In general, the VA has an obligation to compensate veterans for injuries which were incurred in, aggravated during, or otherwise caused by active duty service in the military. The VA does not have the same obligation when it comes to injuries that existed prior to military service. However, even if the VA suspects that a condition may have pre-existed service, they cannot simply deny the claim on that hunch because of the protection provided to veterans by the Presumption of Soundness rule (38 U.S.C.S. § 1111).
The Presumption of Soundness, or the “presumption of sound condition” rule, means veterans are assumed to have been in sound condition when examined, accepted, and enrolled for service. This rule applies except to all conditions except those “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.”
In plain language, the rule means that the VA must assume a veteran was healthy when he or she entered service unless they can prove otherwise. Recently, the limitations of this rule were tested when the Presumption of Soundness was examined by the Court of Appeals for Veterans Claims (CAVC) in the case of McKinney v. McDonald.
You might be wondering “Who are McKinney and McDonald?”
McKinney is the veteran claimant who tried to claim compensation for what he believed was service-connected hearing loss (more on that below), and McDonald is the current Secretary of Veterans Affairs. When a party wants to take on the VA at the Court level, they bring the appeal against the Secretary of Veterans Affairs by name, even though it’s technically against the whole organization.
McKinney served on active duty in the U.S. Navy from April 1969 to April 1971. As part of his entrance examination, he took an audiometric test to assess his hearing. This examination determined that he had slightly less than perfect hearing. Nevertheless, he was determined to have the highest level of fitness for hearing at his entrance examination. The issue of his apparent slight hearing loss did not come up again until he applied for service connection for hearing loss in April 2009. The Regional Office denied the claim, which was appealed. The Board of Veterans’ Appeals then denied the hearing loss claim, saying that he was not entitled to a presumption of soundness on his hearing because the previous audiometric test showed that he had some degree of preexisting hearing loss.
In short, McKinney’s slight hearing loss at his entrance exam meant that he couldn’t be service connected for hearing loss. This seemed a little unfair to him, considering he was accepted into active duty without a hitch, so he appealed to the CAVC.
The question for the CAVC was whether a slight amount of hearing loss prior to service erased the presumption of soundness for McKinney’s hearing. They determined that it did not. He was entitled to the presumption of soundness. Why? Well, it all came down to one word: “noted.” Remember earlier, when I said the presumption of soundness rule applies except to all conditions, except those “noted at the time of the examination, acceptance, and enrollment.”
The CAVC decided that for a condition to be “noted” on an entrance exam, it had to meet the VA’s definition of a disability. Because Mr. McKinney’s hearing loss wasn’t severe enough at the time of his entrance exam to meet the VA’s definition of disability for hearing loss under 38 C.F.R § 3.385, it couldn’t be said to have been “noted” for the purposes of denying the presumption of soundness. In other words, because Mr. McKinney would not have been able to get compensation for the hearing loss as it existed at entrance (if that same level were caused by service), it couldn’t be noted.
A notation must refer to an actual disability. That is the deceptively simple lesson of McKinney v. McDonald. However, this lesson has implications for all veterans not entitled to the presumption of soundness. Presumption is a powerful and important shield for veterans in defending their claims for service connection. One should not just assume that the Board or the Regional Office is correct if they suggest that the presumption of soundness does not apply. Everyone makes mistakes. Everyone misinterprets the rules.
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