The Statements of a combat vet about circumstances in combat

In my last post I touched briefly on the idea of a combat vet's statement being important in preparing for and prosecuting a successful claim for compensation. This is true relative to claims for PTSD, but not exclusive to claims for PTSD. A combat veteran's statement regarding something that occured in combat--as long as the statement is consistent with where, when, and other circumstances of service--will be accepted as sufficient for the purpose of establishing the in-service incurrance of the condition(s). Here is a cite to Section 1154(b) of Title 38 United States Code ( Title 38 USC comprise laws administered by VA): § 1154. Consideration to be accorded time, place, and circumstances of service (b) In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. Credits (Sept. 2, 1958, P. L. 85-857, § 1, 72 Stat. 1124; Sept. 30, 1976, P. L. 94-433, Title IV, § 404(20), 90 Stat. 1379; Oct. 24, 1984, P. L. 98-542, § 4, 98 Stat. 2727; June 13, 1991, P. L. 102-54, § 14(b)(1), 105 Stat. 283; Aug. 6, 1991, P. L. 102-83, §§ 4(b)(1), 5(a), 105 Stat. 404, 406.) In Collette, the Federal Circuit stated that the inquiry of whether the veteran submitted "satisfactory" evidence "requires a determination as to the credibility of the veteran's evidence standing alone, not a weighing of the veteran's evidence with contrary evidence." The U.S Court of Appeals for Veterans Claims and the Federal Circuit interpret satisfactory to mean credible, plausible, or capable of being believed. In the Caluza case, the U.S Court of Appeals for Veterans Claims explained some principles that apply to the requirement that the veteran's lay evidence be consistent with the circumstances of service: • A medical record, whether generated during or after service, should generally not be reviewed by the VA to determine whether the veteran's statements are consistent with the circumstances of service, unless it affirmatively shows that the veteran's evidence is not consistent with the circumstances of his service. • In determining whether the veteran's statements are consistent with the circumstances of his service, reasonable doubt will be resolved in the favor of the veteran where the evidence is in equipoise. When a combat veteran's evidence meets the two requirements described above, the VA must accept the combat veteran's evidence as showing in-service occurrence, unless the record contains clear and convincing evidence against service incurrence or aggravation. This piece of the law is greatly empowering to a combat vet! Example: a combat vet is on patrol, carrying his ruck sack, ammunition, weapon, etc. and comes upon a small stream that he must cross. It appears that the ground on the far side is stable and a good place to land following his jump across. He jumps and lands, not on solid ground, but in muck into which he sinks almost to the knee--he and all his gear rotate a bit on landing, but his foot and leg remain stationary in the muck. He experiences some pain in his knee and his low back, but, after his buds help extract him from the muck, he continues on--he doesn't whine about his pain. No record is created relative to this incident--there are no stenographers following this combat unit around! Later, following separation, he continues to have some discomfort and stiffness with his back and oain in his injured knee. He applies for compensation for both conditions, but VA denies his claim because there is no mention of the injury in service, or at the separation exam. This is where the value of Section 1154(b) applies. The vet can, after denial and without entering into an appeal, prepare a statement about the circumstances of the injuries and cite 1154(b). Here is an example of how this might be communicated (keep a copy!): _______________________________________________________________________________ February 3, 2010 U.S. Department of Veterans Affairs Regional Office 477 Michigan Avenue Detroit, MI 48226 RE: your full name; VA claim number Dear Sir or Madam, I invite you to review my statement in light of 38 CFR 3.304(d). This regulation is derived from Title 38 USC section 1154(b) and lightens the burden with respect to disabilities alleged to be the result of combat service. See Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). It is my understanding that § 1154(b) states that: “…the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.” I request that you consider whether my statement, when considered alone, is satisfactory. Toward this end I ask that you determine whether my statement is credible and consistent with the circumstances, conditions, or hardships of my active duty combat service. If my statement satisfies these requirements, a factual presumption arises that my PTSD condition was incurred or aggravated during service. See M21-1, Part VI, 7.03(b), “Disabilities Related To Combat”. Thank you for your attention to this matter. Sincerely, your full name your address ______________________________________________________________________________ Remember--this applies to any injury or disease process that has its inception during a combat circumstance. Two important questions arise: who is a combatant and what is a combat circumstance? VA, DOD, The US Court of Appeals For Veterans Claims, The Court for the Federal Circuit have not given guidance about what is combat. So, common sense prevails--hopefully. The evidence as to whether an individual is a combat vet may include: Awards/Decorations for combat activity, i.e., Combat Infantryman's Badge, a Star for valor, Purple Heart, Combat Action Medal, statement from vet corroborated by an individual who witnessed the combat circumstance--exposure to incoming enemy fire (small arms, mortar, rocket fire, IEd, etc.), or outgoing fire directed toward a known enemy. Common sense would accept that if you are fired upon, or engage the enemy with weapons fire, you are a combatant--even if you have not received that above awards/decorations. Go figure. We can always revisit this issue if there is sufficient interest expressed. Please forgive any crummy spelling and/or grammar. More to come. Sua Sponte