Many veterans get denied veterans disability benefits because VA says that their medical condition is preexisting. This can happen in many different types of claims. Some of the types of claims where I see these types of denials occur a lot are:
Sleep apnea
Orthopedic conditions (back, neck, shoulder, knee, and others)
Heart conditions
Preexisting condition denials are not limited to these three types of claims. They can occur for any type of medical condition.
So, what can you do if VA denies your claim on the grounds that your medical condition preexisted your service? One thing that can help is to learn about a particular part of VA law known as the “presumption of soundness”.
What is the Presumption of Soundness?
If you have never heard of the presumption of soundness, do not worry. Unfortunately, many veterans have never heard of this concept.
VA law says, “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.”
That may sound a little bit like lawyer talk. What this rule really focuses on is what happened when you entered service. If you had an exam upon entry into service and that examiner did not find anything wrong with you, VA cannot later say that your condition preexisted service.
They cannot later deny your condition as preexisting condition because the exam you had when you entered service determined you to be sound. If they didn’t find it, they do not get to deny based on that being something they claim preexisted service. Basically, the law assumes that condition must have arisen after your entrance exam.
How do you trigger that presumption of soundness?
You trigger the presumption of soundness by showing that you had a disability or a disease that existed during your time of service. If you do that, then the presumption is triggered. When this happens, VA is very limited in their ways that they can deny it.
I do see decisions from VA where they deny benefits to a veteran because they claim the veteran already had the condition when they entered service. For VA to be successful with this type of denial, that condition needs to be noted on your entry exam. If it is not, then the presumption of soundness applies.
Can VA rebut the presumption of soundness?
Yes. VA can rebut the presumption of soundness, but it is very difficult for them to do so. In order to rebut that presumption, VA must have clear and unmistakable evidence that you had the condition prior to you going into service.
If VA applies the presumption of soundness in your claim but indicated they have rebutted it, you should probably have an attorney review that decision. The exact rules of presumptions and when there is enough evidence and the right type of evidence to rebut them can be confusing. It may be helpful to have a second set of eyes looking at that for you.
If the presumption of soundness applies, do I automatically win service connection?
No. The presumption of soundness does not automatically mean that you win your claim. While the presumption of soundness is a tremendous tool to use in your favor, you still have to prove that all the elements of your claim.
Once you establish this, the presumption of soundness limits the ways that VA can try to deny you. Essentially, the presumption of soundness creates certain burdens for VA once the presumption applies.
They have to have clear and unmistakable evidence to rebut that presumption, to show that you did have it before service. But, the creation of that burden for VA does not relieve you of your burden to prove service connection.
If I am denied VA disability compensation based on a preexisting condition, how long do I have to appeal that decision?
In this particular situation, it may be that the normal rules do not apply for you to challenge that decision. Normally, you have one year to appeal VA’s denial in order to maintain your effective date. If you wait longer than one year, you will need to reopen that claim with new and material evidence and will probably lose your earlier effective date.
The safest thing to do is to file your appeal on time. But, it is possible that you waited too long and missed the appeal deadline, If you did, there may still be something you can do to get the earlier effective date and not give yp retroactive benefits that you should receive.
The presumption of soundness is a legal concept. There is a part of VA’s law that potentially lets you challenge where VA makes a clear and unmistakable error in how they apply the law and maintain your effective date, even though you missed the appeal deadline.
Keep this in mind if you read this and you were denied a long time ago on the basis that your condition was preexisting. You may still be able to get that error corrected using this special part of veterans disability benefits law. But, remember that the safest thing to do is to file your appeal within the deadline.
What should I do if I believe VA wrongly denied me based on a preexisting condition?
There are two things that you will want to do if VA denies you based on a preexisting condition.
Talk to a veterans disablitiy attorney about what can be done
File a timely appeal of VA’s denial
If you have time to talk to an attorney before filing an appeal, I would recommend doing that. An attorney may be able to give you some direction about the best way to approach your case and could help out with filing the appeal.
Travis Studdard is an attorney who focuses on representing veterans in VA disability compensation claims. He regularly writes about issues that are important to veterans and their families.
You can subscribe to his Veterans Disability channel on YouTube.
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Vernita SmithVernita Smith
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I understand you want your VA claim to be done as quickly as possible. But remember the ultimate goal – to win your VA disability compensation claim.
You may eventually get there on your own, but it may be after a series of decisions by the Regional Office and Board of Veterans Appeals. Sometimes claims are appealed and remanded several times, which can cause a claim to drag on for years. If you are interested in avoiding unnecessary delay in your claim and want to do everything you can to maximize your chances of success, it is probably a good idea for you to consult with an accredited veterans disability attorney.
We would be happy to talk to you. If you would like a free consultation with our Perkins Studdard veterans disability attorneys just click here or give us a call to begin the process.
