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

[Buck52]

Another way to prove service connection is ifa pre-existing condition is aggravated during military service. There is a presumption of aggravation. This means, that if it is shown that the medical condition the veteran had before service was made worse while in-service by the veteran then the VA must show by "clear and unmistakable evidence" that the increase in disability is due to the natural progress of the disease. To rebut this presumption the VA has a very difficult burden to meet.

This type of service connection needs to be made when the VA is able to overcome the presumption of soundness. Under VA law it is presumed the veteran was in sound condition when he entered service. To rebut this presumption, the VA must show "clear and unmistakable" evidence that the condition pre-existed service. If the condition is noted on the entrance medical exam then the presumption of soundness for that condition does not apply.

The most common reasons aveteran is found to have a pre-existing condition is if there was medical records of treatment for the condition prior to service, or the veteran states he had the medical condition before service or it was noted in his/her entrance medical exam. In this type of service connection, the issue is first whether there was a pre-existing condition. Second, if there was a pre-existing condition was that condition made worse or aggravated by service. Lastly, if the condition has become worse is it due to a natural progression of the disease. If you have a claim of this type the most important aspect is to show by medical evidence that your condition has gotten worse in service. If you can show this, the VA has a very difficult burden to meet when having to show that your worsening condition is the result of the natural progression of the disease. The VA will normally try to overcome the burden by opinion evidence from the VA doctor that states your worsening of your condition is due to the natural progression of the disease. If they have an opinion like this in your particular case it would be a good idea to get opinion from your own doctor.

[RBrogen]

3 minutes ago, Buck52 said:

Another way to prove service connection is ifa pre-existing condition is aggravated during military service. There is a presumption of aggravation. This means, that if it is shown that the medical condition the veteran had before service was made worse while in-service by the veteran then the VA must show by "clear and unmistakable evidence" that the increase in disability is due to the natural progress of the disease. To rebut this presumption the VA has a very difficult burden to meet.

This type of service connection needs to be made when the VA is able to overcome the presumption of soundness. Under VA law it is presumed the veteran was in sound condition when he entered service. To rebut this presumption, the VA must show "clear and unmistakable" evidence that the condition pre-existed service. If the condition is noted on the entrance medical exam then the presumption of soundness for that condition does not apply.

The most common reasons aveteran is found to have a pre-existing condition is if there was medical records of treatment for the condition prior to service, or the veteran states he had the medical condition before service or it was noted in his/her entrance medical exam. In this type of service connection, the issue is first whether there was a pre-existing condition. Second, if there was a pre-existing condition was that condition made worse or aggravated by service. Lastly, if the condition has become worse is it due to a natural progression of the disease. If you have a claim of this type the most important aspect is to show by medical evidence that your condition has gotten worse in service. If you can show this, the VA has a very difficult burden to meet when having to show that your worsening condition is the result of the natural progression of the disease. The VA will normally try to overcome the burden by opinion evidence from the VA doctor that states your worsening of your condition is due to the natural progression of the disease. If they have an opinion like this in your particular case it would be a good idea to get opinion from your own doctor.

Since I have the service connection now, I would think that the fact that the didn't apply the presumption law originally would be even more in question and go to support my position.  I have never said that I had a high school knee injury of torn meniscus because I never had one did.  I never went to a doctor for that so there is absolutely no medical evidence that can state otherwise. 

[RBrogen]

Here's an actual court case where the court sided with the Veteran in an almost identical situation as mine.  The veteran in this case actually said he had sustained an injury prior to service.

Check this out: https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015408/Wagner-v.-Principi,-Jun-1,-2004,-370-F.3d-1089

[Buck52]

 you are Correct

''According to the Federal Circuit, the effect of section 1111 on claims for service-connected disability thus may be summarized as follows.  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.''  

[RBrogen]

I'm optimistic about what I've seen and how my evidence falls into alignment with what I believe is a plausible case.  Like everything with the VA, I get the sense I won't know how the VA is going to "respond" until I package it up concisely, timeline and exhibits and submit the request for claim reopened based on CUE.