The Presumption of Soundness
The presumption of soundness is a VA disability concept applicable to claims for service connection. However, this presumption is not applicable in every case.
What Is the Presumption of Soundness?
The presumption of soundness, found at 38 U.S.C. § 1111, states that “every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service” except when a defect, illness, or disorder is noted on the veteran’s entrance exam, or “where clear and unmistakable evidence demonstrates that the injury or diseases existed before acceptance and enrollment and was not aggravated by such service.”
Each service member must go through a military entrance examination to determine if they are fit for service. This exam typically includes a physical examination and requires information on a service member’s medical history. The presumption of soundness essentially states that, except when there is clear and unmistakable evidence to the contrary, or a condition is noted on a veteran’s entrance exam, a veteran is presumed to be healthy upon entering service. This concept can come in handy if VA denies a claim for service connection on the grounds that a veteran’s condition predates service, and therefore was not caused by service.
An important thing to note is the burden is on VA to rebut the presumption of soundness; the burden is not on the veteran to prove that they were considered sound on entry into service. “Clear and unmistakable evidence” is a high standard for VA to prove that a veteran’s condition predated service. Clear and unmistakable evidence must be undebatable and is one of the highest legal standards.
Presumption of Soundness and Aggravation
When it comes to the presumption of soundness, VA not only has to show that a veteran’s condition predated service, but it must also show that if the condition did exist prior to service, it was not then aggravated by military service. VA must show this by using clear and unmistakable evidence, which is a high burden for VA.
Common VA Mistakes for the Presumption of Soundness
The presumption of soundness frequently comes up when VA denies a veteran service connection for a condition on the basis that either the condition predated service, or was caused by an event prior to service. However, if there is no clear and unmistakable evidence that the veteran’s condition predated service and there is no evidence of the condition on the veteran’s entrance exam, then the veteran should be afforded the presumption of soundness.
- CCK Successfully Argues for Reversal of the Board’s Presumption of Soundness Determination
- Board Incorrectly Applied Presumption of Soundness When Denying Service Connection for Respiratory Disability Other Than Pneumonia
- Board Misapplied the Law Regarding Presumption of Soundness When Denying Veteran’s CUE Claim
- CCK Argues the Board Erred in Determining the Presumption of Soundness was Rebutted
- The Elements of Service Connection
- Secondary Service Connection & Aggravation
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