What to Do when the VA Argues that a Condition Preexisted Service

Military Fatigues Flag Dog TagsThe Presumption of Sound Condition is a powerful doctrine when used appropriately.  It can force the VA to accept that the Veteran entered military service in sound condition and is only rebuttable by Clear and Unmistakable Evidence – a high threshold to pass.

38 U.S.C. § 1111 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.

It is important to understand that in order for this presumption to apply, a Veteran must have been examined, accepted, and enrolled for service.  For most Veterans, examination, acceptance, and enrollment for service formally took place at a Military Entrance Processing Station (MEPS).  If there was no examination, there is no presumption.  Recently with the operations in Iraq and Afghanistan, National Guardsmen and Reservists were called to active duty but not given a formal service entrance examination.  In this case, the pre-deployment examination should be used.  A Veteran can rely on the presumption if an examination did take place but the VA either cannot find the records[1] or can only find partial records and there is no note of the condition.

38 U.S.C. §1111 specifically states that the “defects, infirmities, or disorders” must be “noted at the time of the examination, acceptance and enrollment” (emphasis added).  38 C.F.R. § 3.304(b) further clarifies this requirement by stating “[o]nly such conditions as are recorded in examination reports are to be considered as noted.”  Because of this narrow scope, the key to the Presumption of Sound Condition is usually found in the written entrance examination report generated at MEPS.  The condition must be either shown on the examination or physically observed by the examiner in order to be considered noted.  Notes on an entering soldier’s medical history alone, even if by the examining physician, may not be considered noted.  In Crowe v. Brown,[2] the Court held that the examining physician’s notes that the soldier had a childhood history of asthma did not cancel the Presumption of Sound Condition because the physician did not report the presence of asthma at the time of the actual examination.[3]

If a Veteran was properly examined, accepted, and enrolled for service and no defects, infirmities, or disorders were noted at the time, the VA must show “clear and unmistakable evidence” that “the injury or disease existed before acceptance and enrollment and was not aggravated by such service” (emphases added).  Clear and unmistakable evidence means that the condition existing prior to service must be “undebatable” and that “reasonable minds could only conclude” its preexistence.[4]  The fact that the VA must show both that the condition existed prior to service and that it was not aggravated during service makes this clear and unmistakable threshold even more difficult to cross.  38 C.F.R. § 3.303(c) grants certain conditions that appear to manifest first while in service an automatic finding of clear and mistakable evidence that the condition preexisted service.  Some of the conditions listed are congenital or development defects, personality disorders, and chronic conditions that appear so close to the soldier’s entrance that they had to commence pre-service.  In order to find that the Presumption has been rebutted, the VA must obtain a medical opinion with a high degree of medical certainty.[5]

What this all means for the Veteran is that he or she can point to an entrance examination in which a knee condition is not noted in order to cancel most VA arguments that his or her knee condition was a preexisting condition.  This also means that if a Veteran signs a statement that he or she had knee issues prior to joining the military during a moment of truth prior to basic training, the VA cannot use that statement to show a preexisting condition.

[1] Quirin, 22 Vet. App at 396, fn. 5.

[2] Crowe v. Brown, 7 Vet. App. 238 (1994).

[3] Id at 245.

[4] Vanerson v. West, 12 Vet. App. 254, 258-59 (1999).

[5] Quirin, 22 Vet. App. At 395; Adams v. West, 13 Vet. App. At 453, aff’d, 256 F.3d 1318 (Fed. Cir. 2001).

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