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Service Connection


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Question

 Service Connection due to Aggravation vs Presumption of Aggravation.

Are these types of service connection the same?

1.  Service Connection due to Aggravation- service connected disability aggravates or worsens beyond natural progression a non service connected disease or disability.

2.  Presumption of Aggravation- veteran has pre existing condition noted on entrance exam. That condition is presumed aggravated by military service.

 

All answers are welcomed.

 

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Aggravation means the disability was made worse due to service. Presumption is not automatic just because something is noted on the entrance exam. It requires proof the condition actually worsened due to service. Caluza elements still apply.

In cases where aggravation is granted, they will deduct the pre-service level of disability from the current level of disability. If the VA cannot ascertain the pre-service level of disability in terms of the rating schedule, they cannot reduce the rating (I just won a CUE on this).  

Example 1: Service member reported fracturing their arm before service. Entrance exam X-ray confirms healed fracture. The VA finds no reports of treatment during service. Current C&P shows no disability. Aggravation denied because no worsening occurred.

Example 2: I reported having sinus problems prior to service. Entrance exam found nose to be normal. During service, I developed chronic allergic rhinitis and sinusitis with years of in-service treatment. C&P doc found presence of polyps and noted it obviously got worse during service. SC granted for 30% allergic rhinitis, but the VA reduced the rating by 10% due to pre-service aggravation because the C&P doc said I always had it.
  Now for the CUE part: 20 years later, I filed CUE due to 38 CFR 3.322(a) not being followed. The phrase "because I always had it" cannot be ascertained in terms of the schedule. VA acknowledged CUE, pre-service rating found to be 0%, and reversed the pre-service reduction.

 

Here's the law:

Quote

 

38 U.S. Code § 1153.Aggravation
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.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1124, § 353; renumbered § 1153, Pub. L. 102–83, § 5(a), Aug. 6, 1991, 105 Stat. 406.)

 

 

Here's the VA regulation:

Quote

 

§ 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)

(c) 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, as amended at 57 FR 59296, Dec. 15, 1992]

 

 

 

Here is the regulation describing how the rating should be determined:

 
Quote

 

§ 3.322 Rating of disabilities aggravated by service.

(a) Aggravation of preservice disability. In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. It is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule except that if the disability is total (100 percent) no deduction will be made. If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made.

(b) Aggravation of service-connected disability. Where a disease or injury incurred in peacetime service is aggravated during service in a period of war, or conversely, where a disease or injury incurred in service during a period of war is aggravated during peacetime service, the entire disability flowing from the disease or injury will be service connected based on the war service.

Cross References:

Principles relating to service connection. See § 3.303. Aggravation of preservice disability. See § 3.306.

[26 FR 1583, Feb. 24, 1961]

 

 

 

My blog article:

 

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Its called Service Connection by Allen Aggravation.

I have discovered service connection by Aggravation, not the Presumption of Aggravation.

A service connected disability can aggravate a non service connected issue beyond its normal progression years after service.

Example would be Sinusitis (service connected) aggravating Sleep Apnea ((non service connected).

A medical doctor would have to provide a nexus,  diagnosis of Sleep Apnea, and medical rationale of aggravation.

 

The tricky part would be the VA establishing a baseline of disability (when started/aggravation occurred) and current level of disability.

The veteran if approved would receive the difference in rating.

10% (start) minus 30% (current level) = 20% disability rating.

 

This is different from a documented injury or disease noted on entry physical and made worse during military obligation.

 

All comments are welcomed.

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Do you mean Allen V. Principi?

https://caselaw.findlaw.com/us-federal-circuit/1178591.html

Maybe you mean Allen V Brown:

https://veteranclaimsresearchcases.wordpress.com/2008/12/21/allen-v-brown-no-93-245/

Allen V Principi-( this one of the most important CAVC decisions to affect Veterans,with PTSD, who also

had drug/alcohol problems that were not due to willful misconduct.

In part: 

" fact, the Veteran testified and his attorney submitted a written statement that the Veteran would consider his appeal “satisfied” by a grant of the earlier effective date for PTSD back to June 29, 2012.  See August 2018 attorney letter; August 2018 videoconference hearing at page 3.  Neither the Veteran nor his attorney have requested an effective date earlier than June 29, 2012 for the award of service connection for his PTSD and depression.  

Accordingly, the Board concludes that June 29, 2012 is the proper effective date for the award of service connection for PTSD with depression and alcohol abuse.  38 U.S.C. § 5107(b)."

This was a successful EED claim and VA had applied Allen V Principi to his past claim.

The vet also got many remands  I don't like to cite Allen V Principi without bringing up how important this case was.,and still is.

https://www.va.gov/vetapp19/files8/19164166.txt

 

 

In fact, the Veteran testified and his attorney submitted a written statement that the Veteran would consider his appeal “satisfied” by a grant of the earlier effective date for PTSD back to June 29, 2012.  See August 2018 attorney letter; August 2018 videoconference hearing at page 3.  Neither the Veteran nor his attorney have requested an effective date earlier than June 29, 2012 for the award of service connection for his PTSD and depression.  

Accordingly, the Board concludes that June 29, 2012 is the proper effective date for the award of service connection for PTSD with depressioIn fact, the Veteran testified and his attorney submitted a written statement that the Veteran would consider his appeal “satisfied” by a grant of the earlier effective date for PTSD back to June 29, 2012. See August 2018 attorney letter; August 2018 videoconference hearing at page 3. Neither the Veteran nor his attorney have requested an effective date earlier than June 29, 2012 for the award of service connection for his PTSD and depression. Accordingly, the Board concludes that June 29, 2012 is the proper effective date for the award of service connection for PTSD with depression and alcohol abuse. 38 U.S.C. § 5107(b).n and alcohol abuse.  38 U.S.C. § 5107(b).
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