Presumption Of Soundness Rule (cue)

[KennyJ]

How helpful if any can the Presumption of Soundness Rule be in a CUE claim.

[Hoppy]

Kenny,

The presumption of soundness rule requires a different level of evidence than establishing service connection. To rebut the presumtion of soundness the evidencde needs to be clear and convincing. If they used a perponderence of evidence to make a decision when they should have used "clear and convincing evidence" You might be able to argue a CUE.

Some particulars might help. I read many BVA denials that were based on the veterans subjective recollection of events prior to service. Self diagnosis was treated lke medical fact to deny claims. It was obvious to me that the presumption of soundness rule was ignored by the BVA on many cases.

[Wings]

Federal Register / Vol. 70, No. 85 / Wednesday, May 4, 2005 / Rules and Regulations

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 3

RIN 2900–AL90

Presumption of Sound Condition:

Aggravation of a Disability by Active

Service

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the

Department of Veterans Affairs (VA)

adjudication regulations regarding the

presumption of soundness of a veteran

by adding a requirement that, in order

to rebut the presumption of soundness

of a veteran on entrance into active

service, VA must prove not only that the

condition existed prior to entrance into

active service, but also that it was not

aggravated by the veteran’s active

service. This amendment reflects a

change in VA’s interpretation of the

statute governing the presumption of

sound condition, and is based on a

recent opinion of VA’s General Counsel

as well as a recent decision of the

United States Court of Appeals for the

Federal Circuit. The intended effect of

this amendment is to require that VA,

not the claimant, prove that the

disability preexisted entrance into

military service and that the disability

was not aggravated by such service

before the presumption of soundness on

entrance onto active duty is overcome.

DATES: Effective Date: May 4, 2005.

[Wings]

History of "Final Rule", posted below:

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[Federal Register: May 4, 2005 (Volume 70, Number 85)]

[Rules and Regulations]

[Page 23027-23029]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr04my05-3]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AL90

Presumption of Sound Condition: Aggravation of a Disability by

Active Service

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends the Department of Veterans Affairs (VA)

adjudication regulations regarding the presumption of soundness of a

veteran by adding a requirement that, in order to rebut the presumption

of soundness of a veteran on entrance into active service, VA must

prove not only that the condition existed prior to entrance into active

service, but also that it was not aggravated by the veteran's active

service. This amendment reflects a change in VA's interpretation of the

statute governing the presumption of sound condition, and is based on a

recent opinion of VA's General Counsel as well as a recent decision of

the United States Court of Appeals for the Federal Circuit. The

intended effect of this amendment is to require that VA, not the

claimant, prove that the disability preexisted entrance into military

service and that the disability was not aggravated by such service

before the presumption of soundness on entrance onto active duty is

overcome.

DATES: Effective Date: May 4, 2005.

[[Page 23028]]

Applicability Date: This rule applies to claims that were pending

on or filed after the effective date of this rule, May 4, 2005. It does

not apply to claims that were finally decided prior to the effective

date of this rule or to collateral challenges to final decisions

rendered prior to the effective date of this rule.

FOR FURTHER INFORMATION CONTACT: David Barrans, Attorney, Office of

General Counsel (022), Department of Veterans Affairs, 810 Vermont

Avenue, NW., Washington, DC 20420, telephone (202) 273-6315.

SUPPLEMENTARY INFORMATION: VA is amending its adjudication regulations

at 38 CFR 3.304(b) to reflect a change in the interpretation of the

statute governing the presumption of sound condition.

Section 1111 of title 38, United States Code, provides that

veterans are presumed to have been in sound condition when they were

examined, accepted, and enrolled for service, except as to conditions

that were noted at the time, or ``where clear and unmistakable evidence

demonstrates that the injury or disease existed before acceptance and

enrollment and was not aggravated by such service.''

Section 1153 of title 38, United States Code, states that

``[a] preexisting disease will be considered to have been aggravated by

active military, naval, or air 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.''

VA's regulation implementing the presumption of sound condition, 38

CFR 3.304(b), historically has stated that the presumption may be

rebutted by clear and unmistakable evidence that a condition existed

prior to service. Although this appears to ignore the last seven words

of 38 U.S.C. 1111 (``and was not aggravated by such service''), VA

historically has interpreted those seven words to relate to the

presumption of aggravation under 38 U.S.C. 1153. Accordingly, VA's

regulation implementing the presumption of aggravation under 38 U.S.C.

1153 also implements the last seven words of section 1111, as VA

previously construed those words. That regulation, 38 CFR 3.306(b),

states that, when a preexisting disability increased in severity during

service, the presumption of aggravation may be rebutted only by clear

and unmistakable evidence that the increase was due to the natural

progress of the disease. The regulation further states that aggravation

will not be conceded when a preexisting disability underwent no

increase in severity during service.

Under VA's current regulations, if a condition was not noted at

entry but is shown by clear and unmistakable evidence to have existed

prior to entry, the burden then shifts to the claimant to show that the

condition increased in severity during service. Only if the claimant

satisfies this burden will VA incur the burden of refuting aggravation

by clear and unmistakable evidence.

VA is revising its interpretation of section 1111 to provide that,

if a condition is not noted at entry into service, the presumption of

sound condition can be rebutted only if clear and unmistakable evidence

shows both that the condition existed prior to service and that the

condition was not aggravated by service. Under this interpretation, the

burden does not shift to the claimant to establish that a preexisting

condition increased in severity during service. Rather, VA alone bears

the burden of proving both that the condition existed prior to service

and that it was not aggravated by service. If the evidence fails to

support either of those findings, the presumption of sound condition is

not rebutted.

Our revised interpretation of section 1111 is based on the

extensive analysis of the history of that statute stated in a precedent

opinion of VA's General Counsel, VAOPGCPREC 3-2003, and the Federal

Circuit's opinion in Wagner v. Principi, No. 02-7347 (Fed. Cir. June 1,

2004). As the General Counsel and the Federal Circuit noted, the

language of section 1111 literally provides that, if a condition was

not noted at entry into service, VA bears the burden of showing both

that the condition existed prior to service and that it was not

aggravated by service. If VA fails to establish either of those facts,

the claimant would be entitled to a presumption that he or she entered

service in sound condition.

VA has previously refrained from adopting a strictly literal

interpretation of section 1111, because such a literal reading compels

results that have been described as ``illogical'' by the General

Counsel, ``self-contradictory'' by the Federal Circuit, and possibly

``absurd'' by the United States Court of Appeals for Veterans Claims.

See VAOPGCPREC 3-2003, Wagner, slip op. at 8; Cotant v. Principi, 17

Vet. App. 116, 129 (2003). Among other things, a literal construction

of the statute would require VA to presume that a veteran entered

service in sound condition even in cases where clear and unmistakable

evidence shows the contrary, merely because VA cannot prove the absence

of aggravation in service. It is unclear why the question of whether a

preexisting disability was aggravated in service should have any

bearing on the logically preliminary question of whether there was a

preexisting disability at all.

Despite these concerns, VA's General Counsel and the Federal

Circuit have concluded that the legislative history of section 1111

strongly suggests that Congress intended what the language of the

statute literally requires. The General Counsel also concluded that,

although the statute's requirements seemed counterintuitive, they were

not so bizarre that Congress could not have intended them.

The rebuttal standard in what is now section 1111 originated in the

Act of July 13, 1943, ch. 233, Sec. 9(b), 57 Stat. 554, 556 (Pub. L.

78-144), as an amendment to Veterans' Regulation No. 1(a), part I,

para. I(b) (Exec. Ord. No. 6,156) (June 6, 1933). Prior to the

amendment, paragraph I(b) stated that the presumption of soundness

could be rebutted ``where evidence or medical judgment is such as to

warrant a finding that the injury or disease existed prior to

acceptance and enrollment.'' In 1943, a bill was introduced in the

House to make the presumption of soundness irrebuttable (see H.R. 2703,

78th Cong., 1st Sess. (1943)). That bill apparently was introduced in

response to the concern that ``a great many men have been turned out of

the service after they had served for a long period of time, some of

them probably 2 or 3 years, on the theory that they were disabled

before they were ever taken into the service'' (89 Cong. Rec. 7463

(daily ed. July 7, 1943) (statement of Cong. Rankin)). The

Administrator of Veterans Affairs recommended that the bill be revised

to permit rebuttal of the presumption ``where clear and unmistakable

evidence demonstrates that the injury or disease existed prior to

acceptance and enrollment'' (S. Rep. No. 403, 78th Cong., 1st Sess. 6

(1943)). The Senate thereafter approved an amendment to the bill

adopting the Administrator's suggested language, but adding to it the

phrase ``and was not aggravated by such active military or naval

service.'' That language was approved by the House and was included in

the legislation enacted as Public Law 78-144. The provisions of

Veterans' Regulation No. 1(a), part I, para. I(b), as amended, were

subsequently codified without material change at 38 U.S.C. 311, later

renumbered as section 1111.

A Senate Committee Report concerning the 1943 statute stated that

``[t]he language added by the committee, `and was not aggravated by

such active military or naval service' is to make

[[Page 23029]]

clear the intention to preserve the right in aggravation cases as was

done in Public [Law] No. [73-]141.'' S. Rep. No. 403, at 2. Public Law

73-141, referenced as the model for the Senate amendment, provided for

restoration of service-connected disability awards that had been

severed under depression-era statutes, and provided that:

The provisions of this section shall not apply * * * to persons

as to whom clear and unmistakable evidence discloses that the

disease, injury, or disability had inception before or after the

period of active military or naval service, unless such disease,

injury, or disability is shown to have been aggravated during

service * * * and as to all such cases enumerated in this proviso,

all reasonable doubts shall be resolved in favor of the veteran, the

burden of proof being on the Government.

Act of March 27, 1943, ch. 100, Sec. 27, 48 Stat. 508, 524. This

statute appears to have placed the burden on the government to show by

clear and unmistakable evidence both that the disability existed prior

to service and that it was not aggravated by service. It is thus

consistent with the view that the presumption of soundness enacted in

1943 was intended to place the burden of proof on VA with respect to

both issues. That purpose is also reflected in other statements made

during the debate on the 1943 legislation. See 89 Cong. Rec. 7463

(daily ed. July 7, 1943) (statement of Rep. Rankin) (``It places the

burden of proof on the Veterans' Administration to show by unmistakable

evidence that the injury or disease existed prior to acceptance and

enrollment and was not aggravated by such active military or naval

service.'')

Based on the foregoing authorities, VA is revising its regulations

at 38 CFR 3.304(b) to provide that, in order to rebut the presumption

of sound condition, VA must establish by clear and convincing evidence

both that the disability existed prior to service and that it was not

aggravated by service. To accomplish this, VA is amending Sec.

3.304(b) by adding, at the end of the first sentence, ``and was not

aggravated by such service.''

The effect of this new interpretation is to establish different

standards to govern for disabilities that were noted at entry into

service and those that were not. If a disability was not noted at entry

into service, VA will apply the presumption of sound condition under 38

U.S.C. 1111. If VA fails to establish either that the disability

existed prior to service or that it was not aggravated by service, the

presumption of sound condition will govern and the disability will be

considered to have been incurred in service if all other requirements

for service connection are established. In such cases, the presumption

of aggravation in 38 U.S.C. 1153 will not apply because VA will presume

that the veteran entered service in sound condition. On the other hand,

if a condition was noted at entry into service, VA will consider the

claim with respect to the presumption of aggravation in section 1153.

This final rule is an interpretative rule explaining how VA

construes 38 U.S.C. 1111, and it merely reflects the holding in the

Federal Circuit's decision in Wagner. Accordingly, there is a basis for

dispensing with prior notice and comment and delayed effective date

provisions of 5 U.S.C. 552 and 553.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.

1532, that agencies prepare an assessment of anticipated costs and

benefits before developing any rule that may result in an expenditure

by State, local, and tribal governments, in the aggregate, or by the

private sector, of $100 million or more (adjusted annually for

inflation) in any given year. This rule would have no such effect on

State, local, or tribal governments, or the private sector.

Regulatory Flexibility Act

The Secretary hereby certifies that this regulatory amendment will

not have a significant economic impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act, 5

U.S.C. 601-612. Only VA beneficiaries could be directly affected.

Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from

the initial and final regulatory flexibility analysis requirements of

sections 603 and 604.

Paperwork Reduction Act

This document contains no provisions constituting a collection of

information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

The Catalog of Federal Domestic Assistance program numbers are

64.102, 64.109 and 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Health care,

Individuals with disabilities, Pensions, Veterans.

Approved: April 4, 2005.

Gordon H. Mansfield,

Deputy Secretary of Veterans Affairs.

0

For the reasons set forth in the preamble, 38 CFR part 3 is amended as

follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity

Compensation

0

1. The authority citation for part 3, subpart A continues to read as

follows:

Authority: 38 U.S.C. 501(a), unless otherwise noted.

Sec. 3.304 [Amended]

0

2. In Sec. 3.304, paragraph (b) introductory text, remove ``thereto.''

and add, in its place, ``thereto and was not aggravated by such

service.''

[FR Doc. 05-8899 Filed 5-3-05; 8:45 am]

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