Recently I talked about the combat presumption and how this can be a huge advantage in proving part of what you need to have a disability service connected. In this post, we will:
- Go a little more in depth on exactly who qualifies for the combat presumption,
- Give some examples of enemy engagements that may or may not qualify, and
- Suggest some additional evidence to trigger the VA’s duty to apply this presumption in your favor.
This presumption does not apply to all veterans for all events that happened throughout their military career. The in-service occurrence or aggravation of an injury or disease must be during the course of combat for the presumption to apply. Similarly, a veteran who engaged in combat does not get the benefit of the presumption for all incidents that happened during the course of his military service. Instead, he can only apply the presumption for injuries or aggravations during hostile encounters with the enemy.
Remember why we have the presumption in the first place. It is not to give a special benefit to combat veterans. Rather, it is supposed to put them on equal ground with veterans whose records were not subject to the chaos of combat situations.
What Qualifies as Combat?
The first thing you must show to qualify for this presumption is that the in-service event occurred while you were “engaged in combat with the enemy.” Once you prove this, you are able to take advantage of the relaxed evidentiary standard for the “event, injury, or disease” portion of your claim.
So, what types of encounters with the enemy qualify as “combat?” Sometimes, it is obvious – you fired at an enemy or received direct fire. The clearest situations are those where the veteran “personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.”
Many times, however, the facts are not so black and white. Sometimes veterans seek to have the combat presumption applied because they were in a combat zone, but that is generally insufficient to trigger the lower evidentiary standard of 38 U.S.C.S sec. 1154(b) and 38 C.F.R. sec. 3.304 (d) & (f). Likewise, a veteran will probably not meet the “combat” definition where personal harm was a mere possibility because of nearby action by an enemy force.
Courts have held that evidence of mortars directed at a military installation does not meet the required standard unless the mortar impacts were close to the veteran or caused casualties. In a case with somewhat similar facts, where the veteran was stationed at an air base during enemy attacks, the court held that this could be evidence of combat. In sum, the “combat” finding is very fact intensive and requires the VA to review all relevant evidence and make assessments as to the credibility and probative value of that evidence.
How to Prove Combat with the Enemy
As I mentioned above, the particular facts of your combat situation are the focus when VA is deciding whether the combat presumption should apply. So, you need to develop and present these facts as best you can. The relaxed “combat presumption” standard is what you are trying to get applied, but there is no relaxed standard on the threshold question of whether you had combat service.
While VA must give you the benefit of the doubt as with other issues in your claim, it is best if you have evidence to support your statement that you were in fact in combat when the injury or aggravation occurred. If you have service records indicating combat, that is usually all you will need.
This can be in the form of military awards, decorations or citations (i.e., Purple Heart, Combat Action Badge, Combat Infantry Badge, etc.). A combat military occupational specialty can also be
enough. Evidence of hazard duty pay or buddy statements from others in your unit can also support your own statements.
Do I Need an Attorney if I Can Get the Combat Presumption?
As I said in the earlier post on the combat presumption, proving the injury or aggravation occurred in combat is only part of what you need to prove service connection. You still need evidence of a current disability and nexus between that disability and the in service event.
Also, you may need help if the VA does not properly apply or weigh the evidence to determine if the combat presumption is applicable. The VA has a duty to assist, which includes telling you the sort of evidence that will support your claim of combat incurrence. But, then again, if VA did that correctly every time, there would be no need for blogs such as this one.
If you are a combat veteran who is having trouble proving your injury occurred during the course of combat, you may want to speak with me to see if I can help using the combat presumption or other evidence. Find out more in this article about how to set up a free veterans disability consultation.