VA Aggravation Claims: What Veterans Need to Know

CCK Law: Our Vital Role in Veterans Law

A VA aggravation claim allows veterans to receive disability compensation for how much a medical condition was worsened by military service or by a service-connected disability, even if the worsened condition was not caused by service.

In this article, you will learn all about VA aggravation claims, including the two types, the evidence needed to support each, and more.

Key points of this article include:

• There are two types of VA aggravation claims: one for conditions that worsened during service, and one for conditions worsened after service by a service-connected disability.
• VA generally presumes soundness of health upon entry into service, shifting the burden onto VA to prove that service is not the reason a condition was worsened.
• VA compensates only for the increase in disability caused by aggravation — not the underlying condition itself — so it is critical to establish a baseline level of severity before and after the effects of service.

Aggravation of a Preexisting Condition

“The first kind of aggravation is when you have a condition before you joined the military, and your service made it worse,” says Emma Peterson, partner at CCK Law. “VA calls this ‘aggravation of a preservice disability.’”

According to 38 CFR § 3.306, “a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.”

Therefore, if a preexisting condition worsened during service, 38 CFR § 3.306 presumes that service aggravated it. That worsening can be treated as service connected.

For example:

• Say a veteran had a minor back condition that was noted on their service entrance exam.
• During service, the veteran is involved in a car accident that exacerbates their preexisting back condition.
• In this case, the veteran may be able to file a disability claim arguing that their military service aggravated their preexisting back condition.

Secondary Service Connection Caused by Aggravation

The second kind of VA aggravation claim is secondary service connection caused by aggravation.

“This is when a condition you are already service-connected for makes a separate, non-service-connected condition worse,” says Emma Peterson. “This is also eligible for compensation. The rule that applies here is 38 CFR section 3.310(b), and it grew out of a court decision called Allen v. Brown.”

For example:

• Say a veteran has a service-connected knee injury and separate, non-service-related hip arthritis.
• Due to their service-connected knee injury, the veteran must change how they walk to account for their knee pain. Over the years, this altered gait puts extra strain on their hip, and their hip arthritis gets worse.
• In this case, the veteran could file a disability claim for hip arthritis aggravated secondarily by their service-connected knee injury. If their claim is successful, the worsening of their hip arthritis could be added to their overall disability rating, even though the arthritis was not directly caused by service.

The Worsening Does Not Need to Be Permanent for VA Secondary-Aggravation Claims

An important note under this second type: In Ward v. Wilkie, the Court of Appeals for Veterans Claims (CAVC) held that a secondary aggravation claim under § 3.310(b) does not require the worsening to be permanent.

In other words, for secondary service connection claims for aggravation, even a temporary worsening of a condition could be grounds for a higher disability rating from VA. However, this does not apply to aggravation claims where a preexisting condition was worsened by service.

How Do VA Aggravation Claims Work?

Once a veteran submits VA Form 21-526EZ to apply for VA disability for aggravation, VA will start an evaluation of the veteran’s claim. This involves several important procedural steps:

Establishing a Preexisting Condition

If VA or the veteran provides evidence that the relevant condition predated the veteran’s entry in service (for example, if the condition was noted on the veteran’s service entrance exam), then the claim cannot qualify for direct service connection and must proceed as an aggravation claim.

At this point, VA’s analysis will be about the extent the veteran’s service worsened their condition.

Presumption of Aggravation

When the presence of a preexisting disability and an increase in that disability are established, VA should presume the increase was due to aggravation by service under the following circumstances:

• If the veteran shows, usually through medical evidence or expert opinions, that the preexisting condition worsened during service; AND

• If VA cannot provide clear and unmistakable evidence that the increase in severity is due to the natural progression of that condition. VA compensates veterans only if the disability worsened past the extent it would have worsened without any service at all.

Watch CCK Law Partner Maura Black and VA-accredited attorney Ethan Muckelbauer discuss the different ways veterans can establish service connection:

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What Is the Presumption of Soundness and How Does It Affect Aggravation Claims?

“When you enter service, the law presumes you were in sound condition, unless a problem was written down on your entrance exam,” says CCK Law partner Emma Peterson. “This is called the ‘presumption of soundness.’”

The presumption of soundness, established in 38 USC § 1111, prevents VA from pointing to vague or minor symptoms in the veteran’s pre-service past and using those as evidence that a condition was preexisting in order to potentially deny a claim.

Because of this presumption, any condition not present during the veteran’s entrance exam can be pursued through a direct service connection claim, instead of aggravation.

When Does the Presumption of Soundness Not Apply?

VA can still attempt to rebut the presumption of soundness if it believes the presumption should not apply to a veteran’s claim. However, to do this successfully, VA must meet a high standard of proof with the evidence it presents.

The most common way that VA defeats the presumption of soundness is if a condition relevant to a veteran’s disability claim was noted on their entrance exam into military service. In this case, VA will likely be successful in arguing that a veteran’s disability predated their military service.

If this happens, then the veteran can only claim compensation for the amount that military service aggravated their preexisting conditions.

If the veteran is successful in demonstrating that their preexisting condition has worsened, VA may then attempt to prove that the veteran’s condition was worsened not by their service, but by the natural progression of their disease or disability.

If VA cannot prove this, then the aggravation claim will likely be successful, resulting in a new or increased VA disability rating.

Watch CCK Law Partner Amy Odom cover how veterans can establish service connection through aggravation:

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How Does VA Rate Aggravated Conditions?

When a condition becomes service connected based on aggravation, VA assigns a disability rating that reflects only the increase in disability attributable to service — not the full severity of the condition.

Here is how that happens:

1. First, VA adjudicators review the veteran’s medical records from the time they entered the military. The adjudicator then uses the Veterans Affairs Schedule for Rating Disabilities (VASRD) to determine what rating the condition would have received at that time if it had been rated.
2. Next, the adjudicator looks at the current state of the condition and decides what rating it would be given now.
3. The earlier rating is subtracted from the current rating to establish the disability percentage that reflects how much the preexisting condition worsened over the course of military service. (EXCEPTION: The preexisting rating is not subtracted if the current rating is total (100 percent.)
4. That final percentage becomes the assigned disability rating.

For example:

• Say that a veteran’s service entrance exam notes that the veteran had a preexisting migraine condition.
• During service, their migraine condition significantly worsens after they are exposed to toxins from a military burn pit. After leaving service, the veteran files a claim for aggravation of a preexisting condition due to their worsened migraines.
• As part of its evaluation of the claim, VA consults the veteran’s entrance exam records and, based on the examiner’s notes, determines that before entering service, the veteran’s migraine condition would have received a disability percentage rating of 10 percent.
• Now, using more recent medical evidence supplied by the veteran, VA determines that the veteran’s migraine condition has risen to 50 percent disabling as an apparent result of burn pit exposure.
• Here, VA will not compensate the veteran at the 50 percent level. Instead, it will subtract the veteran’s original estimated percentage (10 percent) from the updated percentage (50 percent). This leaves them with a difference of 40 percent.
• Because VA only compensates veterans for the amount that their condition worsened during service, the veteran will be compensated at the 40 percent level for aggravation of their preexisting condition.

IMPORTANT NOTES:

• If VA is unable to determine a rating for the veteran’s preexisting condition at the time they entered service, VA generally does not make a deduction (i.e., treats the preexisting condition’s rating as zero percent before service).
• If the disability is now rated total (100 percent), no deduction is made for the pre-service baseline. See 38 CFR § 3.322(a) and § 4.22.

What Evidence Can Help Prove a VA Aggravation Claim?

If a veteran is considering a VA aggravation claim, their older medical records will be important evidence to secure. This is because VA only compensates for the amount that a veteran’s condition is worsened by service or a service-connected disability. To calculate this, VA first needs a baseline, which typically takes the form of medical evidence showing how severe a condition was before the aggravation began.

In other words, these older medical records help set the starting point, and VA subtracts that baseline from the current level of severity to determine what, if any, compensation is appropriate.

This is why baseline severity is so important to VA aggravation claims. Without a baseline, VA may not concede that aggravation occurred at all.

Some examples of older medical records and other types of evidence that could help a VA aggravation claim include:

• Medical opinions — For both types of aggravation, a medical opinion is usually a critical piece of evidence. A physician who can explain, in writing, how service or a service-connected condition made the condition worse — and can distinguish that worsening from the natural progression of the disease — is often critical for a claim’s success.
• Entrance examination records — These records establish what conditions, if any, were noted when the veteran entered service. They are the basis for determining whether the presumption of soundness applies.
• Service treatment records — Records documenting changes in a condition’s severity during active duty can help show that worsening occurred in service.
• Post-service medical records — For secondary aggravation claims, records showing the baseline severity of the non-service-connected condition before it was worsened by the service-connected disability can be important under 38 CFR § 3.310(b).
• Lay evidence — Lay statements from the veteran, family members, or fellow service members describing observable changes in the severity of a condition can also support a claim.

Frequently Asked Questions

Can I Earn a VA Rating for Aggravation of a Mental Health Condition?

Yes, VA ratings for aggravation of mental health conditions are possible.

A preexisting mental health condition (e.g., depression or PTSD) can be service connected if military service worsened it beyond its natural progression.

For example:

• Say a veteran had mild anxiety before enlisting.
• During the veteran’s service, they witness an IED explosion, the psychological stress of which causes their anxiety to become more severe.
• If medical evidence supports that the increase in severity was caused by service rather than the natural course of the condition, an aggravation claim may be appropriate.

VA evaluates mental health conditions under 38 CFR § 4.130, which uses the General Rating Formula for Mental Disorders. The same subtraction approach applies: VA compensates for the increase in severity caused by service, not the baseline level of the condition that existed before service.

Importantly, these regulations may not apply to some personality disorders or developmental defects, as these are generally not considered diseases or injuries for the purposes of VA compensation.

Can I Earn a VA Rating for Aggravation of a Preexisting Condition Due to Medication?

Yes, a VA claim for aggravation of a preexisting condition due to medication is possible under the right circumstances.

When a service-connected disability requires treatment, and the medication used to treat that condition worsens a separate non-service-connected condition, that added worsening may be eligible for secondary service connection under 38 CFR § 3.310.

A well-known example involves gastrointestinal conditions. For instance:

• Say a veteran with a service-connected condition requires long-term use of nonsteroidal anti-inflammatory drugs (NSAIDs).
• Over time, the extensive use of NSAIDs causes a gastrointestinal condition (e.g., GERD) to develop or worsen as a side effect of that medication.
• In such a case, the gastrointestinal condition may be service connected on a secondary basis, either on a direct causation theory or as an aggravation claim.

Veterans should note that medical evidence connecting the service-connected condition, the treatment, and the worsening of the separate condition is essential in these claims.

What is the Difference Between a VA Aggravation Claim and a Secondary Service Connection via Aggravation Claim?

Both of these claims fall under the umbrella of aggravation, but they apply in different situations.

An aggravation of a preexisting condition claim applies when a condition existed before service and worsened during active duty (governed by 38 CFR § 3.306).

A secondary service connection claim by aggravation applies when a service-connected disability worsens a separate, non-service-connected condition after service (see 38 CFR § 3.310(b)).

Can VA Deny an Aggravation Claim Based on Natural Progression?

Yes, if it finds clear and unmistakable evidence that the increase in disability was caused solely by the natural progression of the condition rather than by service or a service-connected disability.

For preexisting condition claims, this finding must be based on specific, affirmative evidence, rather than mere speculation on VA’s part. This is because regulations surrounding the presumption of aggravation generally favor the veteran when worsening occurred during service.

What is the Difference Between VA Aggravation and a Direct Service Connection Claim?

A direct service connection claim is appropriate when a condition was caused by service.

An aggravation claim is appropriate when the condition predated service or is a separate non-service-connected condition, but service or a service-connected disability made it worse.

If a condition was not noted on the entrance exam and VA cannot prove it predated service, the claim may be analyzed as one for direct service connection.

Can I File Both a Direct Service Connection Claim and an Aggravation Claim for the Same Condition?

Yes, veterans may present multiple “theories” of service connection for the same condition. If the evidence supports both a direct connection and an aggravation argument, both theories can be raised in the same claim or appeal. VA is generally required to consider all reasonably raised theories of entitlement.

Consulting with a VA-accredited representative can help ensure that all relevant arguments are included in a VA aggravation claim or appeal.

Do Aggravation Claims Require a Compensation and Pension (C&P) Exam?

VA often schedules a C&P examination to gather medical evidence about the current severity of a condition and any nexus link to service or a service-connected disability.

Whether VA orders an exam depends on the specific claim and the evidence already in the record. For instance, a strong independent medical opinion submitted with the claim may reduce reliance on a VA examiner’s conclusions.

Did VA Deny Your Aggravation Claim? CCK May Be Able to Help