Today’s topic is the “presumption of soundness”.  This presumption is most commonly used when the VA Regional Office attempts to claim that an injury prior to service caused the Veteran’s condition or disability (as opposed to an injury in-service).

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The Presumption of Soundness states that “[u]pon entering service, an individual will be presumed sound, ‘except as to defects, infirmities, or disorders noted at the time of [entry], or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment.”  Here are the various citations you may need to refer to:

* Peacetime Disability Compensation: 38 U.S.C. 1132

* Wartime Disability Compensation: 38 U.S.C. § 1111

* Code of Federal Regulations: 38 C.F.R. §3.304(b)(2010)

The VA Regional Office can attempt to “rebut” the presumption of soundness only where “clear and unmistakeable evidence demonstrates that an injury existed prior to service AND was not aggravated by the Veteran’s military service.” Id. Clear and unmistakable evidence means evidence that “ ‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’ ”  It is akin to “clear and convincing evidence” the highest burden of proof in the American Legal System – and appears to be higher than the government’s burden of proof in convicting an accused of a crime, ‘beyond a reasonable doubt’.

Now, you’ll notice the second element that the VA Regional Office has to overcome to make the rebuttal to the presumption of soundness: that the injury not aggravated by the Veteran’s military service.  This step often ties in to the presumption of aggravation.

The Presumption of Aggravation states that “[a] preexisting injury or disease will be considered to have been aggravated by active … service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153.  The VA Regional Office can show a lack of aggravation by showing there was no increase in the Veteran’s disability during service or that any increase in disability was due to the natural progress of the Veteran’s pre-service condition.

 

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