Special Veterans Disability Rules for Preexisting Conditions

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

Man getting off couch with back pain

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.

You need to show that your current disability is related to your military service.  For that presumption of soundness to apply, you need to show that you incurred or aggravated this condition in service. You have to show the  “nexus” between your service and your disability.

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.

Couple with denial letter from VA 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.

  1. Talk to a veterans disablitiy attorney about what can be done
  2. 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.

Even if you have filed your appeal before speaking with an attorney, I would still recommend that you speak with one.  Our office will be happy to provide you with a free veterans disability benefits consultation whether you have already filed your appeal or are waiting to appeal.  Just read this short article to learn more about how our free veterans disability benefits consultation process works.

What if I have more questions about my VA claim?

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.

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.
Rita BarnesRita Barnes
00:03 20 Jan 22
This is a great group of people who really care about your well being. They all treated me as though I was family and helped me with my work comp case in more ways than the average would have.Thank you Jason and Thank you Tina! For doing an awesome job.
Cortex ButlerCortex Butler
18:09 29 Dec 21
I am a Veteran of United States Air Force and was awarded my first 30% in 1996 and have been fighting for my rating for 26 years I came to Perkins and Studdard in 2019 while my mom was in a terrible incident and was given to much anesthesia and through GODS Grace she was spared her life, She is disabled since 2018 and I have been struggling with my life and issues and yet I didn’t call the law firm every 10 minutes or call being rude anytime, I mentioned this as I got to know Jessica more than just a phone call and Mr Studdard was always available when not working on other cases or in court, They always called back and Never had to do a call back, My Review is Simple in Life there peaks and valleys and it doesn’t stop because you have issues, Perkins & Studdard took my case in 2019 in 2021 I received my 100% from VA, I Was Never Rude, I was Never Promised Success, I Was Never Lied too and I was Always Treated with Respect, Friendliness, and Kindness the Real Stuff not a (Money Thing) If You want a firm that Cares about the Client and will work on your case even through a pandemic, Will not lie, will not promise anything will communicate your case and will Give you their Best ALWAYS THIS IS THE Best Law Firm for VETS HANDS DOWN Perkins and Studdard THERE IS NO OTHER 100% we had 5 calls Total Case That’s Taking Care Of Business
annetteMomma nokesannetteMomma nokes
14:29 12 Sep 16
Jason and his paralegal Lisa were on point and on top of their game when it came to handling my worker's comp. injury case. I tried going it alone and the insurance carrier pushed me around. They denied extra physical therapy. They denied injections the doctor recommended to ease my pain. When I turned my case over to Jason things turned around, QUICK. They were at all times attentive and on top of my case. I cannot recommend Jason and his staff enough. If you are hurt at work, this is the firm you want on YOUR side.
Sheila KirklinSheila Kirklin
23:11 12 May 16
Jason Perkins, was my lawyer in a workers comp. case, my case has settled now, and I am very happy for all Jason and his office hard work on my case, he was always there to help me out with any questions that I had or help I needed. Jason is a excellent lawyer and if I ever need another one I would only go to Perkins,Because I believe they would be able to help me in any situation I am in need of..
Anna PabonAnna Pabon
23:16 13 Sep 15
I recommend Perkins Law Firm. Everyone I came in contact with there was very nice. Kim was very helpful and any time I had a question she made sure I got an answer. Ann Margaret really took the time to explain things to me.
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