Whenever you see that the VA has denied your claim for a condition preexisting service, you should see a red flag. Often, this decision signals that the VA has made an error in deciding your claim by misapplying the law.
Sometimes, a veteran’s condition is preexisting, and as long as it was not aggravated by the veteran’s time in service, the VA is well within the letter of the law to deny that claim. However, the law is written in favor of granting the benefits and denying for preexisting conditions is not an easy case for the VA to make.
There are two different hurdles that the VA must overcome to deny benefits based upon a preexisting condition. Did you catch them? They are the Presumption of Soundness and the Presumption of Aggravation. So, what are these two presumptions and how do they help you?
The Presumption of Soundness
In the simplest terms, the presumption states that unless the veteran’s entrance examination specifically notes that he has a preexisting condition, then the VA must presume that the veteran did not have the condition prior to service. If the veteran subsequently develops a condition while in service, the VA must presume that the condition is service connected unless it can show evidence otherwise.
Of note, when there is no notation of the preexisting condition on the entrance exam, and subsequent development during service, the veteran is not obligated to provide the origins of the disability. Once the presumption of soundness has attached to the case, the veteran does not need to prove that he was in sound condition. The VA must prove that he was not sound. The law then takes this a step further by requiring that the VA provide “clear and unmistakable” evidence that the condition preexisted service. In other words, there must be no room for debate based on the evidence. If the VA provides evidence that the condition preexisted service, and the veteran can provide competent evidence that it did not, there is room for debate and the evidence is not clear and unmistakable.
As with all rules, there are exceptions, conditions which can be deemed to have preexisted service by their nature. If a veteran was diagnosed with a birth or developmental defect in service, the VA may bypass the presumption of soundness. One common example is personality disorders known to be lifelong conditions.
The Presumption of Aggravation
Your entrance exam does have a notation of a preexisting condition. Are you entirely out of luck? No.
The Presumption of Aggravation also applies to your claim. The VA must now consider whether the preexisting condition was aggravated in service. In service aggravation would mean that the condition, although preexisting, was worsened by the veteran’s military duty. It is presumed that the worsening condition was caused by the veteran’s military service unless there is evidence showing that the condition would have worsened to the same degree no matter the veteran’s circumstances. For example, a veteran who enters service with very mild depression or anxiety, but leaves with a diagnosis of anxiety disorder or major depressive disorder may still be entitled to service connection if there is a medical determination that service caused that either condition to worsen.
Often, the VA fails to apply the law correctly in terms of the presumption of soundness. When you see a denial of a preexisting condition, review the evidence and reasoning the VA used. Is the evidence “clear and unmistakable”? If not, you should appeal the decision. Oftentimes, the VA does not provide the evidence because it there is none to provide, and thus the presumption wins the day.
Thank you for your service and for taking the time to read this blog.
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