How to Get the Combat Presumption

Modern troops silhouette against sunset sky in Middle East The combat presumption can be a powerful tool in winning your VA disability claim, but you need to know how to make VA trigger this presumption.  If you are unfamiliar with the combat presumption, take a minute and read our blog describing the combat presumption’s purpose in more detail.  You might also want to read a follow-up blog discussing which veterans and which types of hostile enemy encounters meet VA’s definition of combat.  If you already know a little about the combat presumption and know you may qualify, the next step is making sure you present what you need to VA so they will be required to apply the presumption in your situation.

Not Just Any Evidence Will Do

The combat presumption allows the veteran’s statement to be enough for VA to presume your disease, injury, or event happened during service.  But that does not mean that VA has to accept all such statements and evidence.  Rather, VA only has to accept evidence that conforms with the requirements set forth in the law and regulations addressing the combat presumption.  Before the VA must accept the veteran’s statement or other evidence as fact regarding in-service incurrence or aggravation, the evidence must:

  1. Be “satisfactory”,
  2. Be consistent with the circumstances, conditions, and hardships of the veteran’s service; and
  3. There must not be clear and convincing evidence in the record against incurrence or aggravation during combat.

If all three of these points are met, the veteran is entitled to application of the combat presumption.

What Evidence is “Satisfactory”?

The courts have interpreted “satisfactory” to mean evidence that is credible, plausible, or capable of being believed.  Essentially, VA will be looking at the statements and evidence submitted by you to see if it is internally consistent (meaning no contradictions from one part of the statement to the next) and seems to be believable based on what exactly is being said.

VA will also be looking at this statement or evidence to see if it contradicts other statements or evidence in the record.  So, if you say the event happened one way, but you also include a buddy statement that gives a much different account of events, VA may find that the evidence for in-service incurrence or aggravation is not credible.

Remember, give them what you have to and keep it at that.  Even if you and your fellow servicemember are being completely honest, different people have different memories and perceptions.  As the saying goes, the devil is in the details, so keep it as simple as you can to prove what you need.  However, it is important to know that when determining whether the veteran’s statements are satisfactory, VA is supposed to resolve every reasonable doubt in favor of the veteran if the evidence is “in equipoise,” meaning there is an equal amount of evidence for and against the veteran.

Also, only evidence that clearly contradicts should be considered when making this determination of the evidence being satisfactory.  If particular statement or document is ambiguous, it should not be considered at this point.

What Does It Mean to be Consistent with Circumstances of Service?

This simply means that what you describe as part of your combat service must be what one would expect for that particular situation.  For example, loud noise exposure would be consistent with the service of an infantryman in Vietnam because they routinely experienced acoustic trauma from small arms fire, mortars, etc.  Again, all reasonable doubt here should be resolved in the veteran’s favor.

If the veteran meets these two criteria (satisfactory and consistent), then the combat presumption will apply UNLESS there is strong evidence that the disease, injury, or event was not in service.

What Evidence Can Cause Me to Lose the Combat Presumption?

Once you meet the first two steps above, the VA can consider the evidence that tends to show you did not have an in-service occurrence.  Although VA does get to consider negative evidence at this point in its analysis, the evidence must pretty strongly contradict your statements and evidence showing it happened in combat.  The legal standard applied here is “clear and convincing evidence.”  If it does not meet that level, the veteran should keep the combat presumption.

Of course, the next question is what qualifies as clear and convincing evidence.  This is a high standard of proof.  VA claims in general are decided on an “as likely as not” standard, which means if the evidence is 50-50 each way, the veteran wins.  Compare that to the “beyond a reasonable doubt” standard in criminal cases, which is the highest standard possible.  “Clear and convincing” is somewhere between these two, but the evidence should be heavily weighted against the veteran before the combat presumption does not apply.

If you know your disability is related to an event, injury, or disease in combat but have been denied service-connection by VA, you probably need to talk to a VA-accredited disability attorney to see if VA correctly applied the combat presumption in your claim.  If not, you may be able to appeal the decision if you act quickly.

The attorneys in our firm would be happy to provide you with a free consultation to answer questions you may have about the combat presumption or other issues involving veterans disability benefits.  If you would like to set one up, simply call the phone number or complete the “Need Help” form on the right of this page.

Travis Studdard is an attorney who focuses on representing veterans in VA disability compensation claims.  He regularly writes about issues that are important to veterans and their families.

You can subscribe to his Veterans Disability channel on YouTube.

Rita BarnesRita Barnes
00:03 20 Jan 22
This is a great group of people who really care about your well being. They all treated me as though I was family and helped me with my work comp case in more ways than the average would have.Thank you Jason and Thank you Tina! For doing an awesome job.
Cortex ButlerCortex Butler
18:09 29 Dec 21
I am a Veteran of United States Air Force and was awarded my first 30% in 1996 and have been fighting for my rating for 26 years I came to Perkins and Studdard in 2019 while my mom was in a terrible incident and was given to much anesthesia and through GODS Grace she was spared her life, She is disabled since 2018 and I have been struggling with my life and issues and yet I didn’t call the law firm every 10 minutes or call being rude anytime, I mentioned this as I got to know Jessica more than just a phone call and Mr Studdard was always available when not working on other cases or in court, They always called back and Never had to do a call back, My Review is Simple in Life there peaks and valleys and it doesn’t stop because you have issues, Perkins & Studdard took my case in 2019 in 2021 I received my 100% from VA, I Was Never Rude, I was Never Promised Success, I Was Never Lied too and I was Always Treated with Respect, Friendliness, and Kindness the Real Stuff not a (Money Thing) If You want a firm that Cares about the Client and will work on your case even through a pandemic, Will not lie, will not promise anything will communicate your case and will Give you their Best ALWAYS THIS IS THE Best Law Firm for VETS HANDS DOWN Perkins and Studdard THERE IS NO OTHER 100% we had 5 calls Total Case That’s Taking Care Of Business
annetteMomma nokesannetteMomma nokes
14:29 12 Sep 16
Jason and his paralegal Lisa were on point and on top of their game when it came to handling my worker's comp. injury case. I tried going it alone and the insurance carrier pushed me around. They denied extra physical therapy. They denied injections the doctor recommended to ease my pain. When I turned my case over to Jason things turned around, QUICK. They were at all times attentive and on top of my case. I cannot recommend Jason and his staff enough. If you are hurt at work, this is the firm you want on YOUR side.
Sheila KirklinSheila Kirklin
23:11 12 May 16
Jason Perkins, was my lawyer in a workers comp. case, my case has settled now, and I am very happy for all Jason and his office hard work on my case, he was always there to help me out with any questions that I had or help I needed. Jason is a excellent lawyer and if I ever need another one I would only go to Perkins,Because I believe they would be able to help me in any situation I am in need of..
Anna PabonAnna Pabon
23:16 13 Sep 15
I recommend Perkins Law Firm. Everyone I came in contact with there was very nice. Kim was very helpful and any time I had a question she made sure I got an answer. Ann Margaret really took the time to explain things to me.

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