October 2013 Presentation to EJWWilliam F. Russo

Office of the General CounselUS Department of Veterans Affairs

Service-Connected Disability Compensation & Nonservice-Connected Pension

The following VA regulations are still in draft form and have not been published. They are presented here only for educational purposes.

DRAFT DRAFTDRAFT

§ 5.243 Establishing service connection.(a) Requirements. . . .proof of the following elements is required to establish service connection: 

Key Elements of Service Connection

(1) A current disability;(2) Incurrence or aggravation of an injury or disease in active military service; and(3) A causal link between the injury or disease incurred in, or aggravated by, active military service and the current disability.

Key elements (cont.)

VA will consider all three elements . . .proven if. . .service produced a disability that is clearly permanent by its nature, such as the amputation of a limb or the anatomical loss of an organ.

Permanent Disability in Service

VA will not deny service connection for lack of a current disability solely because. . . disease, or a chronic residual of an injury, enters temporary remission. Examples… chronic tinnitus, malaria, mental illness, skin disease, and intervertebral disc syndrome.

Temporary Remission

(b) Proof of incurrence of a disease during active military service does not require diagnosis during service if the evidence otherwise establishes that the disease was incurred in service. 

Time of Diagnosis is Not Necessarily Controlling

(c)(1) VA will grant service connection for a disability not clearly due to an intercurrent cause if:(i) It is caused by a chronic disease and veteran had that disease in service or within an applicable presumptive period; or(ii) The veteran had an injury in service and currently has a disability due to chronic residuals of the same injury.

Chronic Residuals of Injuries and Chronic Diseases

VA will consider the following to be chronic: a disease listed in § 5.261(d), Certain chronic diseases VA presumes are service connected (based on 38 CFR 3.309(a).Walker v. Shinseki (2012)

Proof that a Disease or Residual is Chronic

(d) Where signs or symptoms noted in service, or during an applicable presumptive period, are not considered a chronic disease or residual of an injury under paragraph (c)(2) of this section, service connection is established when all of the following are shown by competent evidence:

Continuity of signs or symptoms

(1) The veteran had signs or symptoms of a disease during… service or during an applicable presumptive period;(2) The signs or symptoms continued from the time of discharge or release from… service until the present; and(3) The signs or symptoms currently demonstrated are… of a disease, or the residuals of a disease, to which paragraph (d)(1) of this section refers.

Continuity of signs or symptoms

§ 5.371(b) Eligibility requirements for Improved Disability Pension. A veteran is eligible for Improved Disability Pension if the veteran:(1) Had wartime service under § 5.372, Wartime service requirements for Improved Pension; and(2) Is either:

(i) Age 65 or older; or(ii) Permanently and totally disabled under §

5.380, Disability requirements for Improved Disability Pension.

Nonservice-connected Pension

(d) Entitlement requirements for Improved Disability Pension. In addition to the eligibility requirements of paragraphs (b) and (c) of this section, a claimant or beneficiary must meet the following income and net worth requirements to be entitled or to continue to be entitled to Improved Pension:

Income Requirements

(1) Income. Adjusted annual income cannot be greater than the applicable maximum annual pension rate.

(2) Net worth. Net worth must not bar payment of Improved Disability or Death Pension, as provided in § 5.414, Net worth determinations for Improved Pension.

Income Requirements (cont.)

(b) World War II

December 7, 1941, through December 31, 1946.

(c) Korean Conflict

June 27, 1950, through January 31, 1955.

(d) Vietnam Era

August 5, 1964, through May 7, 1975.

(e) Persian Gulf War

August 2, 1990, through a date to be prescribed by Presidential proclamation or by law.

Wartime Service (usually must be 90 days or more)

(a) Applicability. This section states the general standards of proof to prove a fact or resolve an issue… These standards apply unless a statute or another section of this part specifically provides otherwise.

5.3 Standards of proof

(b)(1) Weight of the evidence. Weight of the evidence means the persuasiveness of some evidence in comparison with other evidence.

Proving a fact or issue

(2) Equipoise. . . means that there is an approximate balance between the weight of the evidence in support of and the weight of the evidence against a particular finding of fact or the resolution of a particular issue.

Proving a fact or issue

(3) When the evidence is in equipoise regarding a particular fact or issue, VA will give the benefit of the doubt… the fact or issue will be resolved in the claimant’s favor. A fact or issue that would tend to disprove a claim must be established by a preponderance of the evidence.

Benefit of the doubt rule

The rule applies even in the absence of official records. For example, VA will consider that no official records may have been kept… under combat or similarly strenuous conditions if the incident is consistent with the probable results of such known hardships.

Benefit of the doubt rule (cont.)

(4) A fact or issue is established by a “preponderance of evidence” when the weight of the evidence in support of that fact or issue is greater than the weight of the evidence against it.

Preponderance of evidence

(5) In determining whether the evidence is in equipoise, VA will consider whether evidence favoring the existence, or nonexistence, of a relevant fact or issue is supported or contradicted by the evidence as a whole and by known facts.

Weighing the evidence

Objectively unsupported personal speculation, suspicion, or doubt on the part of a person adjudicating a claim is not a sufficient basis for concluding that the evidence is not in equipoise.

Weighing the evidence (cont.)

(6) …when determining if evidence is new and material... the evidence need not be in equipoise. VA will reopen a claim when the new and material evidence merely raises a reasonable possibility of substantiating the claim.

Reopening claims

(c) A presumption is rebutted if the preponderance of evidence is contrary to the presumed fact. Affirmative evidence means evidence supporting the existence of certain facts.

Rebuttal of a presumption

(d) VA does not simply count the pieces of evidence for or against… a relevant fact or issue. . .VA will assess the credibility and probative value of each piece and then weigh all the relevant evidence… Not all pieces of evidence will carry equal weight.

Quality of evidence to be considered

(e) VA may consider the weight of an absence of evidence in support of, or against, a particular fact or issue.

Absence of evidence may be evidence