), but is not eligible for a higher level of A&A under (R)(2), and would require hospitalization, nursing home care, or other residential institutional care in absence of regular in-home aid and attendance.

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What Disabled Veterans Must Know About Schedular Rating 100%-Temporay Disability Rating

Temporary 100% Disability Rating

There are three types of temporary disabiltiy ratings:

  • Prestabilization Ratings
  • Total Ratings for Service-Connected Disability Requiring Hospitalization
  • Convalescence Rating (TDCC)

Prestabilization Ratings:

  • Prestabilization Rating of 100% is for Veterans who have experienced, during active, an unstable condition resulting in a severe disability that renders gainful employment either not feasible or adviseable.  Such conditions would include: residuals resulting from a head injury or gunshot wound residuals.
  • The VA is not allowed to assign a 100% prestabilization rating if the Veteran’s case warrants a 100% regular rating.
  • Assigned immediately after discharge from the military and continues for 12 months after discharge.
  • During the 12 months, the Prestabilized rating can change to a “another rating authorizing a greater benefit” if the change would be a better benefit for the Veteran.
  • There must be a VA exam of the Veteran between the 6 month and the 12 month. following discharge.  If the exam calls for a reduction in benefits, the VA can not make the reduction until the end of 12 month period.

Total Ratings for Service Connected Disabilities Requiring Hospitalization

  • The condition must be service-connected.
  • The period of hospitalization or observation must exceed 21 days.
  • The Increased rating starts on the first day of continuous hospitalization and ends on the last day of the month of hospital discharge.
  • If hospialization occurs for a non-service connected condition and during the hospitalization a service connected disability is treated for over 21 days, then the 100% can be granted.

Convalescence Rating (TDCC) :

  • Three circumstances for TDCC:
    • The Veteran has surgery that requires 1 month of convalescence, or
    • The Veteran’s surgery has resulted in severe postoperative residuals,or
    • The Veteran has a major joint immobilzed by a cast.
  • Convalescence for Mental Disorder:
    • Veteran must have a service connected mental disorder
    • Hospitalized for at least 6months for the service connected mental disorder
    • Convalescent rating will last for 6 months after hospital discharge.  This rating is protected under 38 C.F.R. 3.105(e)
  • Benefit is for up to a year.
  • The conditions must be service connected and the medical documentatin indicates that the Veteran needs time to convalesce after hospital discharge or outpatient release.
  • Home Confinement is not necessary. Ruling from  Felden v. West, defines convalescence as ” the act of regaining or returning to a normal or healthy state after a surgical operation, or injury”  Medical documentation is necessary.  If Veteran’s doctor prescribes: “Do not return to work for 12 weeks”, then the CAVC has ruled that the note establishes 12 weeks of convalescence.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Disabled Veterans Must Know About Schedular Ratings for Compensation

As discussed earlier, the VA compensation system is based on a “schedule” which assigns a numerical value to medical conditions from 0% to 100% in 10% increments. These “schedular ratings” are intended to represent the average percentage of impact on a veteran’s employability from service-connected conditions. The smaller the impact from the condition or conditions, the lower the rating and the smaller monthly benefit paid to the veteran. A 100% rating, in theory, is granted when the service-connected condition or conditions prevent a veteran from holding any gainful employment.

A 100% rating, however, does not mean that a claimant cannot work or has to quit his or her job. It only means that Congress has established that the rated condition would affect the average individual’s ability to hold gainful employment. The same is true for other rating levels. The average person is considered, the specific claimant may actually be affected more or less. In any event, the claimant is not penalized for working with a schedular rating. This is not true for a total disability rating based on individual unemployability discussed in the next section.

Once a veteran has been awarded service connection for a disease or disorder, VA will assign the veteran an appropriate disability rating after referring to the schedule of ratings for reductions in earning capacity for the specific injury or disability.  See 38 U.S.C. § 1155.  The rating is based, as far as practicable, upon the average impairments of earning capacity, in civil occupations, resulting from such injuries.  Id.  The Secretary has promulgated regulations to implement assignment of an appropriate disability rating.  See generally 38 C.F.R. Part. 4.

After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is  suffering.  See, e.g., 38 C.F.R. § 4.126.  Where there is a question as to which of two evaluations to apply, the Board will assign the higher rating if a veteran’s disability more closely resembles the criteria for the higher rating; otherwise the lower rating will be assigned.  See 38 C.F.R. § 4.7; see also, e.g., Mauerhan v. Principi, 16 Vet. App. 436, 440-41 (2002) (discussing PTSD rating issues).

The amount of VA compensation due to a claimant is determined by evaluation of the disability or disabilities resulting from diseases and injuries encountered as a result of or incident to military service.  38 C.F.R. § 4.1.  “VA’s rating schedule is constructed for the purpose of establishing levels of disability for compensation purposes based upon ‘average impairment in earning capacity’ resulting from particular injuries or diseases.”  Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011); Hensley v. Brown, 5 Vet. App. 155, 162 (1993) (quoting 38 U.S.C. § 1155); 38 C.F.R. § 4.1.  VA regulations also caution that “it is not expected . . . that all cases will show all the findings specified in the [applicable disability code].”  38 C.F.R. § 4.21.

The Court has held that the symptoms listed in the disability codes are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.”  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2006).  The Court concluded that “any suggestion that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation.”  Id. The Board is required to “consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment,” not just those listed in the regulation.  Id. at 443.

Further, “functional loss due to pain” should be rated and evaluated separately because the Diagnostic Codes do not “contemplate the functional loss resulting from pain on undertaking motion.”  DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995); see also Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (describing the holding in DeLuca as “requir[ing] that the disabling effect of painful motion be considered when rating joint disabilities”).  However, “pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss.”  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  “Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'”  Id. (quoting 38 C.F.R. § 4.40).

The Court “may not review the schedule of ratings for disabilities” adopted by the Secretary.  38 U.S.C. § 7252(b).  “The [rating] schedule consists of both the ratings and the injuries for which the ratings are provided[, and] [t]he Secretary’s discretion over the schedule, including procedures followed and content selected, is insulated from judicial review with one recognized exception limited to constitutional challenges.”  Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004).  The Federal Circuit further noted that “review of the content of the rating schedule is indistinguishable from review of ‘what should be considered a disability.'”  Id.; see also Byrd v. Nicholson, 19 Vet. App. 388, 392-94 (2005) (holding that the Court could not hear the appellant’s challenge that periodontal disease should constitute a disease for VA compensation purposes because it would require the Court to review the content of the rating schedule).

In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that VA should not limit a claim to only the disability identified by the claimant. The Court found in Clemons that although the appellant’s original claim “identifie[d] PTSD without more,” the “breadth of the claim” was not limited to PTSD but also included “anxiety disorder [not otherwise specified] and schizoid disorder, which ar[o]se from the same symptoms for which he was seeking benefits.”  Clemons, 23 Vet. App. at 5.  The Court held that “as a self-represented layperson at the time his claim was filed, the appellant neither had the legal or medical knowledge to narrow the universe of his claim or his current condition to PTSD.”  Id. at 6.  Rather than “limit[ing] its consideration of the claim based on the appellant’s belief that he suffered from PTSD” the Court held that the Board should also have inquired into the appellant’s “currently diagnosed mental conditions that are different from his lay hypothesis in his claim form.”  Id. at 7.  In determining the scope of the appellant’s claim, the Board has to analyze “the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.”  Id.

Where a condition is rated by analogy, the Board has a heightened duty to provide a thorough statement of reasons or bases.  Suttman v. Brown, 5 Vet. App. 127, 134 (1993).

Schedular Rating 100%-Total and Permanent

If any one of the Veteran’s disabilities qualifies for a 100 percent rating under the rating schedule, the total disability requirement for pension is satisfied.   Under VA disability compensation only service-connected disabilities are considered for the total and permanent rating.

Compensation Rates

Compensation rates are established by Congress. The VA compensation system is based on the rated percentage of disability (“scheduler rating”) and not on the rank of the veteran at time of discharge. At present, a senior officer and a junior enlisted who are each rated as 30% disabled each will receive the same amount of compensation per month from VA.

At one time the amount of VA benefits payable for the same condition was different depending on whether the veteran served in a time of war or not. Under the current payment schedule, compensation benefits for both classes of veterans are the same. So veterans with the same percent rated disability today receive the same monetary compensation regardless of when they served. [link to 38 USC 1110 v. 1131]

38 U.S.C. section 1114 sets forth the compensation rates for all awards of disability compensation, whether based on a new claim or a claim retroactively granted on the basis of CUE in a prior VA decision.  When the rates are set by Congress, they have a specific effective date and remain in effect until they are changed.  Nothing in the statute provides for payment of a higher rate when the payments are retroactive, and the Court cannot find any intent for payment at the higher rate without a clear, explicit waiver of the Government’s sovereign immunity from the payment of interest.  38 U.S.C § 1114; see also Smith v. Principi, 281 F.3d 1384, 1387 (Fed. Cir. 2002) (“waiver of the no-interest rule must be express”).  Further, the suggestion that section 1114 requires that an award of retroactive benefits must be calculated at the rate in effect at the time of payment was expressly rejected by the Federal Circuit in Sandstrom v. Principi, 358 F.3d 1376, 1380 (Fed. Cir. 2004).

Thus, a claimant is not entitled to receive an amount not authorized by Congress during a particular time frame.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Disabled Veterans Must Know About Service Connected Medical Conditions

Service Connected Medical Conditions

VA is authorized to compensate eligible individuals only for “service connected” conditions. A service-connected condition is a condition caused by, aggravated by, or the result of, an event during military service or a condition considered service-connected by law (such as Section 1151 claims). As such, “service connection” is a critical concept in VA benefits law. In practice, the determination of service connection can be difficult for VA and frustrating for the veteran. As a result, service connection is one of the most contested issues in the VA claims process.

Establishing service connection generally requires:

  1.  medical evidence of a current disability or condition;
  2.  evidence of an in-service occurrence or aggravation of a disease or injury; and
  3.  medical evidence of either a nexus between the claimed in-service disease or injury and the current disease or injury.

As a practical matter, establishing the existence of a current medical condition or disability is usually straightforward because the condition is often the motivation for filing a claim. A past condition that has been corrected or resolved or the anticipation of a future condition are not current conditions and do not provide a basis for service connection.

Next, the condition must have occurred in or resulted from the veteran’s military service. In most cases, the evidence of the event (wounded by enemy action, training injury) can be found in service records, service medical records, or unit records. Under certain circumstances, a claimant may establish an in-service event by other evidence, such as “buddy statements” or testimony by other service members witnessing the event or private medical records. Whatever the case, VA will also review service medical records to determine if the claimed condition existed when the veteran entered service. If a condition is determined to be “pre-existing” and not aggravated in service, the claim will be denied.

There are also certain “presumptions” regarding specific conditions and in-service events (atomic test participation, agent orange exposure) that may apply. A presumption is when the law assumes an event occurs except when there is evidence that the event actually did not happen. So, for veterans who were exposed to radiation during atomic bomb tests, that radiation is assumed to cause certain diseases. If the veteran now suffers from one of those diseases, he or she does not have to prove the radiation actually caused the disease: VA must accept that the disease as service-connected.

Finally, VA must find a “nexus” (a “connection”) between the current condition and the in-service disease, injury, or event. In practice, most service-connection issues boil down to whether a claimant can establish a nexus. For many medical conditions, such as cancer, it is extremely difficult to connect the current disease to specific events, even when occurrence of the event is not disputed. In such cases, it is especially important for the claimant to obtain strong medical evidence supporting nexus. This is not easy. Providing adequate nexus evidence becomes even more difficult as the time between service and the claim grows.

Although a condition must result from actions “in the line of duty,” service-connected conditions are not limited to “battlefield” wounds or similar injuries. The “in the line of duty” requirement has been broadly interpreted to mean almost anything that occurs during service, including such things as car accidents, sports injuries, and illnesses unrelated to specific military activity. The condition generally need only have occurred or begun during service, including authorized leave periods.

Secondary Service Connection

“Secondary” service connection is awarded when a disability “is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a); Roper v. Nicholson, 20 Vet. App. 173, 181 (2006); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  “Proximate cause” is defined as “[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.”  BLACK’S LAW DICTIONARY 1225 (6th ed. 1990); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), rev’d on other grounds by Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003); VA Gen. Coun. Prec. 6-2003, at *3-4, n.4 (Oct. 28, 2003).

Medical Conditions Aggravated by “Service”

VA will compensate claimants for medical conditions that existed at the time of entry into service that were made worse or “aggravated” by service.  The essence of a claim for benefits based on a theory of aggravation is that a claimant’s service caused a worsening of a preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (“[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service connected aggravation of that disorder.”).

An appellant may obtain service connection for aggravation of a preexisting condition under 38 U.S.C. section 1153.  In such a case, “the burden falls on the veteran to establish aggravation.”  Wagner, 370 F.3d at 1096.  If the veteran succeeds in showing aggravation, “the burden shifts to the government to show . . . that the increase in disability is due to the natural progress of the disease.”  Id.  Where there has been an increase in disability during service, the proof that the increase was due to the natural progress of the disease must also be by clear and unmistakable evidence.  38 C.F.R. § 3.306(b).  Therefore, the first task for the Board in evaluating a presumption of aggravation claim is to find whether the appellant has shown an increase in disability during service.  If the Board finds aggravation, the second task is for the Board to consider whether the increased disability is due to the natural progression of the disease.  See Wagner, 370 F.3d at 1096.

Also see the discussion of the “presumption of soundness” as it applies to determining if a medical condition pre-existed service.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Veterans Must Know About Compensation or Service-Connection

Compensation for injury or other adverse medical condition is the single most common type of VA benefits claim. The VA compensation process is designed to “rate” an eligible veteran based on the “average impairment in earning capacity” resulting from events occurring during or as a result of military service. If a condition is determined to be “service-connected” and an entitlement awarded, VA provides the claimant monthly payments and access to other VA benefits based on the “effective date” of the award, which is usually the date the claim was submitted to VA. Do not be concerned if you do not know what all these terms mean right now, one of the important purposes of this Knowledge Book is to explain VA terms in plain language. The terms in this paragraph, and many others, are explained in the sections that follow.

Every condition for which compensation is sought must be connected to the veteran’s service.  Establishing “service connection” generally requires medical evidence or, in certain circumstances, lay evidence of:

(1)   a current disability;

(2)   in-service incurrence or aggravation of a disease or injury; and

(3)   a nexus between the claimed in-service disease or injury and the present disability.

Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.

Evidence of a current condition is fundamental to an award of service connection.  Cotant v. Principi, 17 Vet. App. 116, 132-33 (2003); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (reasoning that, absent “proof of a present disability[,] there can be no valid claim”).  Without evidence establishing a current disability, disability compensation may not be granted.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (stating that service connection requires, among other things, a current disability at the time of filing or during the pendency of the claim).  Absent evidence in the record that a claimant currently suffers a claimed condition a determination that service connection is not warranted is not clearly erroneous.  Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990).

Service connection may also be established by showing continuity of symptomatology, which requires a claimant to demonstrate:

(1)   that a condition was “noted” during service;

(2)   evidence of post-service continuity of the same symptomatology; and

 (3)  medical evidence or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.

38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)); Davidson, 581 F.3d at 1316; see also Jandreau, 492 F.3d at 1377 (whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board).  “[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology.”  Savage, 10 Vet. App. at 496.  Testimony of continuity of symptomatology can potentially indicate that a disability may be associated with service, but only “if ultimately deemed credible.”  McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006).

Pain alone without a diagnosed condition, however, is not a disability or compensable condition.  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (“pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.”).  Accordingly, a decision to deny a claim for failure to establish a current condition based on pain alone will be upheld.

A condition does not have to be symptomatic at the time of the decision for service connection to be granted.  The requirement for a current disability “is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim . . . even though the disability resolves prior to the Secretary’s adjudication of the claim.”  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Furthermore, although congenital defects themselves cannot be service connected by law, service connection may be warranted for superimposed disabilities that result from military service.  VA Gen. Coun. Prec. 92-90 (July 18, 1990).

A finding of service connection is a factual determination by the Board that the Court reviews under the “clearly erroneous” standard.  38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet. App. 169, 171 (1998).  “A factual finding ‘is “clearly erroneous” when . . . the reviewing court . . . is left with the definite and firm conviction that a mistake has been committed.'”  Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).  The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently in the first instance.  Id.

“Medical” and “lay” evidence are discussed later.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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How Willful Misconduct Affects VA Disability Claims

Willful Misconduct

A veteran cannot receive VA compensation for a disability that is the result of willful misconduct.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.1(m), (n), 3.301(a)-(b), (c)(2), (d).  Willful misconduct is broadly defined as “an act involving conscious wrongdoing or known prohibited action [;] … [i]t involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.”  38 C.F.R. § 3.1(n); see Yeoman v. West, 140 F.3d 1443, 1448 (Fed. Cir. 1998) (holding that VA’s willful misconduct regulations were not unconstitutionally void for vagueness); Daniels v. Brown, 9 Vet. App. 348, 351 (1996) (willful misconduct negates statutory presumption that disease or injury was incurred in line of duty (citing 38 U.S.C. § 105(a))); VA Gen. Coun. Prec. 2-93 (January 13, 1993) (discussing origins and subsequent history of willful misconduct prohibition in context of tobacco use) [hereinafter 1993 VAGC Opinion ].

However, a “[m]ere technical violation of police regulations or ordinances will not per se constitute willful misconduct,” and the latter “will not be determinative unless it is the proximate cause of injury, disease or death.”  38 C.F.R. § 3.1(n)(2)-(3).  Moreover, alcohol abuse, a specific type of willful misconduct, is defined as “the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user.”  38 C.F.R. § 3.301(d); see Allen v. Principi, 237 F.3d 1368, 1376-78 (Fed. Cir. 2001); see also 38 C.F.R. § 3.301(c)(2) (“The simple drinking of alcoholic beverage is not of itself willful misconduct [; however] … [i]f, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct.”). The Board may consider state law in interpreting VA’s definition of willful misconduct. Yeoman, 140 F.3d at 1446 (holding that “[t]he Board’s consideration of … state law was a proper part of its interpretation of willful misconduct under the standards mandated by the very regulations defining that term and its relation to drunkenness.”).  The Board’s determination that a disability is the result of willful misconduct is a finding of fact.  Thomas v. Nicholson, 423 F.3d 1279, 1283 (Fed. Cir. 2005).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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How Character of Discharge Affects VA Disability Claims

VA benefits are restricted to veterans discharged or released “under conditions other than dishonorable.” The military services each have several categories of discharge, one of which is “dishonorable.” These categories are not what VA bases a character of service determination: VA has its own unique system.

VA generally accepts “honorable” discharges and discharges “under honorable conditions” as qualifying discharges without further investigation. VA has also determined that a “dishonorable” discharge is not an “other than dishonorable” discharge and so will disqualify a claimant from any VA benefits unless a narrow insanity exception applies. If an individual received a discharge under “other than honorable conditions” or a “bad conduct” discharge, VA will make a special “character of service determination” before further processing a claim. In making this determination VA is supposed to consider the veteran’s entire period of service not just the specific type of discharge. If VA determines that the individual was separated from service under a disqualifying condition, the veteran will be ineligible for compensation benefits, although he or she may still qualify for certain healthcare benefits. A character of service determination can be appealed if unfavorable.

Veterans with multiple periods of active duty may have been discharged with a different character of service for different periods of service. In such a case, the discharge for the period of service to which a medical condition is connected controls eligibility. For example, a veteran with an honorable discharge followed by a dishonorable discharge for two separate periods of service would be eligible for benefits for a condition connected to the first period of service, but not the second.

A veteran with a discharge that does not qualify him or her for compensation benefits may try to “upgrade” the character of the discharge. VA does not change the character of discharge assigned by the service branch. Each service branch has a “Discharge Review Board” (“DRB”) and a “Board for Correction of Military Records” (“BCMR”). Both of these Boards have their own procedures for reviewing cases of veterans looking to change an unfavorable character of discharge and it is beyond the scope of this KNOWLEDGE BOOK to describe the processes. Veterans who believe that their character of discharge was improper or unfair are encouraged to contact an advocate or attorney experienced in the upgrade process.

Regardless of the character of discharge, individuals are not eligible for VA benefits for conditions that result from “willful misconduct” or substance abuse. Willful misconduct includes intentional acts such as self-inflicted injuries to avoid duty or deployment. Health conditions arising from the abuse of illegal drugs or alcohol abuse are also excluded. As questions of willful misconduct are very fact specific, claimants potentially affected by this requirement are encouraged to discuss the matter with an experienced advocate. There is one very important exception to the substance abuse exclusion. An individual is eligible for VA benefits for conditions related to drug or alcohol abuse arising from another allowable service-connected condition. For example, an individual suffering from post-traumatic stress disorder (“PTSD”) as a result of an incident during service can receive benefits for the adverse health effects of alcoholism if the alcoholism is determined to be a result of the PTSD. Alcoholism unrelated to another service-connected condition would not be eligible for compensation.

VA “compensation . . . is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable.”  38 C.F.R. § 3.12(a).  “A discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions[:] . . . An offense involving moral turpitude.  This includes, generally, conviction of a felony.”  38 C.F.R. § 3.12(d)(3).  38 U.S.C. section 101(2) defines a veteran as a person who “was discharged … under conditions other than dishonorable.”

While no statute or regulation generally states that dishonorable conditions are equivalent to conditions other than honorable, section 3.12(d)(4) states as follows:

(d)   A discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions.

. . .

(4)   Willful and persistent misconduct.  This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct.  A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.

The law, however, contains an exception that “if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person’s court-martial, discharge, or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary.”  38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b).

VA regulations define an insane person as one who, while not mentally defective or constitutionally psychopathic, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.”  38 C.F.R. § 3.354(a); see Zang v. Brown, 8 Vet. App. 246, 253 (1995) (stating that phrase “due to disease” applies to all three circumstances provided in section 3.354(a)); see also VA Gen. Coun. Prec. 20-97 (May 22, 1997) (clarifying VA’s definition of insanity).  Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis.  Beck v. West, 13 Vet. App. 535, 539 (2000); Zang, 8 Vet. App. at 254-55; 38 C.F.R. § 3.354(a).

When determining whether a veteran was insane at the time of an offense, the rating agency “will base its decision on all the evidence procurable relating to the period involved.”  38 C.F.R. § 3.354(b).  The Court reviews the Board’s factual decision in this regard under the “clearly erroneous” standard of review.  38 U.S.C. § 7261(a)(4); Beck, 13 Vet. App. at 539; Gilbert v. Derwinski, 1 Vet. App. 49, 52-53 (1990).

Acceptance of an undesirable discharge to escape trial by general court-martial is considered a discharge or release “under dishonorable conditions.”  38 C.F.R. § 3.12(d)(1).  Such a discharge generally “is a bar to the payment of benefits.”  38 C.F.R. § 3.12(b).  Further, an honorable or general discharge awarded under the Department of Defense’s special discharge review program (“SDRP”) generally “does not remove any bar to benefits.”  38 C.F.R. § 3.12(h).  When a veteran has multiple periods of service, it is the character of service for the period in which the medical condition arises that determines eligibility.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Disabled Veterans Must Know About Veteran Status and Eligibility for VA Benefits

Establishing Eligibility

The law currently sets three threshold conditions to be eligible for VA benefits:

  1.  veteran status,
  2.  character of discharge, and
  3.  a medical condition that is not the result of willful misconduct or substance abuse.

Veteran Status

Are you a Veteran?

Many eligible individuals are unaware that they are “veterans” for VA benefits purposes. Contrary to some beliefs, it is not necessary that a service member have been in combat or have retired from the military to be eligible for VA benefits. Although there are usually some minimal period of service requirements, the vast majority of individuals with active duty service (including certain training and certain “call ups” of Reserve or Guard) are “veterans” for VA purposes.

Veteran status is defined as:

  1. a claimant must be “a person who served in the active military services”, and
  2. who was discharged or released “under conditions other than dishonorable.

Although the term “veteran” appears straightforward, there are specific legal requirements for someone to be considered a “veteran” for purposes of eligibility for VA benefits.  “In order to qualify for VA benefits, a claimant . . . [must be] a ‘veteran.'”  Cropper v. Brown, 6 Vet. App. 450, 452 (1994); D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000).  A veteran is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.”  38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).  Service in the active military, naval, or air service includes service in the United States Armed Forces or, for certain purposes, service in the organized military forces or organized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the United States Armed Forces.  38 U.S.C. §§ 101(10), 101(21)(C), 101(24), 107; 38 C.F.R. § 3.40(b).

To establish entitlement to benefits, VA may accept documents submitted by a claimant as evidence of qualifying service, without verification from the appropriate service department, if the documents were issued by a U.S. service department, contain the needed information, and in VA’s opinion are genuine and contain accurate information. 38 C.F.R. § 3.203(a); Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  If, however, the evidence of service submitted does not meet the requirements of section 3.203(a), VA must request verification of service from the appropriate U.S. service department.  38 C.F.R. § 3.203(c); Soria, 118 F.3d at 749; Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting that section 3.203(c) requires verification from the service department whenever a claimant lacks the kind of official evidence specified in section 3.203(a)).

Under section 3.203, service department findings are binding on VA for purposes of establishing qualifying service.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) (“[t]herefore, VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces.”).  “Thus, if the United States service department refuses to verify the applicant’s claimed service, the applicant’s only recourse lies within the relevant service department, not the VA.” Soria, 118 F.3d at 749.  The Board’s determination of “veteran status” is a question of fact that the Court reviews under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4).  Struck v. Brown, 9 Vet. App. 145, 152-53 (1996).

Pursuant to the American Recovery and Reinvestment Act of 2009, Congress established the Filipino Veterans Equity Compensation Fund (“FVECF”) and authorized VA to make one-time payments from the fund to eligible persons who submitted a claim within the one-year period beginning on the date of enactment.  Pub. L. No. 111- 5, § 1002, 123 Stat. 115.  The act defined the term “eligible person” as any person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, including the recognized guerilla forces, or in the Philippine Scouts.  Id.  But, “Philippine veterans are not eligible for veterans’ benefits unless a United States service department documents or certifies their service.”  Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); 38 C.F.R. § 3.9.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Disabled Veterans Must Know About Finality and Revision of Decisions of VA Disability Claims

Finality and Revision of Decisions

Where a claimant does not file a Notice of Disagreement, the benefit decision becomes final.  38 U.S.C. § 7105(c).  When a prior adjudication is final, a claimant may only seek a revision of that decision on the basis of clear and unmistakable error.  38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a) (2009); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002).  In order to properly seek revision of a prior final decision, the appellant must allege either (1) that the correct facts in the record were not before the adjudicator or (2) that the statutory or regulatory provisions in existence at the time were incorrectly applied.  See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see 38 U.S.C. § 7111 (authorizing revision of Board decisions); Cook, 318 F.3d at 1342 n.2 (noting that, before the enactment of section 7111, final Board decisions were not subject to motions for revision based on CUE).

The only exceptions to the rule of finality are the statutory provisions concerning CUE and the section 3.156(c) regulation described above.  See 38 U.S.C. § 5109A (revision of decisions by the Secretary, including rating decisions, on the grounds of CUE); 38 U.S.C. § 7111 (revision of Board decisions on the grounds of CUE).  Both provisions state that a revision of a prior decision on the basis of CUE has the same effect as if the corrected decision had been made on the date of the prior decision.  The Court has defined CUE as follows:

Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied …. [CUE is] the sort of error which, had it not been made, would have manifestly changed the outcome … [an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.

Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting “manifestly changed the outcome” language in Russell).  In order to constitute CUE, the alleged error must be “based upon the evidence of record at the time of the original decision.”  Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc).  A claimant alleging CUE must do so “with some degree of specificity.”  Pierce v. Principi, 240 F.3d 1348, 1355 (Fed. Cir. 2001).

A challenge to a regional office decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of that decision, beginning with the timely filing of a Notice of Disagreement.  See 38 U.S.C. § 7105(a).  Where a claimant does not file a Notice of Disagreement, the regional office’s decision becomes final.  38 U.S.C. § 7105(c).  Once a regional office decision is final, a claimant may attempt to overcome the finality of that decision in one of two ways:  by a request for revision of the decision based on clear and unmistakable error or by a request to reopen based upon new and material evidence.  Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see 38 U.S.C. § 5109A(a) (“A decision by the Secretary … is subject to revision on the grounds of clear and unmistakable error.  If evidence establishes the error, the prior decision shall be reversed or revised.”); 38 U.S.C. § 5108 (“If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of that claim.”).

Only a request for revision based on CUE or a newly discovered service record can result in the assignment of an earlier effective date for the award of disability benefits because the effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received.  38 U.S.C. § 5110(a); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (“[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”).  Further, the Court has made it clear that VA cannot adjudicate, a freestanding claim for an earlier effective date because to do so would be to compromise the rule of finality.  Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency