For purposes of veterans benefits, absent clear and unmistakable evidence to the contrary, every soldier who enters military service is presumed to be in sound condition. According to 38 U.S.C.S. §1111,
. . . 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.
In essence, under this presumption of soundness, the VA must accept that you were in sound condition upon entry into military service with only two exceptions: 1) A health condition was “noted” during your entry health exam or 2) VA shows by clear and unmistakable evidence that you had an injury or disease that existed before entering into military service and this injury or disease was not aggravated or worsened by your military service.
In order for a health condition to have been “noted” during an entry exam, it must have appeared in a written entry exam report. This means that symptoms of the condition must have actually existed upon examination or been observed by the examining physician. In other words, if you reported that you had asthma as a child, but it was not present during the examination, you would be considered in sound condition because your asthma was not actually noted upon examination; rather, your physician was made aware of your past asthma condition when you gave your history of known conditions, but no present condition was noted at the time of the exam.
In the event that your claimed condition was not noted during your entry exam, the VA may argue that your condition pre-existed your military service. However, the VA must show by clear and unmistakable evidence that your condition actually pre-existed your military service. The standard for clear and unmistakable evidence is defined as undebatable evidence. For this standard to be satisfied, it must be crystal clear that your claimed condition pre-existed your military service. This is a very high standard of proof.
If the VA is successful in proving that your condition did pre-exist your military service, the VA must also show by clear and unmistakable evidence that your claimed condition was not aggravated during your military service beyond the natural progression of the condition. (Some exceptions which are not addressed in this article apply to claims filed between 1961 and 2003). This would likely require a medical opinion in your VA claims file stating that the pre-existing condition was not aggravated by your military service.
If you have any questions about whether your claims for veterans benefits have been properly handled by the VA, please contact the Berry Law at (888) 883-2483. Our veterans benefits attorneys are trained to assist you to get the veterans disability benefits you lawfully deserve.
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