So far we’ve written about presumption, what is and how it came to be created. However, it’s time to discuss how you actually go about developing a case that yields service connection and a disability rating award. Before we begin, the usual caveat: I’m not lawyer and I am not providing legal advice; I’m merely amplifying what is there for the reading in the federal code.
Up front, you need to understand these two interconnected yet separate concepts: Presumption of Exposure and Presumption of Service Connection. The Presumption of Exposure points to a simple test: were you there? Most Veterans have a very good idea of where they were, but can they prove it? To satisfy the question inherent to Presumption of Exposure you must be able to prove that you were in the place at the times specified in the associated presumptive class. For example, if you seek service connection for a disorder you assert is rooted in your military service in Saudi Arabia in 1990-1991, you must offer written proof that you were present at that time. For example, if you have TDY orders, aeronautical orders, decoration narratives, and testimony of others who witnessed you in theater, then you ought to be able to meet the Presumption of Exposure test. But, you are at best only half way there.
The other test to satisfy is Presumption of Service Connection. Honestly, this is the one most commonly botched by Veterans. Why? Most Vets later say they did not understand what the VBA needed to award service connection. Here’s the good news: you don’t have to fail first to learn how to succeed later. In the claims examiner’s office, the examiner will do something that may surprise you if you are ignorant of VBA process, and later it will read like sleight of hand. I assure you, it is not. Here’s how this will go…
The examiner, using the VBA’s claims handling handbook will replace nexus—definitive proof that your given disorder, disease, condition, etc. that is the result of a specific cause in the military operating environment at that time with something else. That something else is an assumption, hence we have the lineage of the word “presumption.” Within that assumption is the mechanics of this notion: your condition, disorder, disease, etc. is more likely than not caused by your military service. If you’ve read other articles on the Medical Tab, you have seen that phrase used elsewhere. Your VA attorney or your VSO can unpack the legal significance of the italicized words. Are we done? Nope.
You still need a diagnosis from competent medical authority, and this is the thing that many Veterans get wrong when they submit a disability claim under the rubric of a presumption such as Gulf War Veterans. You must provide a valid diagnosis of a medical condition that is included among the list of conditions listed in that respective presumptive class. There are other important concepts at work here; for example, the complexity of the diagnosis or diagnoses if multiple conditions are documented. The extent of the symptoms and degree of impairment also play substantive roles in the examiner’s awarded disability rating.
The thing to bear in mind is that not all Veterans in the same place at the same time will ultimately be awarded identical disability ratings. While Veterans can jaw about how similar they are, the reality is that the documented particulars matter as does how a Veteran constructed his/her fully developed case. We cannot over-emphasize this point: how you write, how you reason, how you assemble your claim on the VA form 21-526EZ narrative block and its accompanying information has a correlatable impact on your eventual success. The dictum is simple: make it too hard for an examiner to read and reason through, then even the most committed examiner will be thwarted. Do you know how to effectively write to someone who is reading your case details for the first time? Do you know how to invest the examiner so that he/she reads all the way to the end of everything your claim offers?
That’s the stick-n-rudder of presumption connection. In closing, as we always say around here, if you think you need a VSO or an attorney…well, you probably need a good VSO and/or an experienced VA lawyer. Go well.
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