Written by attorney Ryan Patrick Smith

Prosecuting a Claim Before the Department of Veterans Affairs: The Veteran's Burden of Proof

By law, a veteran is entitled to service-connected disability compensation if she suffers from a disease or injury incurred or aggravated in the line of duty so long as she is not disqualified because she received a dishonorable discharge or release or her willful misconduct or abuse of alcohol or drugs caused the disability. See 38 U.S.C. §1110; 38 U.S.C. §101(2) (2009). In most instances, determining whether a veteran is disqualified is routine. The veteran’s Form DD 214 will indicate the type of discharge. Moreover, the veteran’s service medical records (SMRs) will usually contain evidence of some sort of prohibited act or acts. As such, more often than not the critical question is whether the veteran suffers from a disease or injury that is attributable to her service to our country.

To answer this question and obtain service-connected disability compensation, a veteran must offer:

  1. A medical diagnosis of a current disability;
  2. Evidence of an in-service occurrence or aggravation of a disease or injury; and
  3. Medical evidence linking the current disability to the in-service event. See, e.g., Caluza v. Brown, 7 Vet. App. 498, 506 (1995).

This guide cannot possibly provide a comprehensive review of each element or commentary on the thousands of applications of this test performed over the years. The body of law is simply too large. That said, there are number of general considerations that apply to all claims before the Department of Veterans Affairs. These include:

  • The VA does not have to diagnose the disability. The diagnosis may come from a private physician, a nurse and, in rare instances, from the veteran herself. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a veteran need not enter the VA medical system to meet the first element.

  • A veteran’s statements concerning the in-service event or experience giving rise to current disability can be sufficient to meet the second element. In accordance with the Veterans Claims Assistance Act of 2000 (the VCAA, which is codified at 38 U.S.C. §5103A), the VA must help the veteran obtain evidence to develop her claim. Moreover, the VA must afford the veteran’s lay statements and other evidence the necessary weight. 38 U.S.C. §7104(a) (2009).

  • With respect to the third element, the VCAA requires that the VA provide a veteran with a medical examination or obtain a medical opinion when it is necessary to adjudicate the veteran’s claim. In addition, there are certain diseases that the VA presumes to be service-connected, meaning that the third element is automatically satisfied. See 38 U.S.C. §1101(3); 38 C.F.R. §3.309(a) (2009).

  • Finally, the veteran only has to offer evidence to show that it is as least as likely as not that her current disability is service-connected as, by statute, she is entitled to the benefit of the doubt. See 38 U.S.C. §5107(b).

Prosecuting a claim for compensation benefits can be confusing and is often very lengthy. Moreover, each case is unique and can only be evaluated after a careful analysis of its facts within the context of the applicable law. Do not be afraid to contact the Department of Veterans Affairs, your local Veterans Service Organization (e.g., American Legion, Disabled American Veterans, etc.) or the National Organization of Veterans' Advocates for assistance.

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