It is not uncommon for a veteran to have suffered some disability during childhood and not have the disability recur until military service. This raises the question as to whether the presumption of soundness attaches and whether a Veteran’s disability was a preexisting condition.
The presumption of soundness is defined as follows:
[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 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.
38 U.S.C. § 1111.
The presumption attaches only where there has been an enlistment examination, and the disability during childhood in question was not “noted.” According to 38 C.F.R. § 3.304(b), noted includes only conditions recorded in examination reports and history of preservice existence of conditions recorded at the time of the examination does not constitute being “noted.”
The appellant in Crowe v. Brown, 7 Vet App. 238 (1994) had entrance examination records for 1958 and 1962, both of which did not note any condition of asthma (the condition for which he was denied service connection). Because his condition of asthma was not noted during either examination, the presumption of soundness attaches and VA had the burden to show by clear and convincing evidence 1) asthma preexisted appellant’s service and 2) was not aggravated during such service.
The only evidence existing to show appellant had asthma before service was as a child appellant experienced swollen neck glands, a prolonged cough and some throat difficulty. The Court of Appeals for Veterans Claims stated that this was insufficient to meet the standard of clear and convincing evidence. Nor did evidence suggesting appellant had asthma problems at 2, 4 and 5.
Moreover, the Court indicates the Board of Veterans’ Appeals did not provide adequate reasons or bases for its finding of asthma as a preexisting condition. The opinion of a physician Board member or a Board medical adviser, without more, does not constitute sufficient evidence to meet the Board’s burden. Therefore, the Court remanded the Board’s decision for further review.
If you or somebody you know is struggling with the VA and their claim, contact Berry Law’s team of experienced lawyers today at (888) 883-2483 for a free consultation.
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