A successful VA claim has three elements:
- An event in Service;
- A current condition;
- A nexus between the event in service and the current condition.
So how do you prove an event in service if there is no record of the event because there were no record keepers in Afghanistan, Southwest Asia or on board that battleship in Vietnam?
VA rules and regulations address this problem. There is special treatment for combat veterans under 38 U.S.C §1154(b) implemented by 38 C.F.R. §3.304(d) and (f).
(d) Combat. 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, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. (Authority: 38 U.S.C. 1154(b))
Basically, these provisions require that statements regarding an event in service made by veterans who engaged in combat to be “accepted as sufficient proof” of the event.
This does not remove the other two requirements – current condition and nexus. However, the lowering of the burden of proof for combat veterans as to the event in service is very important and often not properly applied by VA adjudicators.
For instance, in a recently appealed case, a veteran had fallen down a flight of steps on a ship during the Vietnam war when the ship hit a mine. He injured his leg. Our office helped him prove that he sustained an injury even though there was no record of his specific injury. The veteran made a statement in support of claim regarding the injury and the limited treatment he received at the time. So long as the event is consistent with the circumstances of the combat, the statement must be accepted. The veteran must still present medical evidence of a link between his current condition and the event.
Remember, this special rule only applies to combat veterans. If you are a combat veteran and your claim was denied because of lack of service medical records, you will want to have that decision appealed. You may have to prove that you were in combat for your claim to be successful and you will need to provide a statement in support of claim that provides specific details of the circumstances of your injury to include date, place and the extent of the injury.
Often veterans whom are injured in combat situations do not receive treatment, as combat does not allow for treatment of injuries that are not life threatening. Many of these injuries go untreated and become more severe as time goes by. A veteran who has received an injury in combat and has been denied should seek representation with an attorney who can provide the research and guidance necessary that will allow for the claim to be granted. Call for your free consultation today.
