M21-1 Manual  /  Part V, Subpart ii, Chapter 2, Section C

In-Service Aggravation of a Pre-Service Disability

M21-1, Part V, Subpart ii, Chapter 2, Section C

Overview


In This Section

This section contains the following topics:
TopicTopic Name
1Applicability of the Presumption of Soundness in Aggravation Determinations Under 38 CFR 3.306
2Presumption of Aggravation
3Special Procedures for Aggravation Determinations Under 38 CFR 3.306

1. Applicability of the Presumption of Soundness in Aggravation Determinations Under 38 CFR 3.306

Introduction

This topic contains information on applying the presumption of soundness when determining whether in-service aggravation of a pre-service disability has occurred, including
  • considering aggravation with the presumption of soundness at entry into service
  • evidence establishing pre-existence when there is a presumption of soundness
  • role of medical evaluation board (MEB) and physical evaluation board (PEB) findings, and
  • considering lay evidence and the presumption of soundness.

Change Date

September 11, 2024

V.ii.2.C.1.a. Considering Aggravation With the Presumption of Soundness at Entry Into Service

Proper analysis of the evidence for presumption of soundness is very important to making a determination of aggravation. Carefully analyze the evidence for aggravation of a claimed disability when

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

V.ii.2.C.1.b. Evidence Establishing Pre-Existence When There Is a Presumption of Soundness

When a claimed disorder was not noted on the entrance examination and the presumption of soundness applies, only evidence showing the disorder clearly and unmistakably existed prior to enlistment may establish pre-existence of the claimed condition. Any acceptable evidence pertinent to onset or inception of the condition should be evaluated carefully. Determine credibility and appropriate weight of evidence which may include
  • medical records from before, during, or after service, and
  • lay evidence such as history from the claimant.
Important: 38 CFR 3.304(b)(1), and 38 CFR 3.304(b)(2) emphasize that, in conducting the analysis, the decision maker should not rely on a speculative medical conclusion. There should be a complete medical analysis taking into consideration history, data, and generally-accepted medical principles including knowledge about the nature and course of the disorder at issue. The decision maker, in turn, must conduct a critical analysis of the evidence. References: For more information on

V.ii.2.C.1.c. The Role of MEB and PEB Findings

The rating activity must afford Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) reports due weight when considering the evidence of record regarding a condition which may have pre-existed service. Important: Do not deny a claim based solely upon the conclusion of an MEB or PEB report that a condition pre-existed service and was not aggravated by service if the report does not also contain a supporting analysis or medical explanation for the conclusion. The MEB or PEB report alone is not sufficient to constitute clear and unmistakable evidence to rebut the presumption of soundness without a supporting analysis or medical explanation. Reference: For more information on the role of MEB and PEB findings, see Horn v. Shinseki, 25 Vet.App. 231 (2012).

V.ii.2.C.1.d. Considering Lay Evidence and the Presumption of Soundness

Although contemporaneous pre-service clinical evidence or recorded history may satisfy the burden of evidence clearly and unmistakably showing pre-existence of a claimed condition when the same condition was not noted on entry into service, there is no absolute requirement that such evidence be present before the presumption of soundness can be rebutted. A later medical opinion based on statements made by the Veteran about pre-service history of the disorder may rebut the presumption by providing evidence which clearly and unmistakably establishes the claimed condition existed prior to service. However, where there is such a medical opinion, and other evidence on the question, all of the probative evidence must be considered and weighed to determine whether evidence clearly and unmistakably establishes the condition preexisted service. 38 CFR 3.304(b)(3) provides that signed statements made by the Veteran during service about the onset or incurrence of disease which are against the claimant’s interest cannot be used if there is no other evidence establishing pre-existence of the claimed condition. In such a case, the other evidence will be considered as though the Veteran’s statement against their own interest did not exist. However, the courts have held that other voluntary admissions of a pre-service disability or condition can be considered with appropriate application of weight and credibility assigned as described in M21-1, Part V, Subpart ii, 1.A. Reference: For more information on lay evidence and the presumption of soundness, see Harris v. West, 203 F.3d 1347 (Fed.Cir. 2000).



2. Presumption of Aggravation

Introduction

This topic contains information on the presumption of aggravation, including
  • aggravation determinations when there is a presumption of soundness
  • applying the presumption of aggravation to claims based on
    • active service, and
    • active duty for training (ADT) and inactive duty for training (IADT)
  • distinguishing between presumption of soundness and presumption of aggravation
  • considering flare-ups of pre-existing injury or disease
  • considering the usual effects of medical or surgical treatment
  • presumption of aggravation for chronic diseases
  • aggravation of pre-existing disability under combat conditions, and
  • presumption of aggravation under combat conditions.

Change Date

September 11, 2024

V.ii.2.C.2.a. Aggravation Determinations When There Is a Presumption of Soundness

In determining that the presumption of soundness has been overcome, 38 U.S.C. 1111 requires that the evidence clearly and unmistakably establishes that the disability
  • existed prior to service, and
  • was not aggravated by service.
When a claimed disorder was not noted on the entrance examination and the presumption of soundness applies, but evidence shows pre-existence of the claimed disability, the presumption of soundness still applies unless clear and unmistakable evidence further proves the condition was not aggravated by service. Such clear and unmistakable evidence must establish that
  • there was no increase in disability during service, or
  • any increase in disability was due to the natural progression of the pre-existing condition.
Consider the entire evidentiary record when making the determination as to whether there was an increase in disability in service. The record may or may not include evidence showing
  • an identified injury or other event in service, or
  • pre-service and/or post-service treatment.
Important: Avoid making unsupported conclusions that the evidentiary standard is not met based on the fact that the service records do not show a specific injury or causative event or that there are no post-service treatment records.
  • These facts may be irrelevant. The relevance depends on medical evidence of the nature and expected course of the disability at issue.
  • Drawing an unsupported conclusion based on lack of post-service treatment records or service records not showing a specific injury or causative event impermissibly shifts the burden of proof onto the Veteran to prove aggravation.
References: For more information on

V.ii.2.C.2.b. Applying the Presumption of Aggravation to Claims Based on Active Service

Under 38 U.S.C. 1153 and 38 CFR 3.306, when there is a claim for SC for aggravation of a disability during active service, and a pre-service injury or disease was noted on enlistment, the claimant initially bears the burden of proving that the pre-existing condition worsened in service. When an increase in disability is proven, the presumption of aggravation applies. The presumption of aggravation requires the decision maker to consider a pre-existing injury or disease to have been aggravated by active military service when there is an increase in disability during active military service, unless the evidence clearly and unmistakably shows the increase in disability is due to the natural progress of the injury or disease. Notes:
  • Always address the issue of aggravation when SC for a pre-existing disability is claimed.
  • If SC is not established, include an explanation of the relevant findings from the medical records before, during, and after service that demonstrate the condition existed prior to service and did not increase in severity or that the increase in severity was due to natural progression in the Narrative of the rating decision.
  • Ensure that determinations are based on independent medical evidence and not on speculation.
References: For more information on

V.ii.2.C.2.c. Applying the Presumption of Aggravation to Claims Based on ADT and IADT

In claims based on active duty for training (ADT) or inactive duty for training (IADT), direct evidence demonstrating the pre-existing disability permanently worsened during ADT or IADT and the worsening was not the result of natural progression of the disability is required to establish aggravation (see Smith (Valerie Y.) v. Shinseki, 24 Vet.App. 40, 44 (2010)).The presumption of aggravation does not routinely apply when the claim is based on ADT or IADT. However, if Veteran status and active service is established for a period of ADT or IADT on the basis of a grant of SC for one or more disabilities as specified in 38 CFR 3.6(a), the presumption of aggravation does apply for other preexisting disabilities claimed to have been aggravated during the same period of ADT or IADT if
  • the claimant underwent an entrance examination prior to the period of ADT or IADT, or
  • other contemporaneous evidence establishes the baseline severity of the preexisting condition.
Example: A Veteran establishes SC for a lumbar spine disability that was directly incurred during a period of ADT and subsequently claims SC for a shoulder condition on the basis that it was aggravated during the same period of ADT. Because Veteran status has been established for the back disability, and the period of ADT is now considered active service per 38 CFR 3.6(a), the presumption of aggravation under 38 CFR 3.306 applies to the shoulder disability if the Veteran underwent an enlistment examination for this period of service or other contemporaneous evidence establishes the baseline severity of the preexisting condition. References: For more information on
  • the presumption of aggravation and soundness for claims based on active duty for training, see
  • applying the presumption of aggravation when active service is established based on a period of ADT or IADT, see Hill v. McDonald, 28 Vet.App. 243 (2016).

V.ii.2.C.2.d. Distinguishing Between Presumption of Soundness and Presumption of Aggravation

The presumption of soundness, under 38 U.S.C. 1111, and the presumption of aggravation, under 38 U.S.C. 1153, are different statutes with different burdens of proof. The table below describes the fact patterns that must be applied to each respective statute.
Fact PatternStatuteBurden of Proof for Presumption
no evidence of disability upon entrance examinationpresumption of soundness under 38 U.S.C. 1111Presume soundness unless the evidence clearly and unmistakably shows
  • the disorder existed prior to service, and
  • was not aggravated by service.
evidence of disability upon entrance examinationpresumption of aggravation under 38 U.S.C. 1153If a review of the evidence reveals worsening of the condition in service, presume aggravation has occurred unless the evidence clearly and unmistakably shows the worsening of the condition was due to natural progression.

V.ii.2.C.2.e. Considering Flare-Ups of Pre-Existing Injury or Disease

Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, has worsened. Do not concede aggravation merely because a Veteran’s condition was in remission at the time of entry on active duty. Reference: For more information on the difference between increase in the underlying disability and temporary flare-ups of symptoms, see

V.ii.2.C.2.f. 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 SC for the usual effects of medical or surgical treatment in service to correct or improve the condition, such as post-operative scars and/or absent or poorly functioning parts or organs.

V.ii.2.C.2.g. Presumption of Aggravation for Chronic Diseases

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.

V.ii.2.C.2.h. Aggravation of Pre-existing Disability Under Combat Conditions

38 U.S.C. 1154(b) provides that for combat Veterans, the Department of Veterans Affairs (VA) must accept satisfactory lay or other evidence of service aggravation despite the lack of official records if the lay or other evidence is consistent with the circumstances, conditions or hardships of the combat service. Unless there is clear and convincing evidence to the contrary, grant SC if there is
  • satisfactory evidence of aggravation consistent with the combat service
  • competent evidence of a nexus between the in-service aggravation and a current disability, and
  • evidence of current disability.

38 CFR 3.306(b)(2) directs that due regard will be given to the places, types, and circumstances of service and particular consideration will be accorded to combat duty and other hardships of service.

Important:

  • A pre-existing disease or injury’s temporary or intermittent flare-up of symptoms does not trigger the presumption of aggravation unless there is an increase in the underlying disability.
  • However, 38 CFR 3.306(b)(2) provides that development of symptomatic manifestations of a preexisting injury or disease during or proximately following action with the enemy (or following status as a prisoner of war) will establish aggravation unless there is clear and convincing evidence of
    • no increase in the preexisting condition, or
    • the increase was the result of natural progression.

    References: For more information on

    • aggravation of a pre-existing disability during combat conditions, see Jensen v. Brown, 19 F.3d 1413 (Fed.Cir. 1994), and
    • requirement of a nexus between current disability and injury or disease incurred or aggravated by combat service, see M21-1, Part V, Subpart ii, 2.A.3.d.

V.ii.2.C.2.i. Presumption of Aggravation Under Combat Conditions

Maxson v. Gober, 230 F.3d 1330 (Fed.Cir. 2000) held that VA, in deciding whether the presumption of aggravation of a condition during combat has been rebutted, must consider a Veteran’s entire medical history, to include any lengthy period without medical complaint during and after service. VA must consider all relevant factors, to include
  • availability of medical records
  • nature and course of the disease or disability, and
  • amount of time that elapsed since military service.
Important: Do not merely dismiss the presence of disability because there is an absence of accompanying medical treatment records. The absence of treatment records does not necessarily mean the absence of disability. Moreover the absence of medical records during combat conditions does not necessarily establish the absence of disability.Reference: For more information on aggravation of a pre-existing disability during combat conditions, see

3. Special Procedures for Aggravation Determinations Under 38 CFR 3.306

Introduction

This topic contains special procedures applicable to aggravation determinations under 38 CFR 3.306, including
  • records needed to determine baseline level of disability
  • evaluating disabilities service-connected (SC) by aggravation under 38 U.S.C. 1153, and
  • aggravation with a zero percent evaluation.

Change Date

September 15, 2021

V.ii.2.C.3.a. Records Needed to Determine Baseline Level of Disability

The baseline for determining whether a pre-existing 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.

V.ii.2.C.3.b. Evaluating Disabilities SC by Aggravation Under 38 U.S.C. 1153

The degree of disability evaluation existing at the time of entrance into active service must be considered when evaluating the disabilities connected to service on the basis of aggravation under 38 U.S.C. 1153. Use the table below to determine whether to deduct the degree of disability existing at entrance from the current disability evaluation.
If the disability evaluation existing at the time of entrance into active service ...Then ...
is ascertainablededuct the entrance disability evaluation from the present disability evaluation.
is not ascertainable.do notdeduct an entrance disability evaluation from the present disability evaluation.
Note: Do not make a deduction if the disability has a total (100 percent) evaluation, as specified in 38 CFR 4.22.

V.ii.2.C.3.c. Aggravation With a Zero Percent Evaluation

Aggravation is established by any increase in severity, regardless of whether it would result in a schedular increased evaluation. Whenever there is competent and credible evidence of an increase in severity of the disability from the baseline, but the current and baseline disability would be assigned the same level of evaluation under 38 CFR Part 4, Schedule for Rating Disabilities, grant SC and assign a noncompensable evaluation. To justify SC, the degree of disability after aggravation does not have to be at least one level of evaluation higher than the baseline. Exception: When the disability has a total (100 percent) evaluation, do not make a baseline deduction, as specified in 38 CFR 4.22. Reference: For more information on determining whether a disability has increased in severity under 38 U.S.C. 1153, see
  • Browder v. Derwinski, 1 Vet.App. 204 (1991), and
  • Hensley v. Brown, 5 Vet.App. 155 (1993).

Source: VA M21-1 Adjudication Procedures Manual, M21-1, Part V, Subpart ii, Chapter 2, Section C (U.S. government work, reproduced for reference). Browse all sections →