VA Service Connection Based on Aggravation
CCK Law: Our Vital Role in Veterans Law
Service connection refers to when a veteran’s disability or death was incurred during or aggravated by his or her military service. When a condition is service-connected, VA will assign a disability rating based on its severity. This disability rating will then determine the amount of monthly compensation a veteran receives. Therefore, service connection is a very necessary part of the VA disability claims process. Importantly, there are multiple ways in which veterans can establish service connection, including service connection based on aggravation.
VA’s Definition of Aggravation
VA will compensate veterans for medical conditions that existed at the time of entry into service that were made worse or “aggravated” by service. 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”. However, the burden falls on the veteran to establish aggravation. The task for VA in evaluating a service connection based on aggravation claim is to find whether the veteran has shown an increase in disability during service. If VA finds aggravation, the second task is to consider whether the increased disability is due to the natural progression of the disease.
Establishing a Preexisting Condition
VA begins its evaluation of claims for service connection based on aggravation under a presumption of soundness whereby, unless evidence indicates otherwise, it is presumed that veterans were in sound condition upon entry into service. If a servicemember has any conditions prior to entry into service, it should be noted on his or her entrance examination. However, if no conditions are noted, then the presumption of soundness applies. To rebut the presumption of soundness, VA must prove with clear and unmistakable evidence that the disease or injury existed prior to service and was not aggravated by service.
Presumption of Aggravation
When the presence of a preexisting disability and an increase in that disability are established, VA will presume that the increase is due to aggravation by service under the following conditions:
- The veteran shows, usually through medical evidence or expert opinions, that his or her preexisting condition worsened during service.
- The worsening progression of the preexisting condition is beyond the natural progression of that condition. Importantly, VA will only compensate veterans if the disability was worsened past the extent that it would have worsened had there been no service at all.
How VA Rates Conditions That Are Service-Connected Based on Aggravation
As mentioned above, when a condition becomes service-connected, VA assigns a disability rating to reflect the severity of the condition. For conditions that are service-connected based on aggravation, VA assigns disability ratings based on how much the condition has changed as a result of service. VA adjudicators will review the veteran’s medical records of the condition at the time the veteran entered the military. The adjudicator will then use the Veterans Affairs Schedule for Rating Disabilities (VASRD) to determine what evaluation the condition would have received at that time if it had been rated. Then, the adjudicator will look at the current state of the condition and decide what rating it would be given as is. The first rating is then subtracted from the current rating to establish a disability percentage that reflects how much the preexisting condition worsened over the course of military service. That final percentage becomes the disability rating that is assigned.
Genetic Conditions Aggravated by Service
Genetic and hereditary conditions can also become service-connected if they develop while a servicemember is in the military. Specifically, if a genetic condition develops while on active duty, then it is automatically considered to be service-connected unless it can be clearly proven that the condition would have developed at the same time and to the same degree whether the servicemember was in the military or not. In regards to rating genetic conditions aggravated by service, VA uses the same principle discussed above. However, instead of using the rating associated with the severity of the condition at the time the servicemember entered the military, VA uses the severity that the condition would have been if it had progressed normally. That percentage is then subtracted from the evaluation of the condition as it is for the final disability rating.
