VA PRESUMPTIONS ARE REBUTTABLE
All VA presumptions are rebuttable. For example: VA may rebut presumption of sound condition under 38 U.S.C. 1111 with clear and unmistakable evidence that demonstrates both the injury or disease existed before entry into service and the disease or injury was not aggravated by service; and VA can rebut presumption under under 38 U.S.C. 1154(b) with clear and convincing evidence to the contrary.
The statute that authorizes VA to service-connect diseases based on exposure to agent orange is 38 U.S.C. 1113 and 38 C.F.R. 3.307. This statue states service connection by presumption will not be allowed "[w]here there is "affirmative evidence to the contrary, or evidence to establish that an intercurrent injury or disease which is a recognized cause of any of the diseases or disabilities... has been suffered between the date of separation from service and the onset of any such disease, or the disability is due to the vet's own willful misconduct." In the past VA rarely used affirmative evidence to the contrary as a defense when adjudicating claims based on exposure to agent orange in Vietnam.
Douglas v. Shinseki. 23 Vet. App. 19 (2009) Vietnam vet sought service connection for diabetes mellitus - a condition presumed service connected in Vietnam vets under Agent Orange rules. Unfortunately for the claim, vet's medical records suggested alternate cause for diabetes mellitus. Vet had for years taken medication for separate non-service-connected disease and that medication itself is known to cause diabetes mellitus. VA obtained 2 endocrinologist opinions that said it was more likely than not that the vet's diabetes mellitus had been caused by long-term use of medication. The Board of Veterans Appeals (BVA or Board) found legal presumption of service connection had been rebutted by affirmative evidence to the contrary and denied claim.
Douglas v. Shinseki. 23 Vet. App. 19 (2009) Veterans Court affirmed Board's decision finding "that the Secretary's authority to develop a claim necessarily includes the authority to collect and develop evidence that might rebut the presumption of service connection." Also, Vietnam vets who develop one of the cancers linked to agent orange may be denied disability compensation if the cancer on the list developed as a result of, or was caused by, a cancer not on the list. U.S. Court of Appeals for Veterans Claims has ruled that if a Vietnam vet first develops a cancer that is not on the list, like colon cancer, and that cancer later spreads (in medical language, "metastasizes") to another part or organ of body so that the vet then has a cancer on the list, (such as lung cancer), VA is not required to grant claim under Agent Orange regulations
Implementing VA regulation, 38 C.F.R. 3.307(d) states : Evidence which may be considered in rebuttal of service incurrence of a disease listed in 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in consideration of all evidence of record, support conclusion the disease was not incurred in service.
Advice VA will not likely undertake development to rebut presumption unless evidence of record suggests disease was caused by something other than Agent Orange exposure. Therefore, advocates should carefully review vets' private medical records and generally avoid submitting to VA any evidence indicating a disease presumptively linked to Agent Orange exposure may have another cause.