In Gilbert v. Shinseki, docket no. 11-2355 (Vet. App. Oct. 24, 2012), the CAVC clarified the law on when the presumption of soundness applies. The Court held that the presumption of soundness applies only when a condition that is not noted upon entry into service manifests in service, and there is a question as to whether the condition preexisted service. In order to be entitled to the presumption of soundness, therefore, the veteran must show that the condition (1) was not noted upon entry into service and (2) manifested (was incurred) in service.
In order to rebut the presumption of soundness, the Secretary must “prove by clear and unmistakable evidence” that the condition “both preexisted service and was not aggravated by service.” If the Secretary rebuts the presumption, then the veteran has not established that the condition manifested in service – and service connection is not warranted. If the Secretary fails to rebut the presumption of soundness, the veteran is not entitled to the presumption of aggravation. Instead, the condition is deemed incurred in service. Finally, even if the presumption of soundness applies – and is unrebutted by the Secretary – the veteran must still prove that the current disability is related to that in-service condition (the nexus element).