[Reprinted here with permission from Veterans Law Blog]5 years ago, in 2012, I first wrote about an issue that has been one of my major “preaching” points in VA Claims and Appeals.
I pointed out, in a post called “CAVC lashes out at VA: “Again, you failed to follow the law.” that the VA had for a very long time been forcing Veterans to prove something that by law the VA was required to prove.
In that case, it was the second prong of the Presumption of Soundness – the VA could in some situations overcome the Presumption of Soundness by showing clear and unmistakeable evidence that the condition was NOT aggravated by military service.
The Court’s Stern Warning to the VA about the Presumption of Soundness.
Pre-Horn, the VA wasn’t following the law – they were forcing Veterans to prove that the condition WAS aggravated by military service.
The Court was really frustrated by this. Here is how the Veterans COurt closed the Horn opinion – believe me when I tell you that a) this language is stern language from any Court, no less the Veterans Court, and b) stern language from a court merits careful and cautious attention from all litigants:
“The problem has been that VA has yet to step up to its responsibility under that law and its own regulation. Further, there is no immediate cost to the taxpayers in this particular reversal, because the veteran has only received the benefit of the presumption soundness. To obtain service
connection, he still would need to establish that he has a current disability and a nexus to the inservice aggravation. Nonetheless, any cost to taxpayers is dwarfed by the prospect of future cases generated by the misperception that the Court will tolerate the continuance of defective evidentiary development in presumption of soundness cases.” )Internal Citations Omitted)
Ouch! What the Court is saying is that they: a) are not going to tolerate continued failure to improperly shift the burden of proof in presumption of soundness cases to the Veteran, and b) allowing cases to rise to the Veterans Court is a burden on the taxpayer and a waste of judicial resources.
If I was the VA, I would have taken note. Serious note.
Defective Analysis of Presumption of Soundness May Form the Basis of a CUE Claim or Motion.
But they didn’t, and so for the last 5 years, I have been telling you that, if the VA attempts to rebut the presumption of
soundness by arguing that you failed to provide (or the record lacks) evidence that any condition pre-existing service was aggravated by military service, appeal immediately.
Many of you did just that.
A lot of you took this knowledge and went a step further.
You argued that old decisions – even though final – that contained this error may contain CUE, and should be reopened and readjudicated.
I know a lot of you have cases like this in the appeals pipeline: that a final VA Ratings Decision contains CUE because it shifted the burden of rebutting the presumption of soundness to you.