The Presumption of Soundness is a VA construct that is important for everyone seeking benefits to keep in mind when attempting to establish service connection for a disability.
In essence, the presumption states that the VA cannot simply deny a claim because it believes that a veteran’s disability pre-dated his service. The Presumption of Soundness is explained 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, or 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 that means is when there is no pre-existing condition 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 the presumption by clear and unmistakable evidence that the condition pre-existed service and that it was not aggravated by service. This puts the burden on squarely on the VA, and the veteran is not required to submit any evidence in support of his contention that the condition did not pre-exist service. However, there are times when the submission of additional evidence will be helpful. Please note that if the VA cannot find the veteran’s entrance exam or only find partial records, and those records do not list the condition, then the presumption still applies.
Additionally, in a recent court decision, McKinney v. McDonald, the Court of Appeals for Veterans’ Claims has defined the “pre-existing condition” to mean a compensable disability under the VA’s regulations. The majority in the case concluded that a “defect” noted on a veteran’s entrance exam would be determined by whether or not disability compensation benefits would have been available for the condition the veteran seeks to service connect in the present. To rephrase, the veteran is entitled to the presumption of soundness so long as the notation of a “defect” in his entrance exam does not show the “defect” to be a compensable condition under the VA’s regulations.
Clear and Unmistakable Evidence
“Clear and unmistakable” evidence that a disability existed before service means that the evidence must be undebatable following review. The VA is required to consider the veteran’s history and all other material evidence, including medical judgments, accepted medical principles and clinical factors. The VA must also obtain a medical opinion. For certain diseases, no additional evidence is needed due to medical principles surrounding the disease. One such type of disease is a tropical disease with a specific incubation period. If such a disease manifests symptoms after a veteran has reported to duty, but in less time than the incubation period requires, the disease must have pre-existed duty.
It is important to remember that even if the VA does succeed in proving that a disability pre-existed service, it must still prove by clear and unmistakable evidence that the disability was not exacerbated by service, the presumption of aggravation. This means the VA must show that there was no increase in the pre-existing disability during service and that any increase in the disability during service was the result of the natural progression of the disease. Again, the veteran is not required to submit evidence to prove that his disability was aggravated by service. The burden is on the VA to prove no aggravation occurred. However, if the veteran has evidence showing aggravation, it may be a good idea to submit such evidence to increase the VA’s burden in disproving aggravation. This is a time in which submitting an independent doctor’s medical opinion can be extremely helpful. If the doctor can show that stress of military service increased the progression of the disability or that it aggravate the condition, this shifts the scales further in the veteran’s favor.
Please remember that the Presumption of Soundness is only part of the equation in your claim for disability. After the VA has failed to rebut the presumption, the veteran must still prove the other elements of service connection. In other words, the veteran must still show that he or she has a current disability, and that there is a nexus between his current condition and the in service injury or disease.
