How does aggravation work?

[grayling12]

Can I file and potentially win a claim of aggravation such as:

A non service connected issue that's aggravated by the medications taken for a service connected disability?

Example: if I have urinary incontinence linked to BPH, (non service connected) but it is aggravated by my mental health meds, (service connected) that show urinary incontinence as a possible side affect, could this be claimed as a secondary condition or as aggravated by my mental health meds? How would this get rated if it's considered aggravation?

Also, can I claim my urinary incontinence as aggravated by and/ or caused by my service connected IBS, since I get incontinent frequently when I'm constipated and leak badly when trying to get up to use the bathroom etc.?

Thank you for any information

[Dustoff1970]

Okay here is an example of an aggravation disability issue discussion by a former VA DRO rater and long term VSO.  In this example he is talking about Sleep Apnea but aggravation is the topic of the discussion.  

"The association between sinusitis and sleep apnea is well known and nobody at VA is going to take issue with an assertion from you that sinusitis can aggravate sleep apnea.  The hurdle you are facing isn’t whether or not this is possible, but rather whether or not YOUR sinusitis aggravated YOUR sleep apnea and no scholarly article in the world will establish this unless the article is specifically about you.   This will require a medical opinion addressing you personally.  

Remember, just because sinusitis can aggravate sleep apnea doesn’t mean that it did in your situation.  Other factors can aggravate it also.  All the article would do is to support what they already know.   It really won’t be of any use in your situation. 

What you need is a medical opinion from your doctor.  Absent that, VA might obtain a medical opinion for you, but there is no guarantee as to that, but also as to what the opinion will say. 

Another thing to keep in mind is that even if it is determined that there is aggravation, you can only be compensated for the amount of aggravation.  To determine this they must determine how bad your sleep apnea would be without the sinusitis and establish an evaluation, and then subtract this from the evaluation for your sleep apnea as a whole. 

For example, if you require a CPAP even without the aggravation, this warrants a 50 percent evaluation.  This 50 percent must then be subtracted from whatever evaluation your sleep apnea warrants overall which would most likely also be 50 percent.  This leaves a 0 percent evaluation for compensation purposes. 

This means that unless your sleep apnea has worsened to the point that heart problems have developed, a 0 percent evaluation is most likely when we are talking about aggravation.  To get anything otherwise you will need to be able to show that if it weren’t for the sinusitis you would not need the CPAP.  In this case they would only subtract 30 percent from the overall 50, leaving compensation for a 20 percent evaluation. "

In almost all my claims in order to cover all my bases I have successfully claimed

1. For my disability to be directly service connected AND/OR

2. Secondary service connected to an existing service connected issue  and

3.  That my disability is caused by AND AGGRAVATED by my active duty service OR  secondary service connected to an existing sc disability.

In my claims I have also successfully contended the strong VA medications has also caused and/or aggravated my disabilities for PTSD, Sleep Apnea, Heart Disease, Tinnitus, GERD and Hypertension.  You may be able to also argue that VA medications caused and/or aggravated your non service connected disability and therefore the non service connected disability can be service connected.  This has worked for thousands of vets over the past 50 years.  You will probably need a favorable nexus medical opinion from a Dr. or specialist to win the claim/appeal. Go for it.

My current ratings are for

PTSD 70%, due to Nam combat

AO Heart Disease 60%,  due to Nam Agent Orange toxin

GERD 60%, due to PTSD and VA meds

OSA Sleep Apnea due to PTSD and VA meds 50%

Tinnitus 10%,  due to Nam combat and medevac pilot

Hypertension 0% due to PTSD and Nam Agent Orange plus

SMC-S for five years

My PTSD 70% rating started in 1998 to the present time.  

My comment is not legal advice as I am not a lawyer, paralegal or VSO

 

Edited November 13, 2023 by Dustoff1970

[broncovet]

Dustoff gave a great answer and its hard to top that!  

Generally, what I have seen for "aggravation" is to establish service connection.  

An example may be lets say you are diagnosed with a knee issue prior to service.  

So, the military puts a 140 pound back pack on you and makes you march 10 miles with the backpack on repeatedly, OR makes you jump out of airplines.  

Its easy to see how your knee condition could be worsened through military service, because you "aggravated" the condition in performing your duties in military service.  

The VA tends to "chop up" disabilities into parts:

1.  Service connection or no.  

2.  Disability percentage. 

3.  Effective date.  

     This is done for each condition, your knee condition can be vastly different, or the same, for BPH or other conditions.  

    However, once you have established service connection, well you have SC.  Its binary..you are either service connected for a condition or you are not.  Once service connected your condition should be rated by the criteria found in the schedule of disability ratings.  So, once you obtain sc via aggravation, you should be rated by the criteria found in the schedule:

https://www.law.cornell.edu/cfr/text/38/4.115a

   There could be an example of only getting sc for the percentage "you got worse" from military service because you had the condition prior to service.  

    Im gonna pass on guessing whether you would simply get service connection for aggravation, and then its rated normally, or there is some type of complicated deduction for the percentage of disability you had prior to service, vs what you have after service.  Given the crazy way VA does stuff, it would not suprise me a bit if VA tries to do this percentage of percentage stuff with aggravation.  But you could also appeal it.  After all, the miitary accepted you "with your limitations" and it is their fault if they expect you to perform duties that makes your conditions worse (aggravation).  

[Dustoff1970]

Here is another  explanation of AGGRAVATION from the Chisholm Chisholm Kilpatrick (CCK) law firm.

https://cck-law.com/blog/va-service-connection-aggravation/

My comment is not legal advice as I am not a lawyer, paralegal or VSO

Edited November 13, 2023 by Dustoff1970

[broncovet]

Dustoff, your answer was better and more accurate than mine.  

[Dustoff1970]

Actually your comment to the OP was very spot on.  I gave a poor example from a former VA DRO but then followed up with the good explanation from great law firm CCK.  All my disabilities have been primary or secondary connected and never aggravated.  The VA math for aggravation is too complicated for me to figure out and is an example of more VA bureaucratic BS confusing and not helping vets.

[broncovet]

If you want a great explanation for aggravation, just check with Frank Burns.

(This is for the series "MASH" fans).  Frank is the most aggravating person

I have never met.