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Lay Statements to Prove an in-Service Incident
The Lay Statements to Prove an in-Service Incident
In order for Veterans to obtain a favorable decision on a disability claim, they must first establish service connection. The VA requires that three fundamental requirements are met to establish service connection. These three requirements are
- Competent evidence of a current disability.
- Medical or lay evidence of in-service incurrence or aggravation of a disease or injury.
- Competent evidence of a link, or nexus between the in-service incurrence and the disability.
This article will focus on the second requirement, obtaining medical or lay evidence of an in-service incurrence or aggravation of a disease or injury.
This is a prominent issue because it is frequently the most difficult requirement to meet, especially for mental health disability claims.
Treatment In-Service, or Lack Thereof
During times of combat operations, obtaining treatment may not be possible or feasible. Mission requirements or the lack of accessible treatment facilities may prevent those involved in combat operations from getting treatment for their injuries when they occur.
If and when treatment is obtained, records of such treatment may not take place as this would be the last priority of work in this type of environment. Without service treatment records, the Veteran is left with no proof of an in-service incurrence of an injury. The VA will deny a disability claim without this proof.
The Combat Veteran Advantage
However, combat Veterans are given a huge advantage when it comes to satisfying this second element for service connection. Yet many Veterans are unaware of the VA regulation they can use to help them overcome the absence of treatment records in their folder. The two provisions that specifically address this special exception for combat Veterans who were engaged in combat with the enemy are 38 U.S.C.S. 1154(b) and regulation 38 C.F.R 3.304(d) and (f).
38 C.F.R. 3.304(d) states:
“Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation”.
Veterans filing a disability claim for a mental health condition and filing out the required VA form 21-0781a stressor report, should be familiar with 38 C.F.R. 3.304(f)(3). This paragraph states:
“fear of hostile military or terrorist activity”
means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury. It could also include a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft.
The Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.
What If I Didn’t Serve in a Combat Related MOS?
Any service member deployed in support of military operations may encounter enemy activity regardless of their MOS or role in their unit’s mission. Mechanics who accompany convoys for emergency vehicle repairs are just as vulnerable to enemy IEDs or ambush attacks as the rest of the convoy crew. Military bases in Theaters of combat are surrounded by hostile forces, so there is no longer a front-line of combat operations as there was back when this regulation was written.
You can better your chances for obtaining a favorable decision if you take the time to explain in detail the circumstances surrounding the injury you sustained. If you were exposed to indirect fire attacks, IEDs, or other enemy activity, then explain this in a well-prepared statement to VA.
Culza v Brown and Lay Statements
This case relates to lay statements in support of VA claims.
The Court held that 38 U.S.C. 1154(b) does not establish service connection for a combat Veteran, it aids the combat Veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. The statute has three evidentiary elements that must be met:
- The evidence must be satisfactory
- It must be consistent with the circumstances, conditions, or hardships of combat service
- It can prevail notwithstanding the fact that there is no official record of the incurrence of aggravation of the disease or injury during service
The Court also concluded that, in the case of a combat Veteran, once the above three elements are satisfied, section 1154(b)’s relaxation of adjudication evidentiary requirements dictates that the Veteran’s lay or other evidence be accepted as sufficient proof of service incurrence of aggravation unless there is clear and convincing evidence that the disease or injury was not incurred or aggravated in service or during an applicable presumption period.
The Court held that application of section 1154(b) required three adjudication rules:
- Every reasonable doubt is to be resolved in favor of the Veteran in determining if the three elements are met
- Service connection must be rebutted by clear and convincing evidence to the contrary
- The decision must be recorded in full
The Court, in discussing the credibility of lay evidence, held that the truthfulness of evidence is presumed, and that credible testimony is defined as that which is plausible or capable of being believed.
America’s Veterans Law Firm
Berry Law is committed to fighting for fellow Veterans, and your fire support team to battle the VA. If you were denied VA benefits or need assistance appealing your rating decision, Berry Law can help. Contact the Veteran lawyers at Berry Law today for a free consultation.
Established in 1965 by Vietnam War veteran and attorney John Stevens Berry Sr., Berry Law Firm is a team of veterans dedicated to defending, safeguarding, and fighting to protect the rights of veterans. Over the decades, thousands of veterans from across the country and all branches of the military have trusted our firm with their cases and, more importantly, their futures.