Early Medical Discharge

[banchie]

Hi! I had a vet move in across from me and he says he didn't know he had cancer when he enlisted. At some point he had a complete induction medical exam. Several months later while in boot camp the military discharge him on medical grounds of cancer. The VA claims even though he had the exam, the short time period served is not enough for benefits or connection.

Ever hear of a vet being denied after having passed an induction exam and serving in the military? The VA has got the guy believing he has nothing coming, even though he served for a short while.

[Ricky]

Rick is making a good point here. With cancer the docs can probably determine, based upon the stage of the disease at discharge, when it began. Then it would be a question of aggervation.

[Pete53]

Every day of basic was aggravating :P

[Josephine]

Hi! I had a vet move in across from me and he says he didn't know he had cancer when he enlisted. At some point he had a complete induction medical exam. Several months later while in boot camp the military discharge him on medical grounds of cancer. The VA claims even though he had the exam, the short time period served is not enough for benefits or connection.

Ever hear of a vet being denied after having passed an induction exam and serving in the military? The VA has got the guy believing he has nothing coming, even though he served for a short while.

You say, several months later. Boot camp is usually about 3 months long. Are you sure that he was discharged in boot camp?

Here are some laws.

In this regard, 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. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(:P.

To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(; VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004).

The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116, 132 (2003).

When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability

was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153.

Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant, 17 Vet. App. at 131.

Miller v. West, 11 Vet. 345, 348 (1998) (holding that a conclusion written by a medical professional without factual predicate in the record is not clear and unmistakable evidence sufficient to rebut the statutory presumption of soundness)

Betty

[john999]

Apeal because no one can say for sure when the cancer started but the military took his as able bodied. How can the military or VA prove he had cancer before enlistment? That is like you getting a broken leg in basic and the army saying "well, you had weak bones before enlistment".

[john999]

Betty

You are getting to be a real pro on the question of pre-existing injuries and illnesses. Stay around and help others with this.

John

[Josephine]

"several months later" from your post it appears that he does not meet the 24 month requirement for benefits.

Ricky,

If you have to serve 24 months, I am out the door. I thought it was 90 days at most.

Of coure you know me, I am just learning.

Always,

Betty