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Presumption and VA Claims – What They Are

Presumption and VA Claims – What They Are

For VA disability claims, a presumption can work in two ways: proving exposure to harmful toxins or chemicals during service, or linking a disability to service. VA creates presumptions to help make proving aspects of VA disability claims easier for veterans.

Presumption of Exposure

First, we will talk about the presumption of exposure. A presumption of exposure means that if a veteran has qualifying service, meaning they served in a specific area during a defined time frame, VA will presume that they were exposed to certain harmful chemicals or environmental hazards. Presumptions of exposure help replace the requirement for service connection that requires veterans to have an in-service event or symptom that caused their current disability. In these instances, VA counts the in-service exposure(s) as the event.

Vietnam Veterans and Agent Orange Exposure

Veterans who served “boots-on-the ground” in Vietnam, or served on ships that navigated the inland waterways of Vietnam, are presumed exposed to the toxic herbicide Agent Orange. This presumption of exposure does not include veterans who served off the coast of Vietnam during the war, called Blue Water Navy veterans. However, if you are a Blue Water Navy veteran whose ship docked ashore in Vietnam, you are presumed to have been exposed to Agent Orange if you went ashore while the ship was docked. This counts as “boots-on-the-ground.”

Gulf War Veterans

Veterans who served in the Southwest Asia theater of operations after August 2, 1990 are presumed to have been exposed to particulate matter and various environmental hazards such as emissions from oil well fires. Since there were so many exposures in this area, it can be difficult for veterans to pinpoint the specific exposures that caused their current disability. VA implemented this presumption in part to make it easier for veterans to obtain disability compensation by presuming they were exposed, rather than requiring that the veteran prove their exact exposure.

Atomic Veterans

VA presumes that veterans who: took part in atmospheric nuclear testing; occupied or were a Prisoner of War (POW) in Hiroshima or Nagasaki; had service in Paducah, Kentucky: Portsmouth, Ohio: or Oak Ridge, Tennessee before February 1, 1992; or served in Amchitka, Alaska before January 1, 1974 were exposed to ionizing radiation. Ionizing radiation includes gamma rays, x-rays, and higher ultraviolet parts of the electromagnetic spectrum.

 

Presumption of Service Connection

A presumption of service connection is when VA presumes a veteran’s disease was caused by their military service, usually due to a certain exposure. The presumption of service connection takes the place of the medical nexus requirement in obtaining service connection. A medical nexus is a link between an event during the veteran’s service and their current disability, usually in the form of a medical opinion. A presumption of service connection acts as that link. VA has several presumptions that apply to different groups of veterans based on their exposures.

Presumption for Herbicide Exposure (Agent Orange)

VA presumes that certain diseases are caused by a veteran’s exposure to herbicides during service, such as Agent Orange. These diseases include ischemic heart disease, type II diabetes mellitus, and prostate cancer, among many others. If a veteran was exposed to Agent Orange or other harmful herbicides during their military service and then develops one of the associated diseases, they will not have to prove that their condition was caused by their exposure to Agent Orange. Instead, VA will presume that the disease was caused by Agent Orange.

Gulf War Veterans

Under VA regulation 38 CFR § 3.317, it is presumed that if a Gulf War veteran develops certain types of conditions or patterns of symptoms, it was caused by their exposure to environmental hazards in the Southwest Asia theater of operations during their military service. There are three categories of conditions that the presumption covers: infectious diseases, undiagnosed illnesses, and medically unexplained chronic multisymptom illnesses (MUCMIs).  Check out our VIDEO to learn more about the three categories.

Former Prisoners of War (POWs)

Prisoners of War (POWs) are veterans who were forcibly captured or interned by an enemy government, its agents, or a hostile force while in the line of duty during active military service. VA presumes a number of disabilities as caused by a veteran’s time as a POW, however, the conditions that are presumed can depend on how long the veteran was held in captivity. Some conditions are only presumed if the POW was held for 30 days or more, while others are presumed for any length of time.

Atomic Veterans (Ionizing Radiation Exposure)

VA presumes that veterans who served in certain areas were exposed to ionizing radiation, a type of radiation that is extremely harmful to humans. For atomic veterans, VA will presume that exposure to ionizing radiation is the cause of the veteran developing certain diseases, including a number of cancers and leukemias.

Chronic Diseases

There is also a presumption of service connection for veterans that is not based on exposures during service.  This presumption, under 38 C.F.R. 3.309(a), has to do with chronic diseases that a veteran develops within a certain time period following their military service. The list of conditions is long, and includes disabilities such as type II diabetes mellitus, arthritis, and leukemia. For a majority of the conditions listed in the regulation, the condition must be manifest to a compensable degree (10%) within a year from a veteran’s separation from service.  Exceptions to this include amyotrophic lateral sclerosis, which will be granted service connection at any time after a veteran’s service; and multiple sclerosis, which will be granted service connection on a presumptive basis if it manifests within 7 years after service.

Category: Veterans Law

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