7.05 Aggravation Of Preservice Disability

[Guest allan]

Veterans Benefits Administration M21-1, Part VI

Department of Veterans Affairs Change 119

Washington, DC 20420 September 28, 2004

Veterans Benefits Manual M21-1, Part VI, "Rating Board Procedures," is changed as follows:

Pages 7-I-3 through 7-I-4: Remove these pages and substitute pages 7-I-3 through 7-I-4 attached.

Paragraph 7.05a is revised to state that when no preexisting condition is noted at entrance into service, the burden then falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence that shows that the disease or injury existed prior to service and that it was not aggravated by service.

By Direction of the Under Secretary for Benefits Renée Szybala, Director

Compensation and Pension Service

Distribution: RPC: 2068

FD: EX: ASO and AR (included in RPC 2068)

LOCAL REPRODUCTION AUTHORIZED

September 28, 2004 M21-1, Part VI

Change 119official records to ensure that the scar or scars are in fact the residuals of wounds in service. If there are any confusing data in this respect in the physical examination report, check official records against the medical examiner's statements to establish the facts.7.03 DISABILITIES RELATED TO COMBAT

a. General. Title 38 CFR 3.304(d) states that satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. This regulation is derived from 38 U.S.C. 1154(b), and lightens the evidentiary burden with respect to disabilities alleged to be the result of combat service.

b. Three-Step Analysis. There are three steps in applying this rule. The first step is to determine whether evidence submitted by the veteran, when considered alone, is satisfactory. Satisfactory evidence generally means evidence which is credible. In determining whether evidence is credible, it is proper to consider internal consistency and plausibility. Statements which contradict other evidence of record may be regarded as unsatisfactory. Second, it must be determined whether the evidence is consistent with the circumstances, conditions, or hardships of such service. If the veteran satisfies both of these requirements, a factual presumption arises that the alleged disease or injury was incurred or aggravated during service. Since 38 U.S.C. 1154(b) stipulates that this presumption can be rebutted by clear and convincing evidence to the contrary, the third step requires a determination as to whether there is such contrary evidence. (Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996.)7.04 DEFINITION OF INJURY--38 U.S.C. 101(24) AND 38 CFR 3.6(a)

Active service is defined as including any period of inactive duty for training during which the claimant was disabled or died from an injury incurred or aggravated in line of duty. Nontraumatic incurrence or aggravation of a disease process during a period of inactive duty training is not defined as an injury, except for the following: an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurs during such training or while proceeding directly to or returning directly from such training. (See 38 CFR 3.6) Additionally, if the evidence establishes that an individual suffers from a disabling condition as a result of the administration of an anthrax vaccine during inactive duty training, the individual may also be considered disabled by an injury. (See GCPREC 4-2002) 7.05 AGGRAVATION OF PRESERVICE DISABILITY

A preexisting injury or disease may be considered to have been aggravated by active military 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 condition (38 CFR 3.306). Additionally, in Splane v. West, 2216 F. 3d 1058(2000), the United States 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 became manifest to a degree of disability of 10 percent or more within the presumptive period after service. Such 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 (38 CFR 3.307). Always address the issue of aggravation when service connection for a preservice disability is claimed. If service connection by aggravation is not found, the reasons and bases section of the rating should support the decision with relevant findings from the medical record before, during, and after service, demonstrating that the condition which pre-existed service has not increased in its severity.

7-I-3

M21-1, Part VI September 28, 2004

Change 119a. Consider a veteran to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service. When no preexisting condition is noted at entrance into service, the burden then falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence that shows the disease or injury existed prior to service and that it was not aggravated by service. (38 CFR 3.304(b))

b. Aggravation should not be conceded merely because a veteran's condition was in remission at the time of entry on active duty. The baseline for determining whether there is aggravation of a preexisting disability 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. 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.

c. 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. (38 CFR 3.306(b)(1))7.06 CLAIMS FOR SECONDARY SERVICE CONNECTION BY AGGRAVATION

a. Under the provisions of 38 CFR 3.310(a), disabilities which are proximately due to or the result of a service-connected condition will be service connected. An increase in nonservice-connected disability caused by aggravation from a service-connected disability will also be service connected under 38 CFR 3.310(a). (Allen v. Brown, 7 Vet. App. 439 (1995).)

b. In order to adjudicate a claim for secondary service connection for an incremental change in an otherwise nonservice-connected disability, first establish the baseline level of nonservice-connected disability and the level of additional disability which is considered proximately due to the service-connected disability. Request a medical examination, including review of the claims folder, for this purpose. Identify for the examiner the evidence of particular relevance in the claims file. Request that the examiner separately address each of the following medical issues. A medical report that fails to address these issues will not be considered sufficient for rating this type of claim:

(1) The baseline manifestations which are due to the effects of nonservice-connected disease or injury;

(2) The increased manifestations which, in the examiner's opinion, are proximately due to service-connected disability based on medical considerations;

(3) The medical considerations supporting an opinion that increased manifestations of a nonservice-connected disease or injury are proximately due to service-connected disability.

c. An examination which fails to identify baseline findings, or the increment of increased disability due to service-connected causes, would not be adequate for rating purposes.

d. When all potentially relevant records have been obtained, or it is determined that no further evidence can be obtained, order an examination. The examiner must have all available evidence for review when providing an opinion on the issues of aggravation and the degree of increased disability.

7-I-4

Source: http://www.warms.vba.va.gov/Admin21/M21_1/PART6/chg119.doc

Edited January 28, 2007 by allan