Presumptive Within One Year

[iraqrecall]

Ok maybe I am just dumb but heres my question.

If a disability is claimed with in one year of discharge is it considered presumptive?

I have had some medical problems arise after discharge but prior to one year but have been denied because of no nexus in my active duty medical records.

[carlie]

iraqrecall,

http://edocket.access.gpo.gov/cfr_2009/jul.../38cfr3.400.pdf

38 CFR

EFFECTIVE DATES

§ 3.400 General.

(ii) Presumptive service connection (§§3.307, 3.308, 3.309). Date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later.

Where the requirements for service connection are met during service, the effective date will be the day following separation from service if there was continuous active service following the period of service on which the presump- tion is based and a claim is received within 1 year after separation from active duty.

Also study 3.307, 3.308 and 3.309

http://edocket.access.gpo.gov/cfr_2009/jul.../38cfr3.307.pdf

Hope this helps a vet.

carlie

[iraqrecall]

iraqrecall,

http://edocket.access.gpo.gov/cfr_2009/jul.../38cfr3.400.pdf

38 CFR

EFFECTIVE DATES

§ 3.400 General.

(ii) Presumptive service connection (§§3.307, 3.308, 3.309). Date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later.

Where the requirements for service connection are met during service, the effective date will be the day following separation from service if there was continuous active service following the period of service on which the presump- tion is based and a claim is received within 1 year after separation from active duty.

Also study 3.307, 3.308 and 3.309

http://edocket.access.gpo.gov/cfr_2009/jul.../38cfr3.307.pdf

Hope this helps a vet.

carlie

Thanks! I think that says yes so will have to do a NOD>

[pilgrim01]

I thought presumptive only applied to certain conditions, like arthritis, hypertension, etc.?

[john999]

I filed for a MH condition within one year of discharge. My effective date was the day after I was discharged. That is how it works, and that is why you want to make your claims within a year after discharge. You might not win your claim for five years but it goes back to day after discharge.

[Berta]

There are different types of service connection by presumption.

The list of chronic diseases,which are manifested to at least 10% disabling within one year after service, are found within 38 USC1101 (3) or 38 CFR 3.309(a)/

Multiple Sclerosis however has a seven year presumptive period and I believe TB residulas has a 3 year window-need to check that-

also AO is presmptive of course with in most cases (but not all) with no time limits for most AO presumptive disabilities.

Certain tropical disablities, POW disabilities from captivity,certain mustrard gas and Lewisite disabilities, some radiation disabilites and some Persian Gulf War disabilities can be awarded service connection due to legal presumption.

But any chronic disablity that is not on the chronic presumptive list above can also be service connected with strong medical evidence of the nexus to service by proving manifestation to at least 10% of the disability within one year after service.The SMRS would also possible reveal symptoms that were documented but not diagnosed during service.

Chronic is the key word on these types of chronic presumptives in 38 CFR 3.309.

[carlie]

I filed for a MH condition within one year of discharge. My effective date was the day after I was discharged. That is how it works, and that is why you want to make your claims within a year after discharge. You might not win your claim for five years but it goes back to day after discharge.

It will only go back to day following separation if it is continually prosecuted.

Example:

Date of Discharge: Jan 1, 1990.

Date claim is filed for condition X : March 1, 1990.

Rating Decision dated : May 1, 1990 - denies SC for condition X.

Claimant never files a NOD.

Rating Decision for condition X (denial) becomes final on May 1, 1991.

Veteran submits a request to reopen claim for condition X on Feb 1, 1992.

On March 1, 1992, Va responds : The Rating Decision dated May 1,1990 has become final.

You may re-open the claim for condition X, by submitting New and Material Evidence.

On March 10, 1992 the veteran submits New and Material Evidence that is dated Feb 1, 1992,

for condition X that is both probative and credible.

Rating Decision dated : Oct 1, 1993 states,

Service connection for condition X has been granted with an evaluation of 10 percent.

An effective date of Feb 1,1992 has been assigned as this is the date of your request to

re-open the claim for condition X.

This is the way I understand the regs (38 CFR 3.400) for General - Effective Dates.

jmho,

carlie