In this article, part one of two, we discuss evidentiary presumptions that can help veterans prove their claims. An evidentiary presumption is a legal rule that allows a fact or issue to be presumed “proven” without the need for documents or testimony. In this article, we discuss the presumptions related to exposure. In part two, we will discuss presumptions related to the causal connection between the exposure and various medical conditions. If you think you are eligible for veterans’ disability benefits, contact our office for help and advice. We are proven New Orleans veterans’ disability attorneys.
New Orleans VA Disability – Evidentiary Presumptions and Nexus
To be eligible for disability, a veteran must file an application for benefits. Generally, evidence must be provided of three legal elements:
(1) the existence of a current disability;
(2) evidence of an in-service occurrence or aggravation of an injury or disease; AND
(3) a causal nexus between this injury or disease and the veteran’s current disability.
See 38 U.S.C. §§ 1110 and 1131. Providing “evidence” generally means providing to the Veterans Administration (“VA”) with a large amount of documentation in the proper format and manner. To help veterans obtain the benefits to which they are entitled, Congress passed laws, and the Veterans Administration has enacted regulations, that provide evidentiary presumptions that can help a servicemember establish his or her eligibility. See 38 U.S.C. §1154(b). If there is an evidentiary presumption, then the veteran does not need to provide documentation on that particular fact. This makes proving eligibility much easier and is helpful because (1) the veteran can file with less paperwork and (2) sometimes the service records are incomplete (do not mention the in-service event) or might be missing/lost.
New Orleans VA Disability – Presumptions of Exposure: Agent Orange
As noted above, there are two important categories of presumptions: (i) exposure and (ii) causal connection to a disease or medical conditions. Agent Orange exposure is a good example of the former. Agent Orange was used in Vietnam, Laos, and other parts of the Southeast Asia theater of operations during the Vietnam War. Also agent Orange is a very toxic plant-killing chemical used massively to cause deforestation in the jungles. The jungle undergrowth was used by the enemy as cover.
Without an evidentiary presumption, veterans would have to prove the following:
- Exposure to Agent Orange
- In a sufficient quantity (or over a sufficiently long time period)
- To cause the medical condition at issue
With respect to Agent Orange, the VA has essentially agreed that to the first two parts. So much Agent Orange was used that it is hard to imagine that any Vietnam veteran way not exposed as the gas and liquid was blown on the winds and got drenched in the soil. If a service member can show that he or she was in the theater of operations during the specified time, then the VA will presume both exposure and sufficient exposure.
Thus, instead of having to prove exposure and sufficient exposure, the veteran need only prove that he or she was in the theater of operations at the relevant time. The VA has enacted regulations describing the theaters of operations and the time periods when Agent Orange was in use. For example, all service members who were actually in Vietnam are entitled to the presumption. Likewise, for Navy veterans who were on ships and vessels that operated primarily or exclusively on the inland waterways or docked in Vietnam are entitled to the presumption.
These types of vessels would include landing ships, river patrol craft, and certain Coast Guard Cutters. By contrast, Navy veterans who served in vessels off the coast–not in coastal waters–are not entitled to the presumption. The presumption applies for any veteran who served or visited in Vietnam from January 1962 to May 1975. The presumption of exposure ealso applies to service in a small number of units in Korea from April 1968 to July 1969. See VA summary here.
New Orleans VA Disability – Other Presumptions of Exposure
In addition to Agent Orange, there are two other main presumptions of exposure: (i) radiation exposure for certain World War II veterans and those involved in nuclear tests and (ii) exposure to airborne toxic particulates for Gulf War veterans.
A presumption of exposure to harmful ionizing radiation is provided to veterans who occupied the territories in and around Hiroshima and Nagasaki or for those who had service involving testing of atomic and H-bombs. Service, for example, at various testing sites such as Oak Ridge, Tennessee prior to 1992 will qualify. Ionizing radiation causes a number of medical conditions including a large array of cancers and reproductive disorders.
Veterans who served in the various Gulf Wars beginning in the summer of 1990 are entitled to the presumption of exposure to various toxic particulates and emissions from oil well fires. However, the presumption of exposure does not apply to burn pits from the Iraq war in 2001 and the following years. Veterans’ advocates are working to get the VA to recognize the hazards of the burn pit, but the efforts have not yet succeeded. See the new report here.
New Orleans VA Disability – What Happens if the Presumptions Does Not Apply?
If the presumption of exposure does not apply, that does not mean that the application for disability will be denied. Rather, it simply means that the veteran must provide evidence of exposure and of sufficient exposure.
Again, let’s take Agent Orange as our example. Let’s assume you, a veteran, did not serve in Vietnam itself, but only served on a naval ship off the coast. As noted above, you are not entitled to the presumption of exposure. However, let’s imagine that your vessel was transporting drums of Agent Orange and one of the drums ruptured while you were handling it. In our example, as part of your application for disability, you must provide documentation with respect to your service on the vessel, the accident that caused the Agent Orange spill and your exposure to the chemicals and/or vapor. This might be shown in your service record, medical records from the time, accident reports, deck logs or other vessel records.
Contact New Orleans SSDI/VA Benefits Law Firm Ascend Disability Lawyers, LLC Today
For veterans who are disabled from exposure to burn pits, contact the experienced New Orleans VA disability benefits attorneys here at Ascend Disability Lawyers, LLC. We have a team of dedicated lawyers and staff that are proven with years of experience helping veterans get their disability. Contact us via email or by calling (855) 631-2544. Call today.