38 Usc 1154 ( B )

[deltaj]

Could someone put up a link to 38 USC 1154? This law is one which V.A. seems to disregard often. In section ( b ) of 38 USC 1154, V.A. is supposed to service connect conditions for veterans who have engaged in combat with the enemy. I believe that V.A. considered this law when V.A. granted my father service connection for a hearing loss from WWII. Dad's records had burned in the fire at the National Personnel Records Center but he submitted a copy of his DD214 Army discharge showing he had been stationed in Italy, Belgium, and North Africa during WWII and had 2 bronze stars. My dad also submitted a statement explaining that he served in the tank corps in North Africa and that his service-connected hearing loss was so severe that he was offered hearing aids when he was discharged from the Army. THE LESSON HERE FOLKS IS THAT IF YOU KNOW A VETERAN WHOSE RECORDS BURNED IN THE FIRE AT THE NATIONAL PERSONNEL RECORDS CENTER IN 1972, AND THAT VETERAN STILL HAVE HIS DD214 MILITARY DISCHARGE SHOWING COMBAT THAT VETERAN SHOULD TALK TO A SERVICE OFFICER ABOUT 38 USC 1154 AND WHETHER HE SHOULD FILE A NEW CLAIM FOR SERVICE CONNECTION OR SHOULD TRY TO REOPEN HIS PRIOR DENIED CLAIM FOR SERVICE CONNECTION BASED ON NEW AND MATERIAL EVIDENCE INCLUDING A COPY OF HIS DISCHARGE AND A SIGNED STATEMENT FROM THE VETERAN ABOUT HIS EXPERIENCE WITH COMBAT AND HOW HIS DISABIITY WAS INCURRED OR AGGRAVATED BY MILITARY SERVICE.

Edited October 25, 2009 by deltaj

[Berta]

This fairly recent BVA award also reflects the VA's latest take on "combat"

http://www4.va.gov/vetapp09/files4/0934965.txt In part: "The only remaining questions in this case are whether the evidence supports a finding that the Veteran engaged in combat, or whether there is credible supporting evidence that the claimed stressors occurred. The Veteran reported in his August 2006 claim and during the March 2009 hearing that he served as a CH-47 helicopter mechanic and crew chief with the 228th Aviation Company, 1st Cavalry and that, during this service, his helicopter came under attack while he was on a mission to recover a downed helicopter, he engaged in firefights with the enemy using an M-60 machine gun while performing his duties as a door gunner aboard helicopters, and he came under mortar fire while stationed in tents. Also, in a December 2006 written statement (VA Form 21-0781), the Veteran stated that his helicopter received small arms fire from the tree line while it was sling loading water buffalo. The Veteran's service personnel records confirm that he served as a CH-47 helicopter repairman and crew chief with the 228th Aviation Batallion, 1st Cavalry Division and that the Veteran participated in Phase VII of the Vietnam Counter- Offensive. He received the Bronze Star Medal for meritorious service in connection with ground operations against a hostile enemy force, the Army Commendation Medal for meritorious achievement in connection with military operations against a hostile enemy force, and the Air Medal for meritorious achievement while participating in aerial flight. Furthermore, the Veteran received the National Defense Service Medal, the Vietnamese Service Medal, the Vietnam Campaign Medal with 60 Device, and Overseas Service Bars. A determination that a Veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. VAOPGCPREC 12-99 (1999). Evidence submitted to support a claim that a Veteran engaged in combat may include the Veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The Court has held that receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). However, the fact that the Veteran engaged in a particular military operation does not, by itself, establish that the Veteran engaged in combat. VAOPGCPREC 12-99 (1999). Here, given the consistency of the Veteran's testimony with the other evidence in the claims file, the unit with which he served, the operations in which he participated while in Vietnam, and the commendations that he received for such service, resolution of reasonable doubt in the Veteran's favor warrants the conclusion that he engaged in combat. See 38 U.S.C.A. § 5107(B); see also Gilbert v. Derwinski, 1 Vet. App. at 55-56. As the Veteran engaged in combat and has been diagnosed with PTSD based on his claimed combat stressors, the criteria for service connection are met. 38 C.F.R. § 3.304(f)(1)."

Also- if JSRRC cannot verify combat participation information that a veteran believes will help their claim- in my opinion the veteran should contact JSRRC themselves.

I often wonder when the VA says JSRRC could not verify a stressor event-whether VA really asked them to.

Sprt of like when VA says records were lost in the ST Louis fire and then the vet obtains the lost and burned records themselves.

[Wings]

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38 USC 1154 (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.

Updates to this section of the United States Code http://www.law.cornell.edu/uscode/HowCurre...09:26:05%202009