Help Needed: Please Explain Aggravation Of A Pre Existing Injury

[Fat]

I am somewhat familiar with service connection by aggravation of a pre existing injury.

My question is does the "aggravation event" have to be deterioration of the injury.

I was allowed to enter the military after previously (two years prior) having surgery on my knee.

During my service time, the knee became very weak and started to buckle.

The doctor noted laxity.

Do I have a sound basis for filing a claim and asking for service connection by "aggravation of a pre existing injury".

[Vync]

Without seeing the exact wording of your doc notes, it is hard to indicate if you have a sound basis. It does sound like it might meet the definition of aggravation.

Ratings like this would be based on how much worse off you are now versus when you joined, or the difference. The entrance, exit, and current/C&P exams would come into play.

[USMC_VET]

Vync is right. usually their is a presumption that you are sound of body and mind before entering the service (with the burden being on the VA to prove otherwise), unless there is something noted in your record. You do have this noted, so what your case will hinge on is your records.

Go and get copies of your entrance and exit examinations. get copies of private (everything, everything, everything) records regarding your knee before you joined. You will to show that after your surgery you were say at 98% (just a random number) operating level in terms of what you could do and lack of pain, and that because of service or better a specific incident in service you knee was made worse and you got out at say 75% operating level and now you are at 50%, etc

here is the CFR guideline on aggravation of injuries

§3.306 Aggravation of preservice disability.

(a) General. 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. (Authority: 38 U.S.C. 1153)

(b) Wartime service; peacetime service after December 31, 1946. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.

(1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service.

(2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability. (Authority: 38 U.S.C. 1154)

© Peacetime service prior to December 7, 1941. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service.

[26 FR 1580, Feb. 24, 1961; 57 FR 59296, Dec. 15, 1992]

Supplement Highlights reference: 6(3).

----------------------------------------------------

Here is the excerpt from the M-21 guide for raters about aggravation of injury claims...

Determining In-Service Aggravation of Pre-Service Disability

Introduction

This topic contains information on determining aggravation of pre-service disability, including

• considering the presumption of soundness at entry into service
• the records needed to determine baseline level of disability
• determining whether a preexisting disability was aggravated by service
• considering flare-ups of preexisting injury or disease
• considering the usual effects of medical or surgical treatment, and
• additional considerations under Splane v. West.

Change Date

September 15, 2011

a. Considering the Presumption of Soundness at Entry Into Service

Presume the Veteran was in sound condition when examined, accepted, and enrolled for service, except when defects, infirmities, or disorders are noted at entrance into service.

When no preexisting condition is noted at entrance into service, the burden falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence showing that the disease or injury

• existed prior to service, and
• was not aggravated by service.

Note: The presumption of soundness applies only when the Veteran underwent a physical examination at the time of entry into the service on which the claim is based.

Reference: For more information on the presumption of soundness, see

• 38 CFR 3.304(b), and
• M21-1MR, Part IV, Subpart ii, 2.B.3.d.

b. Records Needed to Determine Baseline Level of Disability

The baseline for determining whether a preexisting disability was aggravated by service is in all of a Veteran's medical records for that condition, not just those covering the period of enlistment and entry on active duty.

Continued on next page

5. Determining In-Service Aggravation of Pre-Service Disability, Continued

c. Determining Whether a Preexisting Disability Was Aggravated by Service

Under 38 CFR 3.306, consider a preexisting injury or disease to have been aggravated by active military service where there is an increase in disability during active military service, unless there is a specific finding that the increase in disability is due to the natural progress of the injury or disease.

Exception: In claims based on active duty for training, direct evidence is required to establish aggravation (see Smith (Valerie Y.) v. Shinseki, 24 Vet.App. 40, 44 (2010)). The provisions of 38 CFR 3.306 do not apply.

Notes:

• Always address the issue of aggravation when service connection for a preexisting disability is claimed.
• If service connection is not found, indicate in the Reasons for Decision part of the rating decision the relevant findings from the medical records before, during, and after service that demonstrate that the condition which existed prior to service had not increased in severity.

d. Considering Flare-ups of Preexisting Injury or Disease

Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened.

Do not concede aggravation merely because a Veteran’s condition was in remission at the time of entry on active duty.

e. Considering the Usual Effects of Medical or Surgical Treatment

As required under 38 CFR 3.306(b)(1), unless a disease or injury that was incurred prior to service is otherwise aggravated by service, do not establish service connection for the usual effect of medical or surgical treatment in service to correct or improve the condition, such as postoperative scars and/or absent or poorly functioning parts or organs.

f. Additional Considerations Under Splane v. West

In Splane v. West, 216 F.-3d 1058 (Fed. Cir. 2000), the U.S. Court of Appeals for the Federal Circuit held that 38 U.S.C. 1112(a) establishes a presumption of aggravation for chronic diseases that existed prior to service but first manifested to a degree of disability of 10 percent or more within the presumptive period after service.

Under 38 CFR 3.307, this presumption may be rebutted by affirmative evidence to the contrary or evidence to establish that such disability is due to an intercurrent disease or injury suffered after separation from service.

What your case will hinge on is how they considered you when you got in and when you got out AND whether or not the worsening of your condition (how you are now) is BECAUSE of military service or whether you would be like this anyways due to the "natural progression" of the disease, ie are you not feeling good because the military made the condition worse than it would have naturally gotten worse had you not joined.

This will be a harder case to prove because of the pre existing condition. If i were you i would start compiling all the medical evidence you can find on yourself and go out and get yourself a good IMO/IME to support your case from a well regarded, board certified specialist.

[USMC_VET]

Vync is right. usually their is a presumption that you are sound of body and mind before entering the service (with the burden being on the VA to prove otherwise), unless there is something noted in your record. You do have this noted, so what your case will hinge on is your records.

Go and get copies of your entrance and exit examinations. get copies of private (everything, everything, everything) records regarding your knee before you joined. You will to show that after your surgery you were say at 98% (just a random number) operating level in terms of what you could do and lack of pain, and that because of service or better a specific incident in service you knee was made worse and you got out at say 75% operating level and now you are at 50%, etc

here is the CFR guideline on aggravation of injuries

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

§3.306 Aggravation of preservice disability.

(a) General. 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. (Authority: 38 U.S.C. 1153)

(b) Wartime service; peacetime service after December 31, 1946. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.

(1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service.

(2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability. (Authority: 38 U.S.C. 1154)

© Peacetime service prior to December 7, 1941. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service.

[26 FR 1580, Feb. 24, 1961; 57 FR 59296, Dec. 15, 1992]

Supplement Highlights reference: 6(3).

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Here is the excerpt from the M-21 guide for raters about aggravation of injury claims...

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Determining In-Service Aggravation of Pre-Service Disability

Introduction

This topic contains information on determining aggravation of pre-service disability, including

• considering the presumption of soundness at entry into service
• the records needed to determine baseline level of disability
• determining whether a preexisting disability was aggravated by service
• considering flare-ups of preexisting injury or disease
• considering the usual effects of medical or surgical treatment, and
• additional considerations under Splane v. West.

Change Date

September 15, 2011

a. Considering the Presumption of Soundness at Entry Into Service

Presume the Veteran was in sound condition when examined, accepted, and enrolled for service, except when defects, infirmities, or disorders are noted at entrance into service.

When no preexisting condition is noted at entrance into service, the burden falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence showing that the disease or injury

• existed prior to service, and
• was not aggravated by service.

Note: The presumption of soundness applies only when the Veteran underwent a physical examination at the time of entry into the service on which the claim is based.

Reference: For more information on the presumption of soundness, see

• 38 CFR 3.304(b), and
• M21-1MR, Part IV, Subpart ii, 2.B.3.d.

b. Records Needed to Determine Baseline Level of Disability

The baseline for determining whether a preexisting disability was aggravated by service is in all of a Veteran's medical records for that condition, not just those covering the period of enlistment and entry on active duty.

Continued on next page

5. Determining In-Service Aggravation of Pre-Service Disability, Continued

c. Determining Whether a Preexisting Disability Was Aggravated by Service

Under 38 CFR 3.306, consider a preexisting injury or disease to have been aggravated by active military service where there is an increase in disability during active military service, unless there is a specific finding that the increase in disability is due to the natural progress of the injury or disease.

Exception: In claims based on active duty for training, direct evidence is required to establish aggravation (see Smith (Valerie Y.) v. Shinseki, 24 Vet.App. 40, 44 (2010)). The provisions of 38 CFR 3.306 do not apply.

Notes:

• Always address the issue of aggravation when service connection for a preexisting disability is claimed.
• If service connection is not found, indicate in the Reasons for Decision part of the rating decision the relevant findings from the medical records before, during, and after service that demonstrate that the condition which existed prior to service had not increased in severity.

d. Considering Flare-ups of Preexisting Injury or Disease

Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened.

Do not concede aggravation merely because a Veteran’s condition was in remission at the time of entry on active duty.

e. Considering the Usual Effects of Medical or Surgical Treatment

As required under 38 CFR 3.306(b)(1), unless a disease or injury that was incurred prior to service is otherwise aggravated by service, do not establish service connection for the usual effect of medical or surgical treatment in service to correct or improve the condition, such as postoperative scars and/or absent or poorly functioning parts or organs.

f. Additional Considerations Under Splane v. West

In Splane v. West, 216 F.-3d 1058 (Fed. Cir. 2000), the U.S. Court of Appeals for the Federal Circuit held that 38 U.S.C. 1112(a) establishes a presumption of aggravation for chronic diseases that existed prior to service but first manifested to a degree of disability of 10 percent or more within the presumptive period after service.

Under 38 CFR 3.307, this presumption may be rebutted by affirmative evidence to the contrary or evidence to establish that such disability is due to an intercurrent disease or injury suffered after separation from service.

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

What your case will hinge on is how they considered you when you got in and when you got out AND whether or not the worsening of your condition (how you are now) is BECAUSE of military service or whether you would be like this anyways due to the "natural progression" of the disease, ie are you not feeling good because the military made the condition worse than it would have naturally gotten worse had you not joined.

This will be a harder case to prove because of the pre existing condition. If i were you i would start compiling all the medical evidence you can find on yourself and go out and get yourself a good IMO/IME to support your case from a well regarded, board certified specialist.

[Fat]

Thanks.............