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.
I recently needed a lawyer for a Workers Compensation Inj. The Dr. I saw ordered back surgery. The company declined to approve the surgery. So i went to the Law firm of Perkins & Studdard, as they were highly recommended…Mr. Studdard is a Veterans Affairs Lawyer. Mr. Perkins & his staff handled my case… every person in the firm were nice, helpful, and showed empathy for my situation. Mr. Perkins is very thorough & at the same time worked diligently for me. He got me compensated fairly. If not for this Law firm im not sure what i would’ve done. Thankfully they lowered my stress and communicated regularly.
If you need help with an injury etc… Perkins & Studdard is who I highly recommend!!!tim copley
After my VA claim was denied, I felt defeated, depressed, and overwhelmed. I spent a lot of time researching different agencies, only to find that many of them made promises they couldn't back up and were not properly accredited.
I decided to give Perkins Studdard LLC a chance because they were accredited, and it turned out to be one of the best decisions I've ever made. From the very beginning, Jessica, Travis, and the entire team were professional, knowledgeable, and genuinely committed to helping me navigate the VA claims and appeals process.
Their guidance, communication, and dedication made a difficult process much easier to manage. Thanks to their hard work and expertise, I finally received the benefits I had been fighting for.
I highly recommend Perkins Studdard LLC to any veteran seeking assistance with a VA claim or appeal. Don't waste your time elsewhere—this team truly cares and delivers outstanding service.nelson figueroa
Travis, Jessica and the team were amazing. I’ve been working for the benefits I’ve deserved for years and should have worked with Perkins Studdard initially. They were always great answering questions and helped me more than I ever could have imagined. I highly recommended them as a VA disability law team to help anyone. I’d give more stars if I could.Theodore Tarbush
I highly recommend Travis and his team. From start to finish, the communication and professionalism were outstanding. Jessica was absolutely amazing — responsive, knowledgeable, patient, and always willing to help answer questions and keep me informed throughout the process.
Travis was also excellent and made me feel confident that I was in good hands. Their entire office treated me with respect and care, and I truly appreciate everything they did for me. If you’re looking for an attorney and legal team that genuinely cares about their clients, I would definitely recommend them.Carlos Thornton
Travis Studdard and his team were always professional and from intake to case resolution, they were extremely pleasant to work with. After working closely with them for roughly six years, they successfully appealed my sleep apnea claim with the VA. At times I thought about giving up, but it was their diligence and confidence in their approach that gave me the ability sustain. There were no surprises, they led me by hand every step of the way. My family and I are truly appreciative for their great work. His team truly cares and it shows. They will fight to the end for veterans. I couldn't be happier with the results.James
I had the pleasure to be helped by Travis and his team on my VA disability claim. They know what they are doing, and I would definitely work with them again. I recommend them to any veteran that has a wrongfully denied claim with the VA...Joel Onomo
Travis and his team helped me get my case done when I couldn't get it done by myself.Everything went much faster and better than I expected.I highly recommend his team for any veteran trying to get a claim processed. Norman Scott,U.S.Army veteranNorman Scott
Jason Perkins and his team are so kind, knowledgable and helpful. They were thorough with all my legal needs and made sure my medical needs were taken care of financially. What I most appreciate is that he was always very clear about what was best for my case, but he also always told me I needed to do what was best for me, both mentally and physically. He was always available to answer questions, made sure I understood, and was willing to let me make decisions regarding my case. His ethics are beyond reproach. He would not take a percentage of a payment he did not help me receive. You can trust him. He always made it clear that my mental and physical well-being were more important than any part of my case. Then he would explain what would be best for the case and why, and allow me time to decide. Being in the Worker's Compensation system was an incredibly demeaning experience. I am a strong, educated woman, but when everyone in a system tells you that you are not worthy of the care you have received your entire life, and you instantly become less than to many of those who are suppose to be caring for you, it would weigh on anyone. I am so thankful I had Jason and his team fighting for me, getting me things I never would have imagined would be denied, like a second opinion before surgery, or physical therapy instead of opioids. I cannot imagine trying to handle this experience by myself.Andri Pilgrim
Would definitely recommend 10/10! The team was super helpful through the entire process, and always were available for questions anytime I needed. Always quick to respond, and we’re always sweet and professional!Haley Nicole
Perkins Studdard LLC has been wonderful to work with from the first day through the final journey. They were prompt in requesting the information from me so they could appeal my claim with the VA. I had exhausted all means trying but they were able to get me to 100%. I would "HIGHLY" recommend using them if you are having difficulty getting anywhere with the VA.Mike Black
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.
