Presumption of Sound Condition:

BVA Citation Nr: 0709792

Every veteran who served in the active military, naval, or 
air service after December 31, 1946 is 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, or where clear and unmistakable evidence 
demonstrates that the injury or disease existed before 
acceptance and enrollment and was not aggravated by such 
service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). Only those 
conditions recorded in examination reports can be considered 
as "noted," 38 C.F.R. § 3.304(b) (2006), and a history of 
preservice existence of conditions recorded at the time of 
examination does not constitute a notation of such 
conditions. Id. § 3.304(b)(1).
 
To rebut the presumption of sound condition for conditions 
not noted at entrance into service, VA must show by clear and 
unmistakable evidence both that the disease or injury existed 
prior to service and that the disease or injury was not 
aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 
Fed. Reg. 23027 (May 4, 2005). Concerning clear and 
unmistakable evidence that the disease or injury was not 
aggravated by service-the second step necessary to rebut the 
presumption of soundness-a lack of aggravation may be shown 
by establishing that there was no increase in disability 
during service or that any increase in disability was due to 
the natural progress of the preexisting condition. Wagner v. 
Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. 
§ 1153 (West 2002). If the presumption of sound condition is 
not rebutted, "the veteran's claim is one for service 
connection." Wagner, 370 F.3d at 1096. That is to say, no 
deduction will be made for the degree of disability existing 
at the time of the veteran's entry into service. Id.; 
38 C.F.R. § 3.322 (2006).

BVA Citation Nr: 0708934

The burden of proof is on the government to rebut the 
presumption of sound condition upon induction by clear and 
unmistakable evidence showing that the disorder existed prior 
to service, and if the government meets this requirement, by 
showing that the condition was not aggravated in service. 
Vanerson v. West, 12 Vet. App. 254, 258 (1999); Kinnaman v. 
Principi, 4 Vet. App. 20, 27 (1993). The Court has defined 
the word "unmistakable" as an item which "cannot be 
misinterpreted and misunderstood, i.e., it is undebatable." 
Vanerson, 12 Vet. App. at 258 (quoting WEBSTER'S NEW WORLD 
DICTIONARY 1461 (3rd Coll. Ed. 1988)). See also Crippen v. 
Brown, 9 Vet. App. 412 (196).