When I am reviewing a veteran’s file to determine if I can help, a VA notation that a claim has been denied because the veteran had a pre-existing disease or disability prior to service is a red flag to me that the VA has probably made an error in evaluating the case. More often than not in these cases, the VA has failed to properly apply the law.
So, let’s start with the law. The VA is perfectly within its rights to deny service connection if a disease or disability actually did exist prior to entry into the military (sometimes this is noted in the file as EPTE—existing prior to entrance) and was not worsened by the veteran’s service. But this isn’t something that can be done lightly. The law is written to favor the veteran. To start with, veterans are entitled to a presumption of soundness. This means that unless the veteran’s entrance examination into the military specifically notes that there is a pre-existing condition, VA must presume that the veteran did not have a pre-existing condition. If the veteran then develops a disability or disease during service, VA must presume that the condition is service-connected unless VA can show evidence that it is not.
It’s important to know that in this situation, where there is no notation of a pre-existing condition on entrance but the veteran develops one during service, the veteran is not required to prove the origins of that disability. Once the presumption of soundness attaches to a case, the veteran does not have to prove he was in sound condition, it is the VA which has to prove that he or she was NOT in sound condition. And unlike the standard for evidence supplied by the veteran…where the veteran only has to show that something is 50/50 or “as likely as not,” the VA has to provide evidence that is “clear and unmistakable,” about which there can be no debate. In other words, if there is evidence to support a finding that the condition pre-existed service, along with other evidence that shows that the condition did NOT pre-exist service, the VA’s evidence is not undebatable and cannot be used to rebut the presumption of soundness. The VA can only overturn the presumption of soundness by providing clear and unmistakable evidence that the condition pre-existed service and was not aggravated or worsened by service.
There are exceptions—conditions which, by their nature, can be deemed to have pre-existed service. If a service member is diagnosed with a congenital defect in service (assuming that the diagnosis is correct), one which is known to be something that a person is born with, the VA may bypass the presumption of soundness. For instance, VA does not grant service connection for personality disorders which are known to be lifelong conditions, nor will it grant service connection for a birth defect or a congenital or developmental defect. A congenital defect is one which does not change and which is not capable of being caused of aggravated by the veteran’s circumstances or surroundings. There is a difference, however between a congenital defect and a congenital disease. A disease can, under the VA’s definition, change and deteriorate in response to the veteran’s circumstances and is entitled to the presumption of soundness if not noted in the entrance examination.
Even if a condition was noted on the entrance examination, though, this doesn’t necessarily mean that it cannot be service connected. VA must also consider whether that condition was aggravated by service. If a veteran’s condition gets worse during service, a veteran is entitled to a presumption of aggravation—in other words, the worsening or aggravation is presumed to have been caused by the veteran’s military service unless evidence shows that the disability would have naturally worsened in the same degree no matter what the circumstances. So, if a veteran’s entrance medical examination shows that the veteran has a pre-existing disability which is asymptomatic, and yet he or she leaves the service with a permanently worsened condition, unless there is evidence to the contrary, VA must assume that the condition was worsened by the veteran’s service. For instance, a veteran who exhibits symptoms of mild depression upon entrance into service but leaves the service with a major depressive disorder and constant suicidal ideation might still be able to service connect that condition if there is a medical determination that the condition permanently worsened during service.
We often find that the VA fails to apply the law correctly in regard to the presumption of soundness, so if the VA denies your claim based on a pre-existing condition, take a second look at the decision to see if the VA has proved, with clear and unmistakable evidence, that the condition did exist prior to service. If VA has failed to provide that evidence, then you should appeal the decision. If the VA didn’t provide that evidence, it may be (and often is) because there is no such evidence to be had.
