The Legal Presumption: Is a Duck Always a Duck?

You do not need to be a lawyer to handle your own VA claim – in most cases.
  However, you do need a working knowledge of some key legal concepts.
  One of those is the legal concept called a”presumption” – I’m going to give you 3 examples of presumptions in Veterans Benefits Law.

  Why is this information important?

  Because in your VA claim you are going to – eventually – run into a legal or fact issue which will be resolved by a legal presumption.

  Most folks think that presumptions are hard, solid conclusions: once a Veteran establishes, for example, that they were exposed to Agent Orange, certain medical conditions are going to be PRESUMED to have resulted from that exposure, but this doesn’t guarantee that service connection will result.

  To understand why not, you will need to understand the rules of legal presumptions.

What is the Rule of Legal Presumption?

  In the law, “presumptions” exist to reduce the need to have protracted legal and factual debates about issues  that commonly arise.

  So, when a particular fact pattern occurs with great frequency, the law is likely to come up with a “presumption” that allows a judge (or fact-finder) to presume that certain facts mean certain things.

  Here it is in Plain English:

Example 1:  If it looks like a duck, and quacks like a duck, we’re going to presume it is a duck.

Example 2:  If  you saw your significant other was going into the local pub at 5:30pm on a Friday, it would be reasonable to presume that he/she had a drink or dinner there (since that’s what people usually do in bars/pubs).

Example 3: If I have an employee that has been asked to be at work at 9am, and they routinely fail to show up at 9am, I’m going to presume that they don’t want to work for me.

  Get the concept?  Here’s the trick.

Presumptions aren’t proof.
  There’s a possibility that something that looks like a duck and quacks like a duck is not a duck.  It could well be a very well designed duck decoy for hunting purposes.

  Referring back to Example #2, above, there’s a possibility your significant other went into the pub to see if he/she left his wallet in there the night before.

  Or in Example #3, there’s a possibility that my employee’s watch is on the wrong time zone, and they are actually EARLY to work.

  The folks being “hurt” by the legal presumption get an opportunity to rebut that presumption with evidence or argument to the contrary.

3  Legal Presumptions in Veterans Benefits Law.
 In the world of Veterans Benefits, there are many  presumptions, but 3 very common ones stand out: the Presumption of Regularity, the Presumption of Soundness, and the Presumption of Aggravation.    

  Today, I want to tell you about the Presumption of Regularity.
  Remember, this is a high level overview, meant to familiarize you with the concept of “presumptions”.

1) Legal Presumption of Regularity.
  This presumption invariably cuts in the VA’s favor every single time.   It basically says that when the VA has a system for doing a routine task (mailing notices, sending out forms, etc), the law will presume that the VA followed its regular process in your claim.

  For example, if you try to argue that the VA didn’t file something in your C-File, didn’t mail you something, or didn’t acknowledge receipt of a filing in your claim, the law will PRESUME that the VA did follow their regular procedure, so long as the VA shows that they acted consistent with their regular operating procedure.

  There are ways to rebut this presumption, but make sure that the VA shows both the regular procedure and argues that they followed it.  If not, then they may not be entitled to the presumption in the first place.

  As I said above, this presumption invariably cuts against the Veteran every time.
  I hate this presumption in Veterans Benefits Law – there is no such thing as “regularity” in ANYTHING that the VA bureaucracy does – other than delaying claims and making things go slower.  It often seems like the VAs approach is that of the snail getting a ride from a turtle:

  We all know that the VA’s regular practice is to lose, shred, hide, alter, misplace, ignore or otherwise keep evidence from getting into the RIGHT file.  However, the law seems to presume something that is not reflected in reality.  The law seems to presume that the VA is not as incompetent a bureaucracy as it really is. (I might be tempted to argue that, in the VA claims world, Lady Justice is blind-folded so she can’t see her own shortcomings). 

2) Legal Presumption of Soundness.
 This presumption essentially states that a service-member is presumed to have been of sound medical condition at entrance into the military, unless something is otherwise “noted” on the entrance physical exam. 

3) Legal Presumption of Aggravation.  
 This presumption basically states that military service is presumed to have aggravated a pre-existing military condition, unless the VA can show that the change in severity of that pre-existing condition was due to the normal progression of the particular disease. 

How the VA often tries to trip Veterans up on the Presumption of Soundness

  The VA will sometimes deny your claim because they did not give you the presumptions mandated by the law.

The VA Ignores the Fact that a Medical Condition was not  “Noted” on Your Enlistment Physical.

  All Veterans, both enlisted and officers, have been through the Military Entrance Processing Station (MEPS) to make sure we are fit for service.

  Military recruiters send several hundred recruits through MEPS. The recruit is at the MEPS  all day (if not multiple days) going through the medical process — usually including being examined by the world’s oldest doctors!

  Two categories of medical information is recorded on your enlistment physical: Medical history and the actual Medical Examination.

  Medical “history” is provided by the recruit.
  The recruit fills out multiple pages of documents checking boxes and making notes about any medical conditions – diagnosed or not.  The recruit is constantly reminded  by MEPS personnel that they had better tell the truth.

  If the MEPS doctor has additional questions about the recruit’s medical history, he will usually ask the recruit to explain and make notes based on the recruit’s information.

 The second category – the Medical “Examination” – is conducted by the MEPS staff. Eye exam, flat feet exam, hernia exam, etc.

 Sometimes, the MEPS will send the recruit for an external consult if there is a question about a condition. Either way, the examination results are “NOTED” by the MEPS doctor.

  Did you catch the difference?The doctor makes notes about the recruit’s history.
  The doctor “NOTES” results of the assorted physical examinations conducted at the MEPS. Two distinct notes with legal differences. The examination notes are the condition(s) that are “noted” officially.

 Take a look at your entrance physical – is there any notation that there was an exam by a doctor?  If not, and the only reference to medical issues are on the form you filled out (that lists all those diseases and illnesses), then no condition was NOTED on your entry to military service.

 The Law Requires the VA to Presume You Were in “Sound Condition”
  If your condition was not “NOTED” on your MEPS entrance physical, you are entitled to the Presumption of Sound Condition in your VA Claim – sometimes called the Presumption of Soundness.

  Again, the “noted” condition must be the result of the MEPS doctor’s personal examination — not based on his notes from your regurgitation of your medical history.
  So if the VA denies your claim because your condition existed prior to service, the VA MUST rebut the presumption of sound condition with “clear and unmistakable evidence” that demonstrates that the 
condition exited prior to service.
  In other words, the VA can’t just claim it existed prior to service, nor can the VA just point to ambiguous evidence that only suggests the condition may have existed prior to service.

  The VA must find clear and unmistakable evidence that the very condition did indeed exist prior to service. To me, that should leave no doubt.
But it gets better…

Extra Benefit – Proof of non-Aggravation
  If the VA claims that your condition existed prior to service, there are actually TWO hurdles that the VA must overcome.

  Not only does the VA have to rebut the presumption of sound condition with “clear and unmistakable evidence” that demonstrates that the condition existed prior to service, but the VA also has to demonstrate that your condition was not aggravated by your military service as well.

 The VA can’t just jump one hurdle or the other. The VA MUST rebut BOTH elements of the presumption.

  Lets say the VA proves with clear and unmistakable evidence that your condition existed prior to your military service.

  They might be able to do this through medical records from your childhood or because your MEPS physical actually detected that very same condition at enlistment. Well, the VA still has more work to do before they can deny your claim.

  The VA must then find clear and unmistakable evidence that your military service did not aggravate that same pre-existing condition.  That’s HUGE – not only does the VA have to prove a negative, but they have to prove it to one of the highest legal burdens of proof – clear and unmistakable evidence.

  This burden – clear and unmistakable evidence – means that an objective person looking at the facts would have to be left with the impression that no reasonable person would have found that military service aggravated a pre-existing condition.

  Stop for a moment, and think that through. How on earth can the VA prove that? They can’t, they know it, and this is why they make so many mistakes applying the presumption of soundness and the presumption of aggravation.

  Here’s how the Presumption of Soundness works in a real situation.
 I had a client that was denied service-connection for “bipolar disorder.”
 The VA claims his “bipolar disorder” existed prior to service.   (The condition was not “noted” on the MEPS exam so the VA must prove that it existed prior to service.)
 To do this, the VA points to a pre-service diagnosis for “explosive disorder.” Our argument is that they did not prove “Bipolar Condition” existed prior to service so the VA did not clear the first hurdle. But let’s say the BVA screws up the analysis and agrees that “bipolar disorder” and “explosive disorder” are the same mental condition (a proof that would not happen, because they are distinct and separate mental health conditions).

   We would, in that hypothetical situation, say: “Okay VA – you proved his mental condition existed prior to service – but –  you failed to prove with clear and unmistakable evidence that his military service did not aggravate his mental condition (whether it was bipolar disorder or explosive disorder).

   Don’t Let the VA Win By Going Around the Hurdles.
  It’s easy to win a hurdles race if you don’t go over the hurdles.  It’s called cheating.

  The “Horn” case, discussed in detail in the “10 Cases” Guidebook, shows how even after getting a “stern talking to” from the Veterans Court, the VA continues to misapply these 2 presumptions.

  So, if the VA is denying your claim on the grounds that your medical condition pre-existed service – whether or not it ACTUALLY pre-existed service – you are going to want to learn about the Horn case, and understand who has to overcome which presumptions – you or the VA.

  Then, Get your VA C-File and take a fresh look at your claim.
 Is the condition you’re claiming service connection also on your MEPS medical documentation?

  If not, make the VA rebut  BOTH elements of the Presumption of Soundness.
to learn more.

Kazmierczak and Kazmierczak