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Friday, March 11, 2011

Legal Issues Related to Proving “Service Connection” for VA Disability Compensation: Statutory Presumptions

Douglas Reid Weimer
Legislative Attorney

Among the many types of benefits available to eligible veterans is disability compensation. This report provides a basic overview of various statutory presumptions that help veterans substantiate a service-connected claim for disability compensation. Disability compensation is a monthly benefit paid to a veteran by the Department of Veterans Affairs (VA) because of injuries or diseases that were incurred while on active duty, or were made worse by active military service.

The VA obligated approximately $46 billion to veterans in the form of monthly pension and disability compensation payments during FY2009. Approximately $42 billion went to veterans in the form of disability compensation. Disability compensation payments comprised approximately 40% of the total amount of funds the VA obligated to veterans (approximately $104.7 billion). To receive such monthly compensation, a veteran must meet basic eligibility requirements.

To be eligible for VA disability compensation, a claimant must prove that he/she is a “veteran,” and demonstrate that the disability for which he/she is seeking compensation is “serviceconnected.” To establish service connection, a veteran must provide evidence of (1) a current disability, (2) an injury or disease that was incurred or aggravated during service, and (3) a nexus (causal relationship) between this injury and the veteran’s current disability. A veteran must prove each of the aforementioned elements before the veteran can receive disability compensation.

In the context of claims for VA disability compensation, the veteran bears the burden of proof with respect to each of the aforementioned elements. To reduce the veteran’s burden of establishing service connection, Congress has enacted several procedural devices referred to as statutory presumptions that, where applicable, presume the existence of a fact despite the lack of specific evidence of the fact’s existence. Where a statutory presumption applies, the burden shifts to the VA to rebut the existence of the presumed fact with specific evidence.

Depending on the factual circumstances surrounding a veteran’s claim for disability compensation, statutory presumptions can help a veteran prove that his/her current medical condition is service-connected. For example, if a veteran can prove that he/she was engaged in combat with the enemy, and that the injury for which he/she seeks compensation is consistent with the circumstances of combat, the fact that the injury was incurred during the veteran’s active service is presumptively established even where there is no official record of the veteran’s injury. Consequently, the burden then shifts to the VA to rebut the presumption that the veteran was injured during active service. If the VA cannot rebut the presumption, the veteran has met onethird of his/her overall evidentiary burden without submitting any specific evidence of his/her inservice injury.

This report focuses on several statutory presumptions that relate to the second element of a service-connected claim for disability compensation, and synthesizes the legal principles that guide the VA’s application of the statutory presumptions during the claims adjudication process. Specifically, this report will discuss the “presumption of soundness,” the presumption of aggravation of a pre-existing injury or disease, the “line of duty” presumption, and finally, the “combat veteran” presumption, all of which are codified at Title 38 of the United States Code.

Date of Report: March 3, 2011
Number of Pages: 16
Order Number: R41454
Price: $29.95

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