VA Proposes Change ''Aggravation'' to ''Permanent Worsening''

[Buck52]

"Permanent Worsening"

''This is VA's summary introduction to the proposed changes:''

The Department of Veterans Affairs (VA) proposes its adjudication regulations relating to aggravation of service-connected disabilities to more clearly define ‘‘aggravation’’ in serviceconnection claims. The revisions would explicitly confirm a singular definition of ‘‘aggravation’’ that includes the requirement of ‘‘permanent worsening.’’ The revisions would also include minor organizational and technical changes.

Why Change the Definition of Aggravation?

The proposed changes will apply to both in-service aggravation of an existing condition², and post-service aggravation of an existing condition by a service-connected disability.³ 

The following quote from the Federal Register provides the gist of VA's reasoning, but I encourage you to read the entire proposal for complete understanding.

The primary purpose of this proposed regulatory amendment is to provide a singular definition of ‘‘aggravation’’ by clarifying two phrases contained within 38 CFR 3.306 and 3.310; specifically, ‘‘increase in disability’’ in section 3.306 and ‘‘any increase in severity’’ in section 3.310.

These phrases are not currently defined by statute or regulation, but rather by case law. ... Both 38 CFR 3.306 and 3.310 serve the same ultimate goal of compensating veterans for increase in disability, whether based on aggravation of a preexisting disability (in-service context) or aggravation of a nonserviceconnected disability (post-service context).

Although these regulations are built on the same fundamental concepts, the differences in their wording have caused confusion over how to apply ‘‘aggravation’’ in both contexts.

Because the phrases ‘‘increase in disability’’ and ‘‘any increase in severity’’ are not clearly defined, there has been uncertainty over what standard to use in determining whether ‘‘aggravation’’ is demonstrated.

The incongruent wording in these two regulations has been a consistent point of confusion and contention in the claims process, including on appeal.

[ShuMan]

I see this as a really bad path the VA is going down. This is going to open the door for a lot of denials for secondary conditions and increase's in already service connected disabilities. Just my option but I see no good coming out of this for the Veteran. 

[Tbird]

I agree @ShuMan

[63Charlie]

 

The VA recently removed the public-facing DBQs.

Now they've come up with this ambiguous problematic piece of garbage to be placed into the regulations so they can legally circumvent well-established case law.

 

Edited September 26, 2020 by 63Charlie

[GBArmy]

I'm not sure if you guys are right or not. I certainly hope not, but I too have a negative feeling that this change will not be a positive for veterans disabilities claims. Hope I'm wrong too. The VA changed from "New and Material Evidence" to "New and Relevant Evidence" the last couple years. By and large that seems to have been a positive development. Maybe this will be too.??? Hope so!

[Tbird]

This is why it's so important to read the Federal Register https://community.hadit.com/forum/118-federal-register-announcements/

[Tbird]

Here is the Federal Register Entry https://hadit.com/aggravation-definition/

Comments must be received on or before November 10, 2020.

Comments may be submitted through www.Regulations.gov; or mailed to: Director, Compensation Service, VASRD Program Office, Department of Veterans Affairs, 1800 G St. NW, Room 644, Washington, DC 20006. Comments should indicate that they are submitted in response to “RIN 2900-AQ80, Aggravation Definition.” Comments received will be available Regulations.gov for public viewing, inspection or copies.