In a previous post we discussed the first required element of proving a claim for VA benefits – evidence of a current disability. Today, we are going to discuss the second element – evidence of a disease, injury, or event in service. The main idea of this element is that there must have been something that happened in service which caused the current disability, and the veteran must have evidence that this event occurred.
Outside of misconduct on the part of the veteran, such as the use of drugs or alcohol, nearly any kind of event that happened in service can be used to establish service connection. The main requirement is that the event happened in the time between the day the veteran entered service and the day the veteran was discharged. The event does not even need to be related to military duties. A veteran who injured his knee playing basketball while on active duty can be service connected for that injury in the same way that a veteran who injured his knee during combat can. But importantly, there is a difference in the evidence that will be sufficient to prove these claims – we will discuss below the lowered evidentiary burden for combat veterans.
The general evidentiary requirement is that the lay evidence (such as statements from the veteran and buddy statements) and medical evidence (particularly service medical records) must show, at a minimum, that it is as likely as not that the alleged event occurred during service, whether that be an injury, a disease, or the aggravation of an existing injury or disease. The evidence required to prove this element of service connection will vary depending on what the claim is alleging. For instance, the veteran alleging the he injured his knee playing basketball will have a more difficult time proving his claim if he does not have service medical records showing he was treated for a knee injury during service. A veteran who is claiming service connection for cancer based on radiation exposure will need proof of exposure to radiation. A veteran who is alleging a heart condition will need evidence that he was experiencing symptoms of the heart condition in service.
Note that having service medical records that corroborate a veteran’s story is not technically required. The VA is not allowed to reject a veteran’s lay statement about an in-service event simply because there are no corroborating service records in the veteran’s file. Instead, the VA is required to point to something in the file that supports the conclusion that the event would have been documented in the service records had it actually occurred. But note, in non-combat situations, the VA seems to have more discretion in rejecting a veteran’s statement regarding non-combat medical events that do not have corroborating evidence. Therefore, especially for non-combat veterans, developing the evidence to show the event occurred is very important.
How should you go about developing the evidence of an in-service event? A typical first step is a written statement from the veteran that describes in as much detail as possible the events surrounding the injury or disease during service. This lay statement will then hopefully be bolstered by service medical records, buddy statements, newspaper articles, or even letters or emails home from the veteran or other service members who witnessed the incident. The goal is to create a solid picture of the event in question, especially where there may not be much corroborating medical evidence.
As noted above, combat veterans have the advantage of a special presumption in proving the second element of service connection. This is due to the fact that in combat situations, record keeping is often deficient, either because records are not made at all, they are incomplete, or they are destroyed altogether. Therefore, if a combat veteran alleges a certain event occurred during combat, the VA must generally accept the veteran’s statement as fact, even if there are no service records that support the veteran’s statement. The key here is that the even must be consistent with the “circumstances, conditions, or hardships of service,” and there must be no clear and convincing evidence to the contrary.
As you can see, proving the second element of service connection can be more difficult, if you do not have much corroborating evidence, or less difficult, if you are a combat veteran. Therefore, it is important that you think about this element of service connection carefully and determine exactly what evidence is going to be needed to win your particular case depending on the circumstances. And then, once you have proven the first element of service connection (current disability) and the second element of service connection (event in service), it is time to move on to perhaps the most difficult element to prove – the nexus between the two, which we will discuss in an upcoming post.
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