Bulletin: Making the Most of the Presumption of Soundness
Published June 21, 2016
Bulletin: June 2016
What is the Presumption of Soundness?
A veteran is presumed to have been in good health prior to service if her/his entrance examination does not note the existence of the specific condition or disability:
[E]very 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 . . . .
38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b)
When does the Presumption Apply?
All service members must undergo an induction/entrance/enlistment examination just prior to their service. The resulting examination report may later be important in VA disability claims when there is a question as to whether the veteran’s disability existed prior to service. If the entrance examination report does not note the disability or condition in question, then it is presumed that it did not exist prior to service. The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease manifested in service preexisted service.
Keep in mind that the presumption of soundness applies even if the induction examination notes a history of the condition or its symptoms. A “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R.§ 3.304(b)(1). The presumption will apply unless the disability existed and was noted at the time of the examination.
Example: The case of Crowe v. Brown, 7 Vet.App. 238 (1994) illustrates this principle. The veteran underwent two entrance examinations for two distinct periods of service. Neither examination report noted a condition of asthma at the time of the examination. However, both examination reports noted a history of asthma in early childhood, but no recurrence of the condition. The Veterans Court held that the veteran’s asthma was not noted within the meaning of § 1111 and § 3.304(b). Therefore, the presumption of soundness applied.
How does the VA rebut the presumption?
If the presumption applies, the government can only rebut it by clear and unmistakable evidence that an injury or disease manifested in service preexisted service. This is a very stringent standard.
Example: The case of Kinnaman v. Principi, 4 Vet.App. 20 (1993) well illustrates the high level of proof required to rebut the presumption of soundness. The veteran sought service-connection for keratoconus of his eyes, claiming this illness first manifested during his Coast Guard service. No eye disability was noted in the induction examination. In service, Dr. Harmon, a military physician, tentatively diagnosed appellant with keratoconus. Later, Dr. Harmon wrote that “history and ocular signs indicate that the condition was present prior to Coast Guard induction.” Id. at 27. After making a final diagnosis of early keratoconus, Dr. Harmon wrote in his report that “whether or not the condition existed prior to entry into the Coast Guard cannot be stated with absolute certainty, although it is probable that the process began earlier.” Id.
Based upon Dr. Harmon’s opinion, the Board denied service-connection, finding the presumption of soundness had been rebutted.
Reversing the Board’s finding and remanding for an award of service-connection, the Veterans Court explained:
[T]he question becomes whether a doctor’s statement that there are signs which indicate or suggest that the condition was present prior to induction and his opinion that it is probable, but not absolutely certain, that the condition began prior to service constitute clear and unmistakable evidence sufficient to rebut the presumption of sound condition. We hold that in this case this evidence, even when considered with the evidence that was noted by the BVA, does not constitute clear and unmistakable evidence.
4 Vet.App. at 27.
Practice Tip: A copy of the entrance examination can typically be found in the veteran’s claims filed. If not found there, you will find a copy in the veteran’s personnel file. Upon request, a copy of the personnel file can be obtained from the National Archives (www.archives.gov).