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Updated Dec 21, 2023

In This Section
This section contains the topic “Determining Presumptive SC.”

 1.  Determining Presumptive SC

Introduction
This topic contains information on determining presumptive SC, including

Change Date
December 21, 2023

V.ii.2.B.1.a.  Overview of Presumptive SC
Diseases or conditions subject to presumptive service connection (SC) will be considered to have been incurred in or aggravated by service if manifested to a compensable level, when required by the corresponding regulation or statute, within the time frame specified for that certain disease under the regulation or statute, even if there is no evidence of such disease during service.
Type of Disease or Condition
Reference for Presumption of SC
chronic disease
diseases associated with service of the following categories
  • tropical
  • former prisoner of war
  • exposure to radiation
  • exposure to certain herbicide agents, or
  • exposure to contaminants in the water supply at Camp Lejeune
diseases associated with exposure to ionizing radiation
diseases based on full-body exposure to mustard gas or Lewisite
diseases associated with service in the Southwest Asia theater of operations including
  • undiagnosed illnesses
  • medically unexplained chronic multi-symptom illnesses, and
  • certain infectious diseases
diseases associated with service in Afghanistan
amyotrophic lateral sclerosis (ALS) with at least 90 days of continuous active service
coronavirus disease (COVID-19)
diseases associated with exposure to fine particulate matter
References:  For more information on

V.ii.2.B.1.b.  Considering Presumptive SC for Metastatic Cancer
SC on a presumptive basis for cancer associated with an in-service exposure event may only be established if the cancer in consideration is the primary or originating site of the cancer.  Consider the factors below in determining whether a cancer is primary or metastatic and whether SC may be established.
  • Most pathology reports will indicate if the cancer is primary or metastatic.
  • The diagnosis of cancer in one part of the body, following a diagnosis of cancer in a different part of the body, does not necessarily mean that the cancer diagnosed first has metastasized.  It is possible to have primary cancers in separate areas of the body.
  • If SC is established for a primary cancer that metastasizes into a separate body system, then SC on a secondary basis should be established for the metastasized cancer in the separate body system.
Example:  A Veteran claims SC for lung cancer associated with herbicide exposure.  Pathology reports indicate that the Veteran’s liver cancer metastasized to the lung.  Since liver cancer is not a disability presumptively associated with herbicide exposure, SC for the metastatic lung cancer as due to herbicide exposure is not warranted.
Reference:  For more information on assigning disability evaluations for cancer, see M21-1, Part V, Subpart ii, 3.D.5.a and b.

V.ii.2.B.1.c.  Considering Presumptive SC Under Historical Rating Criteria
Determine whether presumptive SC is warranted by applying the criteria from the version of the rating schedule in effect during the applicable presumptive period.
Example:  A Veteran claims SC for hyperthyroidism on March 22, 2019.  The Veteran was released from active service on September 14, 2015.  Medical evidence shows that in December 2015, the Veteran was diagnosed with hyperthyroidism.  Under the historical rating criteria in effect prior to December 10, 2017, the hyperthyroidism has not been compensable at any point.  Under the current rating criteria, the hyperthyroidism is compensable.
Since the hyperthyroidism was not manifest to a compensable degree in accordance with the historical rating criteria that were in effect in 2015 during the one-year presumptive period following release from active service, presumptive SC is not warranted.

V.ii.2.B.1.d.  Burden of Proof Required to Rebut Presumptive SC
Presumptive SC can be rebutted under 38 CFR 3.307(d).  The medical evidence to rebut the presumption of SC need not be conclusive, but must
  • include
    • affirmative evidence of an intercurrent cause, and
    • sound medical reasoning, and
  • be based on consideration of all evidence of record.
The presumption of SC may not be rebutted using an opinion that
  • does not consider
    • the entire record, and/or
    • relevant evidence that post-dates the opinion
  • has a negative finding of causation with respect to in-service exposure by itself (unaccompanied by medical evidence and sound medical reasoning to support the opinion)
  • identifies an intercurrent cause but does not
    • establish that the intercurrent cause is the sole cause of the disease, to the exclusion of in-service exposure as a contributory cause, or
    • explain why a potentially intercurrent cause makes the presumptive cause of the disability medically unlikely, or
  • relies on the “preponderance of the evidence” to rebut the presumption, as this level of proof is not sufficient to establish affirmative evidence contrary to the presumption.
Note:  As discussed in M21-1, Part V, Subpart ii, 2.E.1.c, genetic test results showing a predisposition to disease are not sufficient to rebut the evidentiary presumption of SC or to sever SC that has already been granted.
References:  For more information on

V.ii.2.B.1.e.  Example of Sufficient Evidence to Rebut Presumptive SC
Situation:  A Veteran with Vietnam service claims SC for lung cancer.  Medical opinion indicates that the lung cancer was metastasized from original stomach cancer.  The opinion is supported by and cites medical evidence indicating the lung cancer originated in the stomach and was not the result of in-service exposures.
Result:  The decision maker determines the evidence is sufficient to rebut the presumption of SC under 38 CFR 3.307.  In arriving at this conclusion, the decision maker finds that the opinion sufficiently and affirmatively identifies an intercurrent cause of the Veteran’s disease, in this case stomach cancer, and also provides a specific negative finding of causation with respect to in service exposures.

V.ii.2.B.1.f.    Example of Insufficient Evidence to Rebut Presumptive SC
Situation:  A Veteran with service in the Korean demilitarized zone during 1968 and 1969 (sufficient to establish exposure to herbicides) claims SC for non-Hodgkin’s lymphoma (NHL).  Medical evidence shows that the Veteran was previously diagnosed with hepatitis B and C.  A bone marrow biopsy was evaluated as suspicious for hepatitis C-related B-cell lymphoma.  Diagnoses of hepatitis C-related B cell lymphoma and Non-Hodgkin’s B cell lymphoma secondary to hepatitis C are shown in the record.
An oncologist opined that the absence of past studies would make determination of the etiology of the disorder impossible but that it was his belief that the evidence suggests that the hepatitis C infection led to the development of the lymphoma.  The oncologist supported the conclusion with citation to medical literature linking hepatitis C and NHL and noted that the appellant’s lymphoma did not manifest until after the diagnosis of hepatitis C.  The oncologist did, however, note that the risk of developing the tumor is greater in those with exposure to Agent Orange, even for those with a normal immune system.
Result:  The decision maker finds that the evidence currently of record is insufficient to rebut the presumption of SC under 38 CFR 3.307.  In arriving at this finding, the decision maker determines that although a negative opinion is present, the additional factors required to rebut the presumption of SC are not present.  The negative opinion is based on the entire record.  However, the evidence does not affirmatively establish that an intercurrent cause is present because the opinion concedes that the in-service exposure is a risk factor for developing NHL and that no testing was done to definitively determine the etiology of the disorder.  Consequently, the opinion does not show that the hepatitis C was the sole cause of the condition nor rule out the exposure as a risk factor or contributory cause.  Additionally, the opinion relies on an incorrect evidentiary standard since the examiner has only opined that the evidence suggests another causation, which does not provide affirmative evidence contrary to the presumption.

V.ii.2.B.1.g.  Establishing Onset During a Required Manifestation Period
Certain presumptive disabilities require onset during a specified time period following specific exposures or military service.  This is known as the manifestation period.  Claims processors must consider all relevant lay and medical evidence to establish onset of a presumptive disability during an applicable manifestation period, and when appropriate, obtain a medical opinion confirming a related diagnosis.
Note:  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when
  • a layperson is competent to identify the medical condition
  • the layperson is reporting a contemporaneous medical diagnosis, or
  • lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.
Example:  A Veteran claims SC for chloracne, which under 38 CFR 3.307 has a manifestation period of one year after the last date of herbicide exposure.  Exposure to herbicides is established as the evidence shows the Veteran served in Vietnam until June 1972.  With his claim, the Veteran submitted a lay statement that he has had skin rashes since returning from Vietnam in 1972.
Result:  A Veteran is competent to describe the presence of a skin rash or other similar symptoms capable of observation without having a medical background.  A Veteran is also competent to describe current symptoms of a disability and describe the date of onset.  Consequently, a medical opinion should be requested to determine if the Veteran has a current diagnosis of chloracne that can be linked to the lay testimony reporting symptoms within the required manifestation period.
Reference:  For more information on