Thursday, November 1, 2012

Presumption of soundness

A veteran is presumed to have entered service in sound condition unless a preexisting condition is noted upon entry into service. 38 U.S.C. § 1111. Once this presumption of soundness applies, the burden falls on VA to rebut the presumption with “clear and unmistakable evidence” that the condition both preexisted service and was not aggravated by service.  Even if there is evidence that the condition preexisted service, VA must still prove, with “clear and unmistakable evidence,” that the condition was not aggravated in service.

In this case, the Veterans Court held that a Medical Examination Board (MEB) report “containing only an unexplained ‘X’ in a box on a form” cannot constitute the “clear and unmistakable evidence” required to rebut the presumption of aggravation prong of the presumption of soundness. Horn v. Shinseki, docket no. 10-0853 (Vet. App. June 21, 2012). The Court stated that VA adjudicators “may not deny claims involving the presumption of soundness based upon MEB reports containing no supporting analysis.” 

(posted to July 2012)

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