In the previous article, favorable presumptions in the veterans claims process were described in detail. These “good” presumptions are prevailing thoughts that actually assist veterans in obtaining the help they need from the VA. Unfortunately, there are unfavorable presumptions just like there are favorable ones, and these can lead to you being denied veterans benefits.
Substance Abuse
If you smoke, drink, or use recreational drugs and it is at all possible to tie your current disability to these habits, the VA will generally strive to do this. For example, if you believe your lung cancer to be service-connected but you have been a smoker most of your life, the VA will use all of the evidence it can to show that your current condition is not due to your service, but rather your habits.
For a free legal consultation, call 800-562-9830
Misconduct
In the same way that substance abuse can lead to denied veterans benefits by allowing the VA to use it to explain your current disability, if your condition resulted from any sort of misconduct on your part, the VA will try to show this in an attempt to deny your claim. Both of these are similar arguments in that the VA is trying to show that your condition is not service-connected. In the case of misconduct, the argument is that your condition did not result from something you were asked to do as a part of your service, even if the actual incident took place during your service.
The Presumption of Regularity
This one is incredibly frustrating, and unfortunately it happens more than it should. As part of the VA claims process, the VA is required to send documentation to vets of any important decisions. Sometimes, however, vets won’t ever get this information, and because of this, they will miss their chance to appeal. If they argue that the VA never sent the information, the VA will counter with the Presumption of Regularity, which basically says that government employees generally do the right thing. What does this mean? Even if there’s zero proof of documentation being mailed, it is presumed that it was sent out, and the veteran loses his or her argument. The only way to win in this instance is if the vet can show that there are records of the paperwork being mailed to the wrong address. Worse, there appears to be a movement growing from the VA General Counsel and Veterans Court judges to widen the Presumption of Regularity to cover more VA activities. One such suggestion argues that it should be “presumed” that VA medical examiners are competent, which would make it more difficult to overturn a veterans claim denial with outside medical evidence.
As you can see, the process is fraught with peril for those who go into it without knowing all of the rules and potential ways the VA can deny you benefits. If you find yourself struggling with the veterans claims process, it is in your best interest to talk to a veterans disability attorney.
Call or text 800-562-9830 or complete a Free Case Evaluation form
