Presumption of Soundness

[RBrogen]

Hello Everyone,

I wanted to put a situation out to you all and get your feedback as it would relate to a potential presumption of soundess cue claim.

Back story:  1983 - In high school I tried out for varsity football (note I am 5'5" and 135lbs at that time) so I could have some level of social life.  First day of practice a kid ran into my left side and hurt my knee.  I DID NOT seek medical attention, never went to the doctor and was fine the next day (though I did decide not to try out for football any longer).

Fast Forward:  1985 - I joined the Army National Guard and NO MEDICAL ISSUES were noted on my entrance exam.  I transitioned from ARNG to RA in 1987 and did not have anything listed on the exam for that either.  I was Airborne and have STR entries for strained MCL, Achilles and Twisted knee.

     1991 - I got out of the service with a lumbosacral strain issue with 20% disability at that time.  

    1996 - I had meniscal surgery on left knee

    1997 - I had surgery on my right knee was going to physical therapy.  During the review the physical therapist did to get medical history they asked me about injury history and so I told them the only issue I ever had was the issue in high school which was really a non issue but I was being honest and the meniscus surgery the prior year.  They incorrectly annotated on my record that the high school knee injury was "torn meniscus" by combining my two statements into their notes to read high school knee injury (torn meniscus).

    1999 - I filed a claim for bilateral knee issues and was denied because the rater read that note and said that I had a pre-existing condition.  There is no medical evidence of my high school knee issue because I never went to the doctor and the next day it was fine.

I was finally able to get a rater who service connected and rated for both knees and ankles and nexus was established for marching/jumping in service.  I didn't know exactly why I was originally denied but after getting my c-file I figured out that it was all because of a physical therapist not taking proper notes.

My question is that I don't think they properly applied the presumption of soundness rule in my case because the rater had no direct medical evidence to prove that I had a pre-existing condition and the entrance exam(s) were negative for any medical conditions.  I'd like to get your thoughts.

Edited August 15, 2019 by RBrogen

[GBArmy]

RB this is beyond my pay grade but I'll give you my 2 cents. It is not a CUE.The evidence that the rater relied upon was the (incorrect) entry by the examiner initially. The VA made a decision based in part on what the C&P said. It was inaccurate, but ,did 1) the examiner make a clerical error right/left knee, or, 2) did you mis-speak (as Roger Clemmens said).We know what the truth id, but it is a "he said, she said" situation. Certainly it is much more complcated than that, but the court his a pretty high standard on CUE's.

[RBrogen]

Thanks GBArmy .... my understanding is that the core base is the fact the cue would be that the rater did NOT apply the presumption of soundness rule that explicitly states (regardless of 'hearsay') that the test of Presumption is that any claim to be denied for pre-existing condition MUST have that condition NOTED on entrance exam.  If it is not noted then you are presumed sound mind/body regardless of a non-doctor examination note.  Had the rater properly applied the Presumption law, they would have never gotten to the note discrepancy.

Edited August 15, 2019 by RBrogen

[toddt]

38 CFR § 3.304 (b) ". . .where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted."   In your case it should make no difference whether or not it was preexisting.  It was aggravated by service.  (Just my two cents).

[RBrogen]

2 minutes ago, toddt said:

38 CFR § 3.304 (b) ". . .where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted."   In your case it should make no difference whether or not it was preexisting.  It was aggravated by service.  (Just my two cents).

Here's a great explanation by a veteran lawyer Chris Attig:  https://www.veteranslawblog.org/presumption-of-soundness/

 

[Buck52]

Remember that this is only part of the equation for service connection. If the VA is not able to rebut the presumption of soundness, the veteran still must be able to prove the two other elements of service connection – that he or she has a current disability and that a nexusexists between the current disability and the injury or disease in service.

[RBrogen]

1 minute ago, Buck52 said:

Remember that this is only part of the equation for service connection. If the VA is not able to rebut the presumption of soundness, the veteran still must be able to prove the two other elements of service connection – that he or she has a current disability and that a nexusexists between the current disability and the injury or disease in service.

Right well the point on that is that I am now service connected for both knees which was what was denied me before so the nexus was established.  I'm not sure but one could extrapolate that to be that if they had correctly applied the presumption law that it would have probably changed the rating decision.

Edited August 15, 2019 by RBrogen