Throughout the course of your VA claim, you may have heard of the concepts of the presumption of aggravation and the presumption of soundness. Today we are going to discuss what these presumptions are and how understanding them can help your claim. The presumption of soundness is an important concept to keep in mind when it comes to establishing service connection for a disability that was incurred or aggravated in service. Basically, the presumption means that the VA cannot deny a claim simply because it believes that a veteran’s disability existed before service. The presumption of soundness is detailed in 38 U.S.C. 1111, which states: “For the purposes of section 1110 of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.”
What this means is that when there is no pre-existing disability noted in the veteran’s entrance exam, the presumption is that the veteran was sound when he or she entered service, and the VA can only rebut that presumption by clear and unmistakable evidence that the condition pre-existed service and that it was not aggravated by service. The burden here is on the VA, and the veteran does not need to submit any evidence to support the contention that the disability did not pre-exist service, but additional evidence is usually going to be helpful, as described below. Also note that if the VA is unable to locate the veteran’s entrance medical exam records, or is only able to locate partial records and those records do not note the claimed disability, then the presumption still applies.
“Clear and unmistakable” evidence that a disability existed before service means that it must be undebatable after a review of all the evidence. This is a very high standard for the VA to meet. The VA is required to consider the veteran’s history and all other material evidence, including medical judgments, accepted medical principles, and clinical factors. But also note that for certain diseases, no additional evidence is needed due to the medical principles related to the disease, such as a tropical disease that has a specific incubation period. If such a disease were to manifest symptoms in a veteran after he or she reported to duty in less time than the incubation period for the disease, the disease had to have pre-existed service.
Even if the VA is able to prove by clear and unmistakable evidence that a disability existed before service, it still must prove, again, by clear and unmistakable evidence, that the preexisting disability was not aggravated by service. The VA must show that there was no increase in disability during service or that any increase that did occur was due to the natural progression of the disability. This requires clear medical evidence. Note that the veteran is not required to show an increase in the disability during service – the burden is on the VA to prove that the disability was not aggravated. But, if the veteran does have evidence that the disability was aggravated, then that evidence should be submitted to the VA in order to make the VA’s task of proving non-aggravation more difficult. A medical opinion from an independent medical examination would be helpful in showing that the stress of military service aggravated the disability or cause the disability to increase in severity faster than the normal progression of the disease.
Remember that this is only part of the equation for service connection. If the VA is not able to rebut the presumption of soundness, the veteran still must be able to prove the two other elements of service connection – that he or she has a current disability and that a nexus exists between the current disability and the injury or disease in service.
If the presumption of soundness does not apply to your case, the presumption of aggravation might apply instead. The presumption of aggravation is found in 38 U.S.C. 1153, which states: “A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.”
The presumption of aggravation applies only during active service, so it does not apply if a veteran’s pre-existing condition is aggravated during active duty for training or inactive duty for training. Unlike the presumption of soundness where the burden of proof is on the VA, for the presumption of aggravation to apply, the veteran must submit evidence of an increase in disability. But note, the veteran does not need to prove that a specific incident in service cause the increase – all that is required is evidence that the disability worsened during a period of active military service. Also, the increase in disability needs to be more than a temporary worsening or flare-up, but it is not required that the increase be enough to warrant that the condition be given a higher evaluation on the VA disability rating schedule. The key is that the increase is not temporary, and is related the underlying condition itself. This requires clear, competent medical evidence. The best type of evidence is documentation of an increase in the disability in the veteran’s service medical records. Another method is to compare the severity of the condition before service with the severity of the condition shortly after service. If the veteran was treated by a private physician for the condition, that will be helpful evidence as well. In addition, lay statements from friends or family who were around the veteran and observed the increase in disability can be useful evidence. But again, medical evidence is the most important evidence in claims involving the aggravation of a pre-existing disability.
If a veteran is able to demonstrate that a pre-existing disability permanently increased in severity during active service, the disability is presumed to have been aggravated by service and no further evidence from the veteran is required. The VA is able to rebut the presumption of aggravation with clear and unmistakable evidence that the increase in disability was due to the natural progression of the disease. While the veteran is not required to submit additional evidence that the condition was aggravated by service, it may be a good idea for the veteran to get an independent medical opinion that states that something during military service caused the increase in disability, not the natural progression of the disease.
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