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The Law on Presumption of Soundness and how it affects your VA disability claim for aggravation


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The “presumption of soundness” means that the Veteran will be considered to have been in good health (the claimed disability did not exist) when they were examined, accepted, and enrolled for service. If a pre-existing medical condition was “aggravated” by service, the VA is responsible for covering that condition.

 

vertical-red-line (40 x 100 px).png38 U.S. Code § 1111 - Presumption of sound condition 

For the purposes of section 1110 of this title, 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.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1119, § 311; renumbered § 1111 and amended Pub. L. 102–83, § 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 406.)

Exceptions:  The presumption of soundness does not apply when the evidence shows

  • defects, infirmities, or disorders noted at entrance into service (such as conditions noted on the entrance examination) or
  • the injury or disease clearly and unmistakably existed prior to service and was not aggravated by service.

Notes

  • The presumption of soundness applies only when the Veteran underwent a physical examination at the time of entry into service on which the claim is based. 
  • Only the conditions recorded in the enlistment examination report will be considered as noted. A history of pre-service conditions recorded during the entrance examination is not a notation of the condition. It is just one factor that must be considered on the question of presumption of soundness. 
  • The presumption of soundness is also applicable when the Veteran underwent a physical examination upon entrance into service, but the examination report is unavailable. In such a situation, the presumption of soundness will stand. Once the presumption of soundness arises, it is only overcome when the record contains clear and unmistakable evidence showing that the disease or injury existed before service and was not aggravated by service.
  • A defect, infirmity, or disorder noted on the enlistment examination must meet established criteria and/or definitions of disability to overcome the presumption of soundness. For example, audiometric data documenting the existence of abnormal hearing but not to the extent satisfactory to meet the definition of hearing loss for VA purposes as specified in 38 CFR 3.385 would not overcome the presumption of soundness. To establish that there was a hearing loss existent at enlistment, the audiometric data must document hearing loss for VA purposes as defined in 38 CFR 3.385.

Reference:  For more information on the presumption of soundness and aggravation, see:

 
Use the table below to determine the service requirements the Veteran must meet before the VA can apply the presumption of soundness.
If the Veteran served during … Then the Veteran must …
peacetime before January 1, 1947
have had active continuous service of six months or more, per 38 CFR 3.305(b).
peacetime on or after January 1, 1947, or wartime
meet no minimum service requirements per 38 CFR 3.304(b).

Under 38 USC 1111, when no pre-existing condition is noted at entrance into service, then the presumption of soundness establishes that the claimed disability did not exist before service unless there is clear and unmistakable (undebatable) evidence showing that the disease or injury that manifested in service.
 
  • existed prior to service and
  • was not aggravated by service.
  • Notes: 
  • Personality disorders are not considered diseases or injuries under 38 USC 1110; therefore, the presumption of soundness under 38 USC 1111 pertaining to personality disorders does not apply.
  • The presumption of soundness still requires evidence of a nexus between a current disability and the in-service disease or injury. 

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Tbird
 

Founder HadIt.com Veteran To Veteran LLC - Founded Jan 20, 1997

 

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