Presumption of Soundness & of Aggravation

VA’S PRESUMPTION OF SOUNDNESS & PRESUMPTION OF AGGRAVATION

HOW THEY WORK AND WHAT TO LOOK FOR

VA disability law provides for many presumptions, and two in particular, are prevalent in VA adjudication: the presumption of soundness and the presumption of aggravation. When they apply, these presumptions give Veterans a significant advantage in proving their service-connected disability claims.

1) The Presumption of Soundness

Proving a service-connected claim often comes down to proof that the alleged disability did not exist prior to service. This means establishing the absence of a diagnosis or symptoms of the alleged service-connected disability prior to service. Remember that to prove a service-connected disability claim, Veterans must show that the disability either first manifested symptoms in service, or that the disability was caused by a service-related incident or exposure. That is where the presumption of soundness comes into play. The presumption of soundness, so-called because the Veteran’s health is presumed sound or in good health upon enlistment, can satisfy this element of the disability claim. Whether the presumption should apply depends upon what is noted in the Veteran’s induction examination.

So, what is an induction examination? Every service member undergoes an examination prior to their official induction into military service. During these cursory examinations, the examiner takes a history of any current physical and/or mental illnesses, disabilities, or defects and notes them, if any, in the induction examination report. When a Veteran later files a claim for service-connected disability, this report becomes relevant in determining whether the alleged disability pre-existed service.

If the induction examination report does not note any relevant disability or injury (i.e., disability or symptoms related to the claimed disability), then the presumption of soundness applies, and the VA adjudicator must find that the alleged disability or injury did not exist prior to service, unless documentation in the claims file shows that it did by clear and unmistakable evidence, thereby rebutting the presumption.

Moreover, even if the induction examination report notes a relevant disability or symptom, this note must indicate that the pre-existing disability or symptom was current at the time of induction. Let’s take a real case example. In Crowe v. Brown, 7 Vet. App. 238 (1994), the Veteran filed a claim for service-connected asthma. The Veteran’s induction examination noted a history of asthma when he was a child, but there was no evidence of recurrence of the condition. The Veterans Court held that the notation of an 18-year-old condition was insufficient to rebut the presumption of soundness:

The record does not contain a medical opinion addressing the relevant medical question -- namely, does a childhood history of swollen neck glands, a cough, and some throat difficulty, in the absence of any medical records showing treatment for, or a diagnosis of, asthma during the Veteran's first 18 years, conclusively establish that the Veteran had asthma at entry into service in 1958?
Id. at 246.

2) The Presumption of Aggravation

The presumption of aggravation, on the other hand, comes into play when the presumption of soundness applies (no relevant disability or illness noted in the induction examination), but is rebutted by clear and unmistakable medical evidence of its existence prior to service. In that context, the presumption of in-service aggravation applies: the Veteran’s disability is presumed to have been aggravated by service. Against this presumption, the VA bears the burden of proof by clear and unmistakable evidence to show no increase of the Veteran’s pre-existing disability during service or that such increase was due to the natural progression of the pre-service disability.

Let’s look at a real case example.

In Horn v. Shinseki, 25 Vet. App. 231 (2012), the Veteran underwent an induction examination, which failed to note any problems with his left hip. During his first three weeks of basic training, the Veteran went to the Army physician, complaining of left hip pain. The Veteran’s medical records reflected a long history of left hip difficulty prior to service. The Army physician diagnosed the Veteran with a serious hip condition and recommended him for medical separation of the Army. The Medical Evaluation Board (MEB) agreed and marked X in its report indicating that the Veteran’s hip condition existed prior to service and was not aggravated by active duty.

On these facts, the Veterans Court found that the presumption of soundness had been rebutted, the medical record showing strong evidence of pre-service hip problems. However, the court ruled that the medical evidence was insufficient to rebut the presumption of aggravation. The court reasoned that the VA bore the burden to show no aggravation during service or that any increase during service was due to the natural progression of hip disability. The VA failed to satisfy either burden. Importantly, the court held that the MEB’s bad conclusion that the Veteran’s hip condition existed prior to service and was not aggravated by active duty did rise to the level of clear and unmistakable evidence to rebut the presumption of aggravation.