AGGRAVATION. Celeste Krikorian. MOPH NSO Training Orlando, FL March 2013

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1 Celeste Krikorian MOPH NSO Training Orlando, FL March 2013

2 OBJECTIVES: odefinitions opresumption of Sound Condition o Who has Legal Burden? o Notations made on STRs ocavc Case: Horn v. Shinseki MOPH NSO Training Orlando, FL March 2013o 2

3 The theory of Aggravation only applies if the Presumption of Soundness is rebutted. MOPH NSO Training Orlando, FL March

4 What is the Presumption of Soundness? [E]very 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, enrollment. 38 USC 1111, 38 CFR 3.304(b)(2012). MOPH NSO Training Orlando, FL March

5 PRESUMPTION OF SOUNDNESS: PLAIN MEANING When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. Horn v. Shinseki citing Wagner v. Principi, and Bagby v. Derwinski. MOPH NSO Training Orlando, FL March

6 BE CAREFUL!! History of pre-service existence of conditions recorded at the time of [entrance] examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 CFR 3.304(b)(1) MOPH NSO Training Orlando, FL March

7 SCENARIO 1: Vet seeks SC for condition not noted on service entrance exam. 1. Not noted=presumption of Soundness applies 2. Proceed with traditional SC claim. 3. If VA questions, they have burden MOPH NSO Training Orlando, FL March

8 SCENARIO 2: Vet seeks SC for condition noted on service entrance exam thru examination BY PHYSICIAN. Condition properly found and noted = Presumption of soundness rebutted. Pre-existing condition. Presumption of Aggravation. MOPH NSO Training Orlando, FL March

9 Presumption of Aggravation: Burden Shifting First, BURDEN ON VET, Vet must show noted condition worsened. If so, aggravation is presumed. MOPH NSO Training Orlando, FL March

10 Presumption of Aggravation: Burden Shifting Next, BURDEN ON VA, VA must establish by clear and unmistakable evidence that worsening was due to natural progression of disease or no worsening of condition. If VA cannot meet burden, Vet prevails. MOPH NSO Training Orlando, FL March

11 KEY: VA should rely on medical opinion to meet their burden. MOPH NSO Training Orlando, FL March

12 SCENARIO 3: If Vet seeks SC for condition that was NOT noted on service entrance exam but preexistence is some way indicated, PRESUMPTON OF SOUNDNESS APPLIES MOPH NSO Training Orlando, FL March

13 SCENARIO 3: VA MUST REBUT THE PRESUMPTION OF SOUNDESS BY PROVING BY CLEAR AND UNMISTAKABLE EVIDENCE THAT 1) THE CONDITION PRE-EXISTED SERVICE AND 2) MUST SHOW NO AGGRAVATION. (lack of aggravation) If VA shows 1 and 2, Vet will not prevail. MOPH NSO Training Orlando, FL March

14 -If VA cannot show both, then case moves forward on nexus. Is service incurred disability related to current disability. -Showing no injury in service is NOT proof of lack of aggravation. Horn v. Shinseki. HERE BURDEN NEVER SHIFTS TO VET. MOPH NSO Training Orlando, FL March

15 Hypothetical 1 AGGRAVATION Vet files SC claim for knee disorder. Vet entered service with no notation of knee disorder on service entrance exam. During service veteran stated that he had knee disorder since age of 10. Vet complained of knee pain in service and MEB contained a marked box that there was no aggravation of pre-exisitng condition in service. No other comment was in record of MEB finding. MOPH NSO Training Orlando, FL March

16 Hypothetical 1 Questions presented? 1. Is there a Presumption of Soundness under facts? 2. If VA wants to rebut Presumption of Soundness, Who has burden of proof? Vet or VA? 3. What is required to rebut Presumption of Soundness? MOPH NSO Training Orlando, FL March

17 Hypothetical 1 Answers 1. Yes, there was no knee condition found on service entrance examination. 2. VA has burden because Vet has P.O.S. 3. VA must rebut the P.O.S. by proving by CLEAR and UNMISTAKABLE EVIDENCE that 1) THE CONDITION PRE-EXISTED SERVICE AND 2) MUST SHOW NO AGGRAVATION. (lack of aggravation) MOPH NSO Training Orlando, FL March

18 Hypothetical 1 More Questions presented 4. Can Vet s statement of pre-existing knee disorder alone be accepted as Clear and Unmistakable evidence of a preexisting condition? 5. Can MEB report with box marked no inservice aggravation be considered clear and unmistakable evidence to show lack of aggravation? 6. Can this marked box used with other evidence show lack of aggravation? MOPH NSO Training Orlando, FL March

19 Hypothetical 1 Answers 4. Yes, it can. 5. No, it cannot. 6. Yes, it can. MOPH NSO Training Orlando, FL March

20 Hypothetical 2 Vet files SC claim for ankle disorder. Vet entered service with Hx of ankle injury during high school football on service entrance exam. VA entrance physician found no ankle disorder. MOPH NSO Training Orlando, FL March

21 Hypothetical 2 Questions presented? 1. Does Vet s stated hx of ankle injury rebut Presumption of Soundness under facts and place burden on Vet to show increased severity of ankle condition during service? 2. If not, but VA wants to rebut the Presumption of Soundness, who has burden of proof? Vet or VA? MOPH NSO Training Orlando, FL March

22 Hypothetical 2 Answers 1. No, history on service entrance not enough. 2. VA has burden to rebut P.O.S. MOPH NSO Training Orlando, FL March

23 Hypothetical 3 AGGRAVATION Vet entered claim for back disorder. Upon service entry, VA physician noted some medical findings regarding the back but accepted veteran into service. Vet did not have another back injury during service, but he was medically separated from service after basic training due to back. MOPH NSO Training Orlando, FL March

24 Hypothetical 3 Questions presented? 1. Is there a Presumption of Soundness under facts? 2. Does the presumption of aggravation apply? 3. If so, who has burden to proof what elements and why? MOPH NSO Training Orlando, FL March

25 Hypothetical 3 Answers 1. No. 2. Yes. 3. First, BURDEN ON VET, Vet must show noted condition worsened by lay stmts, treatment, etc. If so, aggravation is presumed. MOPH NSO Training Orlando, FL March

26 Hypothetical 3 Answers (cont d) AGGRAVATION 3. Once aggravation is presumed, BURDEN shifts to VA to prove: by CLEAR and UNMISTAKABLE evidence that there was no increase in severity or any increase in severity was natural progression of disease. MOPH NSO Training Orlando, FL March

27 QUESTIONS? MOPH NSO Training Orlando, FL March