Requirement #2: An in-service injury, event, or medical condition
The veteran’s current disability must have been caused, aggravated, or somehow contributed to by an in-service disease, injury or event. The standard used by the VA is that it is “at least likely as not” that the in-service condition, injury or event caused the veteran’s current disability. Sometimes we hear a misconception that this event or condition has to be combat related, happen while out in the field, or be caused by some training accident. It does not. In fact, the disease, event or injury does not necessarily even have to be related to military duties. As long as it happens while the veteran is on active duty and does not involve some misconduct on the part of the veteran, it likely counts.
What must the veteran show to prove the in-service injury, event, or medical condition?
The veteran’s own statement that he/she experienced an event or an injury is generally not enough. The VA will weigh the veteran’s statement against other evidence, including whether there is an absence of any government record recording the event. That said, the veteran’s own detailed statement is the best place to start.
Pro Tip: Use the evidence to help tell the story. When putting together an argument on this topic, we typically start with a detailed statement (5W’s and then some) from the veteran. We then use all the other evidence we’ve gathered (read this article) as evidence to support the veteran’s statement.
Remember, the standard is “as likely as not.” In other words, the veteran must demonstrate, using evidence, that it is at least as likely as not that the event, injury or condition occurred in service. Where there is conflicting evidence, the VA will weigh the positive and negative evidence.
The evidence required depends on the condition
- A veteran seeking service connection for bursitis of the hip caused by a dislocated hip after a bad parachute jump will need evidence of the in-service hip injury.
- A veteran seeking service connection for lung cancer due to an asbestos exposure will need to submit evidence of in-service exposure to asbestos fibers.
- A veteran seeking service connection for post-traumatic stress disorder will have to submit evidence of a traumatic event.
The VA cannot reject a veteran’s statement, in the absence of other evidence showing the in-service event, injury or disease, solely because there is no other evidence. With regard to a medical condition, the VA must be able to point to other evidence that if the veteran indeed suffered from the claimed medical event, it would be documented in the service records. Similarly, the VA can generally reject a veteran’s statement of events if it can show that were the veteran’s statement true there would be some corroborating piece of evidence in the veteran’s service record.
Confusing, perhaps, but the thing to remember is gather your evidence and build your own case. Service records and service treatment records are the first place to start. But what if the event, injury or condition isn’t reflected there?
- Buddy statements. Lay statements by fellow servicemembers relaying their observations of the event, the veteran’s symptoms, or the veteran’s exposure. Just like the veteran’s statement, they should be as detailed as possible. How do they know the veteran? Flesh out the 5W’s of the event or injury. Describe the frequency, duration and severity of symptoms.
- Ship’s deck logs
- Safety or incident investigations
- Unit history records
- Newspaper articles regarding an event (e.g. a plane crash)
- Letters, e-mails, Facebook messages, etc. sent at or around the time of the incident or relaying symptoms of the condition
- Get creative!
Special rules apply to claims for disability caused by a Military Sexual Trauma (MST), which you can read about here. There are also two very important exceptions for events which occur in combat and illnesses presumed to be caused by certain exposures.
Exceptions
There are two exceptions to this evidence rule. First, the rules are greatly relaxed if the in-service disease, injury or event occurred during combat. Second, some illnesses are presumed to be connected to a veteran’s service if other conditions are met. It is difficult to understate the importance of these exceptions. They remove what is sometimes a huge hurdle in proving a veteran’s claim.
The Combat Exception
The normal rule that the veteran’s lay statement, alone, is not sufficient to prove an in-service disease, injury or event does not apply to combat events. Record keeping in a combat environment is difficult. Because of this, if a veteran states that he or she suffered some injury or condition during combat, the VA must generally accept that statement as fact. 38 U.S.C. 1154(b) is the statute which provides for this:
In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, 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 or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.
The bolding is mine and highlight the important points in this law.
What does it mean to be “engaged in combat?”
This phrase has been interpreted to mean the veteran ““personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, as determined on a case-by-case basis. A showing of no more than service in a general ‘combat area’ or ‘combat zone’ is not sufficient to trigger the evidentiary benefit of § 1154(b).” Moran v. Peake, 525 F.3d 1157, 1158 (Fed. Cir. 2008). In other words, almost direct engagement with the enemy or “instrumentality” is required. For example, artillery rounds landing around an individual has satisfied this requirement. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Improvised explosive devices and other “instrumentalities” typical in a counterinsurgency type operation should also satisfy this requirement.
The VA is not required to accept as true the veteran’s statement that he/she engaged in combat. In other words, the same presumption of truth that applies to the veteran’s statement of the combat-related disease, injury, or event does not apply to the veteran’s statement that he/she was engaged in combat. But with a well-written, detailed statement and whatever supporting evidence the veteran can muster, this is not a huge hurdle. That’s because even though the VA is not required to blindly accept the veteran’s claim that he/she was “engaged in combat,” the VA cannot also impose a requirement that the veteran’s statement be corroborated by other evidence. What the VA is supposed to do is consider the credibility of the veteran’s statement in light of all the other evidence of record.
What this means is the VA cannot flip through a veteran’s service record, see no combat medals and no combat MOS, and conclude that the veteran never participated in combat. So, although the VA cannot reject a veteran’s statement because there is no corroborating evidence, corroborating evidence is the veteran’s friend when amplifying the credibility of their own statement.
What corroborating evidence could I, the veteran, offer?
- DD-214 (showing deployment to a combat zone)
- Awards (maybe the citation mentions the combat event, or the award is of the type issued for combat experience – think a Combat Infantry Badge, Combat Action Badge, Combat Aircrew Insignia, etc.)
- MOS (if of the type that typically engages in combat)
- Buddy Statements (recounting the combat engagement. Remember the 5W’s – tell the story in detail)
- Letters/emails/message home (that, in real time, relayed or recounted the combat event)
- Unit histories, news articles, etc. (Google is your friend – see if any articles were written about the unit’s deployment)
- List the bases, FOBs, COPs, etc. where the veteran was based or visited; link this to other information regarding attacks on that base, combat activity in the area, etc.
The more evidence the veteran has supporting their statement, the more credible the statement is. The more credible it is, the harder it is for the VA to reject the veteran’s claim that he/she was engaged in combat.
What is satisfactory lay or other evidence?
The VA is only required to accept “satisfactory lay or other evidence” as proof of the combat injury or event.
Satisfactory = “credible, plausible, or capable of being believed.”
The determination as to whether the veteran’s statements are credible is done using only evidence submitted by the veteran. What the VA should do is look at the evidence submitted by the veteran and put on blinders as to all other evidence. What the VA should not do, for purposes of determining whether the veteran has submitted satisfactory evidence, is weigh the veteran’s evidence against the other evidence in the record. So, for example, the veteran submits a statement claiming he/she experienced a combat-related trauma. The VA should consider whether statements made in the document are consistent and plausible. The VA should also consider whether those statements are consistent with any other evidence submitted by the veteran. If the VA compares the veteran’s statement against other evidence in the file, that is an appealable error.
What does it mean to be consistent with the circumstances, conditions, or hardships of such service?
This one (finally!) means just what it says. This is a bit of a common sense rule, and generally the VA should follow a similar pattern as above. Review the veteran’s submitted evidence (and only that) and consider whether it makes sense in light of the claim being made.
The VA’s Rebuttal | Clear and Convincing Evidence to the Contrary
Here is where the VA gets to weigh negative evidence in the record against the veteran’s claim that he/she experienced a combat trauma/injury.
Instances where the event or injury is presumed to have occurred
There are special situations where the VA will presume an injury or event has occurred. In other words, the veteran need only show he/she was in a particular place at a particular time and the requirement is satisfied. Likely the most well-known of these is exposure to Agent Orange. That is, however, not the only instance where the VA will presume an injury or event has occurred. But Agent Orange provides a good example of the presumption. For veteran who served “boots on the ground” in Vietnam (and now in the blue waters), the VA presumes the veteran was exposed to Agent Orange. The veteran does not need to submit further evidence that they were in a unit which handled Agent Orange, were on patrol in an area where Agent Orange was used, etc. Just being there is enough.
Another presumption is for conditions which are chronic. Veterans who develop certain chronic conditions within a specific time after service are presumed to have had those conditions in service.
Final Thoughts
- Be prepared to gather your own evidence of the in-service condition, event or injury
- You may have to get creative, but remember you are not limited to your service record or service treatment record. The veteran’s own statement, buddy statements, and other documents which corroborate the veteran’s story are very useful
- If the VA wants to pin the current disability on a pre-service condition, remember the VA must prove it (and the veteran can also argue that even if they did have a pre-existing condition, their service aggravated that condition)
Need Help With A Claim?
If VA denied your claim because it doubts the in-service event, injury, or medical condition, Valor Firm can obtain your claim file and perform a free evaluation of your claim. Please call us at (504) 218-2510 or fill out the form on our contact page.