All Possible Theories for Qualifying Must Be Considered
Individuals claiming veteran, dependent, or survivor status are always entitled to the benefit of the doubt when attempting to prove their status. This means that if there is “an approximate” balance of positive and negative evidence” on the issue than the issue is decided in the veteran’s favor. It is analogous to a tie going to the runner in baseball. The claimant is still responsible for presenting evidence. This is done by presenting service department records.
What documents may be submitted to prove service?
The VA may accept a service department document as evidence of service or character of discharge if the document meets any of the following criteria:
- An original service department document;
- A copy issued by the service department with certification that it is a true and exact copy of the original; or
- A copy submitted by an accredited agent, attorney, or service organization representative with special training who certifies that it is a copy of an original service department document or a copy of a copy of such a document.
In addition to meeting one of the above requirements, the document must contain the needed information as to length, time, and character of service. The VA must also believe the document is genuine and accurate. If the above criteria are satisfied then the VA is bound by the document.
The VA has a duty to assist applicant. This means that if applicant does not submit the proper documentation or the evidence submitted does not meet the requirements then the VA must verify service directly with the service department. The VA must then consider all procurable and assembled data, including lay evidence. If new data is submitted by the individual than the VA must re-request verification based upon the new data.
When the service department indicates “active duty” the VA retains the authority to interpret what “active duty” meant. The VA can find that service designated “active duty” by a service department was not in fact “active duty” when the individual was not under military control during the time period in question.
Other Basic Eligibility Considerations
Wartime vs. Peacetime Service
For most VA benefits, id does not matter when a veteran was in active military service. However, to be eligible for a VA pension only veterans with service during a period of war are eligible for non-service connected disability pension. If a veteran served during a time of war, it is not necessary that the veteran serve in a combat zone. Congress designates periods of war.
Length of Service
If a veteran’s service began after September, 1980 then the length of time spent in active military service can also affect some VA benefits such as pension, health care, and education benefits. If you began your service before September, 1980 then you can skip this section. Length of service requirements do not apply to some common VA benefits, such as service-connected disability and death benefits.
Common benefits that require length of service include health care and non-service connected disability pension. People who enlisted after September, 1980 are required to complete a minimum period – either 24 months of continuous active duty or the “full period for which [the veteran] was called to active duty.”
Length of service requirements do not apply if you are discharged before fulfillment because of hardship or a specified early discharge, or due to a service-related disability.
Remember, even if your full-term was less than 24 months, if you completed your full-term you do not have to satisfy the 24 month requirement for eligibility.
Benefits are barred if an injury, disease, or death based upon “willful misconduct.” However, veterans may receive an extension of time for using education or vocational rehabilitation if they are suffering disabling effects of chronic alcoholism.
There is a presumption that an injury or death suffered during active military service is incurred in the line of duty and not the result of “willful misconduct.” The presumption can be overcome if the VA establishes by a “preponderance of the evidence” that you engaged in willful misconduct and that such misconduct caused the injuries or death.
Willful misconduct is “an act involving conscious wrongdoing or known prohibited action.” It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.” A mere technical violation of a regulation is not necessarily willful misconduct. Examples include alcohol abuse, drug abuse, contracting venereal disease, and suicide.
Alcohol and Drug Addiction
Occasional alcohol or drug use will not disqualify a person unless the alcohol or drug use leads to death. Repeated use or extreme use will disqualify a person. The VA distinguishes between using a prescription drug for the intended purpose and using illegal drugs, drugs for enjoyment or intoxication, and illegally obtained drugs even if the drug is a prescription drug. A veteran addicted to a legal drug such as a pain reliever may still qualify for benefits.
The VA also distinguished between whether alcohol or drug addiction arose from “primary abuse” or willful and voluntary abuse as compared to alcohol and drug disabilities that are “secondary” or aggravated by another service related condition. Primary abuse and conditions that arise from primary abuse are not compensable, but secondary abuse is compensable. For example, a person who drinks alcohol because of service related PTSD may be compensated if they get disabling cirrhosis of the liver.
Venereal is not considered willful misconduct and it may be compensable. However, if the initial venereal disease began before service then it is not considered service related.
Suicide is case dependent. A surviving dependent may receive benefits if the suicide is not considered “willful misconduct.” This requires proving that the veteran was “of unsound mind” at the time of the suicide and that the “unsound mind” was the result of a service-connected condition. A suicide is only considered willful misconduct when the act was intentional. If there is no reasonable adequate motive for the suicide, the VA will consider the suicide to have resulted from “unsound mind.” Mental unsoundness still needs to be the result of a service connected disability. For example, suicide sometimes results from service connected PTSD.