Thursday, November 1, 2012

Presumption afforded combat veterans

For combat veterans’ service-connection claims, VA is required to presume in-service incurrence of disease or injury – not just that the alleged in-service event or exposure occurred.  Reeves v. Shinseki, docket no. 2011-7085 (Fed. Cir. June 14, 2012).  In this case, the surviving spouse of a World War II combat veteran asserted that (1) the veteran suffered acoustic trauma in service and (2) this noise exposure resulted in hearing loss while in service.  The evidence he submitted included documentation that he worked as a heavy mortar crewman in service; statements from himself, his wife, his fellow service-members regarding in-service exposure and hearing loss; and a letter from his doctor stating that he diagnosed hearing loss in 1962 and attributed it to in-service noise exposure.  Although VA presumed that the veteran experienced in-service noise exposure based on his status as a combat veteran, VA denied service connection because the first medical documentation of hearing loss was “too remote” from his active service.

The Federal Circuit held that VA was required to apply the presumption of section 1154(b) to the questions of whether (1) the veteran experienced acoustic trauma in service and (2) he suffered permanent hearing loss while on active duty.  The court found that even though “the record contained evidence of the cause of [the veteran’s] disability . . . , he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service.” 

(posted to July 2012)

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