Overview
In This Section |
This section contains the following topics:
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1. Determining Direct SC
Introduction |
This topic contains information on determining direct SC, including
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Change Date |
March 2, 2017
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IV.ii.2.B.1.a. Overview of Direct SC |
Direct service connection (SC) means that a particular disease or injury was incurred in service. This is accomplished by affirmatively showing inception during service. There are three components to proving direct SC. These are
All pertinent or relevant medical and lay evidence must be considered, including the service records (which may show the places, types, and circumstances of service and the official history of the organization in which the Veteran served).
References: For more information on
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IV.ii.2.B.1.b. Satisfying the Current Disability Requirement for SC |
Evidence of a current disability is required as one of the components of establishing SC. Generally, this criterion is satisfied when a current examination or other evidence demonstrates the presence of a chronic disability. However, the evidence must be reviewed to determine whether a disability was present at the time the claim was filed or during the pendency of the claim but has since resolved.
A determination of SC will be made on a case-by-case basis with evaluation of all pertinent evidence. Consider the history of the diagnosis and give appropriate weight to any diagnosis present near-contemporaneously with or during the pendency of a claim. The weighing of evidence will generally result in one of the following three possible conclusions:
Example 1: A Veteran is diagnosed with eczema regularly throughout service and was treated with topical medications by dermatologists on multiple occasions. Symptoms waxed and waned, as is typical with eczema, based on seasonal changes. Service treatment records (STRs) from June 2012 show eczema. A Benefits Delivery at Discharge claim is submitted, and a VA pre-discharge examination from August 2012 determines that no pathology exists to render a diagnosis of a skin disorder. The in-service records clearly show a long-standing diagnosis of eczema which was present near-contemporaneously with the claim. SC should be granted.
Example 2: A Veteran claimed SC for sinusitis in March 2008, prior to military discharge in July 2008. During service, the Veteran was treated variably for upper respiratory infections, ear infections, deviated septum due to an in-service injury, chronic nasal congestion, and sinus problems. On examination, the Veteran reported pain and headache in the sinus area and non-incapacitating flare-ups two to three times a year. The examiner provided no diagnosis and indicated that no sinusitis was shown on exam. The examiner indicated that there was no visible postnasal drainage or significant hypertrophy or posterior oropharyngeal lymphoid tissue. The examiner explained that the layman concept of sinusitis or sinus problems is understandable, but in the truest sense, from a specialist’s point of view, there is no underlying chronic sinusitis in this case, especially based on the computed tomography (CT) scans. The examiner indicated that the in-service symptoms were consistent with acute episodes of upper respiratory infection and/or symptoms of deviated nasal septum. The evidence of record is sufficient to establish SC for traumatic deviated nasal septum. There is no medical evidence to refute the examiner’s finding that sinusitis is not shown by the medical evidence of record. SC for sinusitis should be denied. References: For more information on
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IV.ii.2.B.1.c.Establishing Direct SC Based on Chronicity |
The principles of chronicity and continuity discussed under 38 CFR 3.303(b) may be used only to establish SC for chronic diseases listed under 38 CFR 3.309(a). When a chronic disease listed under 38 CFR 3.309(a) is shown in service, consider all subsequent manifestations of the same chronic disease as service-connected (SC), unless they are clearly shown to be due to intercurrent causes. To establish SC under 38 CFR 3.303(b) based on the chronicity of a disease shown in service, the evidence must include
Notes:
References: For more information on
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IV.ii.2.B.1.d. Establishing SC Based on Continuity of Symptoms |
Continuity of symptomatology under 38 CFR 3.303(b) may only be used to establish SC for a chronic disease listed under 38 CFR 3.309(a). A showing of continuity for a chronic disability listed under 38 CFR 3.309(a) is required only if
References: For more information on
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IV.ii.2.B.1.e. Establishing Direct SC Under 38 CFR 3.303(a) |
Direct SC may be established under 38 CFR 3.303(a) when
Notes:
Reference: For more information on determining whether the evidence of record is sufficient to request a medical nexus opinion, see M21-1, Part I, 1.C.3.c-f.
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IV.ii.2.B.1.f. Establishing Direct SC Under 38 CFR 3.303(d) |
Consider whether direct SC may be established under 38 CFR 3.303(d), even if SC is claimed for a disease diagnosed after service has ended. SC may be awarded for a disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service.
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IV.ii.2.B.1.g. Definition: Acute and Transitory |
An acute disability is a disease or injury that
A transitory disability is a disease or injury that is not permanent.
Examples: Acute and transitory disabilities include
Important: Do not arbitrarily determine in-service injuries to be acute and transitory without relying on competent medical evidence determining that chronic disability was not demonstrated.
Reference: For more information on the need for medical evidence in acute and transitory determinations, see McLendon v. Nicholson, 20 Vet.App. 79 (2006).
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IV.ii.2.B.1.h. Definition: Presumption of Soundness |
The presumption of soundness means that a Veteran will be considered to have been in sound condition (the claimed disability did not exist) when examined, accepted, and enrolled for service.
Exceptions: The presumption of soundness does not apply when the evidence shows
Notes:
Reference: For more information on the presumption of soundness and aggravation, see
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IV.ii.2.B.1.i. Service Requirements for Presumption of Soundness |
Use the table below to determine the service requirements the Veteran must meet before VA can apply the presumption of soundness.
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IV.ii.2.B.1.j. Considering the Presumption of Soundness at Entry Into Service |
Under 38 U.S.C. 1111, when no pre-existing condition is noted at entrance into service, then the presumption of soundness establishes that the claimed disability did not exist before service unless there is clear and unmistakable (undebatable) evidence showing that the disease or injury which manifested in service
Notes:
Reference: For more information on the presumption of soundness, see
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IV.ii.2.B.1.k. Definition: Active Continuous Service |
Active continuous service may exclude lengthy periods of extended absence from duty, such as unauthorized absence or other extended non-pay status.
A determination of whether a period of unauthorized absence is considered a break in service should be undertaken on a case-by-case basis with consideration of the facts of the individual’s case, including the extent to which the circumstances, nature, and duration of the claimant’s absence affected his or her performance of continuous duty.
Examples: The following facts and findings are set forth in General Counsel (GC) Opinions:
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IV.ii.2.B.1.l. Applying the Presumption of Soundness for Active Duty for Training |
In claims based on a period of active duty for training, apply the presumption of soundness only when the Veteran underwent a physical examination at the time of entry into the period of active duty for training on which the claim is based.
If an examination was performed, consider the Veteran to have been in sound condition when entering active duty for training except as to defects, infirmities, or disorders noted on the examination report.
Important: The presumption of soundness is only triggered for a period of active duty for training when an examination has been conducted if the claimant has previously established Veteran status, which is defined as having prior active military service, and was discharged under conditions other than dishonorable. Neither the presumption of soundness nor aggravation may be applied if the claimant does not have Veteran status.
Reference: For more information on the presumption of soundness in claims based on active duty for training, see Smith (Valerie Y.) v. Shinseki, 24 Vet.App. 40, 44 (2010).
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IV.ii.2.B.1.m.Requirements for Inactive Duty Training to Be Considered Active Service |
Inactive duty training is not considered active service unless SC is awarded for disability or death resulting from
Notes:
References: For more information on
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2. Determining Presumptive SC
Introduction |
This topic contains information on determining presumptive SC, including
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Change Date |
February 2, 2018
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IV.ii.2.B.2.a. Overview of Presumptive SC |
Diseases or conditions entitled to consideration for presumptive SC will be considered to have been incurred in or aggravated by service if manifested to a compensable level within the time frame specified for that certain disease under the regulation, even if there is no evidence of such disease during service.
References: For more information on
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IV.ii.2.B.2.b. Establishing Presumptive SC for Chronic and Tropical Diseases |
Use the table below to determine the service requirements the Veteran must meet before VA may establish presumptive SC for chronic and tropical diseases.
Note: In claims based on a period of ADT, there is no presumption of SC for chronic diseases under 38 CFR 3.309(a) or tropical diseases under 38 CFR 3.309(b) (see Smith (Valerie Y.) v. Shinseki, 24 Vet.App. 40, 44 (2010)) unlessSC has been established for a disability based on the period of ADT, as described in M21-1, Part III, Subpart ii, 6.A.2.i.
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IV.ii.2.B.2.c. Considering Presumptive SC for Metastatic Cancer |
SC on a presumptive basis for cancer associated with an in-service exposure event may only be established if the cancer in consideration is the primary or originating site of the cancer. Consider the factors below in determining whether a cancer is primary or metastatic and whether SC may be established.
Example: A Veteran claims SC for lung cancer associated with herbicide exposure. Pathology reports indicate that the Veteran’s liver cancer metastasized to the lung. Since liver cancer is not a disability presumptively associated with herbicide exposure, SC for the metastatic lung cancer as due to herbicide exposure is not warranted. Reference: For more information on assigning disability evaluations for cancer, see M21-1, Part III, Subpart iv, 5.B.3.b-d. |
IV.ii.2.B.2.d. Burden of Proof Required to Rebut Presumptive SC |
Presumptive SC can be rebutted under 38 CFR 3.307(d). The medical evidence to rebut the presumption of SC
The presumption of SC may not be rebutted using an opinion that
References: For more information on
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IV.ii.2.B.2.e. Example of Sufficient Evidence to Rebut Presumptive SC |
Situation: A Veteran with Vietnam service claims SC for lung cancer. Medical opinion indicates that the lung cancer was metastasized from original stomach cancer. The opinion is supported by and cites medical evidence indicating the lung cancer originated in the stomach and was not the result of in-service exposures.
Result: The decision maker determines the evidence is sufficient to rebut the presumption of SC under 38 CFR 3.307. In arriving at this conclusion, the decision maker finds that the opinion sufficiently and affirmatively identifies an intercurrent cause of the Veteran’s disease, in this case stomach cancer, and also provides a specific negative finding of causation with respect to in service exposures.
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IV.ii.2.B.2.f. Example of Insufficient Evidence to Rebut Presumptive SC |
Situation: A Veteran with service in the Korean demilitarized zone (DMZ) during 1968 and 1969 (sufficient to establish exposure to herbicides) claims SC for non-Hodgkin’s lymphoma (NHL). Medical evidence shows that the Veteran was previously diagnosed with hepatitis B and C. A bone marrow biopsy was evaluated as suspicious for Hepatitis C-related B-cell lymphoma. Diagnoses of hepatitis C-related B cell lymphoma and Non-Hodgkin’s B cell lymphoma secondary to Hepatitis C are shown in the record.
An oncologist opined that the absence of past studies would make determination of the etiology of the disorder impossible but that it was his belief that the evidence suggests that the hepatitis C infection led to the development of the lymphoma. The oncologist supported the conclusion with citation to medical literature linking hepatitis C and NHL and noted that the appellant’s lymphoma did not manifest until after he had been diagnosed with hepatitis C. The oncologist did, however, note that the risk of developing the tumor is greater in those with exposure to Agent Orange, even for those with a normal immune system.
Result: The decision maker finds that the evidence currently of record is insufficient to rebut the presumption of SC under 38 CFR 3.307. In arriving at this finding, the decision maker determines that although a negative opinion is present, the additional factors required to rebut the presumption of SC are not present. The negative opinion is based on the entire record. However, the evidence does not affirmatively establish that an intercurrent cause is present because the opinion concedes that the in-service exposure is a risk factor for developing NHL and that no testing was done to definitively determine the etiology of the disorder. Consequently, the opinion does not show that the hepatitis C was the sole cause of the condition nor rule out the exposure as a risk factor or contributory cause. Additionally, the opinion relies on an incorrect evidentiary standard since the examiner has only opined that the evidence suggests another causation, which does not provide affirmative evidence contrary to the presumption.
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3. Determining Service Incurrence of an Injury
Introduction |
This topic contains information on determining service incurrence of an injury, including
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Change Date |
January 20, 2016
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IV.ii.2.B.3.a. Substantiating the Circumstances of Injuries |
The development activity and/or rating activity must review the evidence of record, to include personnel records and STRs, to ensure the injury occurred during service and in the line of duty (LOD).
Rationale: The results of injuries, including gunshot wounds acquired before or after service, are frequently encountered and would not be granted SC as they are not injuries that occurred during service or in the LOD.
References: For more information on
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IV.ii.2.B.3.c. Processing Examination Reports of Scars |
If the presence of a scar or scars is recorded in a physical examination report related to a claim for scarring, review official records to ensure the scar or scars are in fact a residual of wounds in service.
If there is reasonable doubt as to whether the scar(s) are related to service, that is, an approximate balance of evidence for and against the claim, award SC for the claimed scar(s).
References: For more information on
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IV.ii.2.B.3.d. Considering Evidence for Combat-Related Disabilities |
Accept satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat 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.
In order for evidence submitted by the Veteran to support a factual presumption that the claimed disease or injury was incurred or aggravated in service, the evidence must
Notes:
References: For more information on
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IV.ii.2.B.3.e. Definition:
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Satisfactory evidence generally means evidence that is credible.
It is proper to
Reference: For more information on determining whether evidence is credible, see
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4. Determining In-Service Aggravation of Pre-Service Disability
Introduction |
This topic contains information on determining in-service aggravation of pre-service disability, including
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Change Date |
July 19, 2017
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IV.ii.2.B.4.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
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IV.ii.2.B.4.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
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
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IV.ii.2.B.4.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).
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IV.ii.2.B.4.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.
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 his/her 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 III, Subpart iv, 5.A.
Reference: For more information on lay evidence and the presumption of soundness, see Harris v. West, 203 F.3d 1347 (Fed.Cir. 2000).
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IV.ii.2.B.4.e.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
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
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
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.
References: For more information on
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IV.ii.2.B.4.f. 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:
References: For more information on
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IV.ii.2.B.4.g. Applying the Presumption of Aggravation to Claims Based on ADT and IADT |
In claims based on ADT or 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
Example: A Veteran establishes SC for a lumbar spine disability that was directly incurred during a period of ADT. He subsequently claims SC for a shoulder condition on the basis that it was aggravated during the same period of ADT. Since Veteran status has been established with the SC award 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 for the shoulder disability based upon the same period of service may be extended to the Veteran if he 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
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IV.ii.2.B.4.i. 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.
Note: Do not make a deduction if the disability has a total (100 percent) evaluation.
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IV.ii.2.B.4.j. 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 two distinctly different statutes with differing burdens of proof required. The table below describes the fact patterns that must be applied to each respective statute.
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IV.ii.2.B.4.k. 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
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IV.ii.2.B.4.l. 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.
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IV.ii.2.B.4.m. 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.
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IV.ii.2.B.4.n. Aggravation of Pre-existing Disability Under Combat Conditions |
38 U.S.C. 1154(b) provides that for combat Veterans, 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
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:
References: For more information on
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IV.ii.2.B.4.o. 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
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
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5. Determining Secondary SC, Including by Aggravation
Introduction |
This topic contains information on determining secondary SC, including by aggravation, including
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Change Date |
February 2, 2018
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IV.ii.2.B.5.a.Provisions for SC Under 38 CFR 3.310(a) and (b) |
Award SC for the following under the provisions of 38 CFR 3.310(a) and 38 CFR 3.310(b).
Reference: For more information on SC for aggravation of NSC disabilities by SC disabilities, see
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IV.ii.2.B.5.b. Establishing Causation for Secondary SC |
SC on a secondary basis requires a showing of causation. A showing of causation requires that the secondary disability be shown to be proximately due to, or the result of, an SC condition.
To establish causation, the primary disability need not be SC, or even diagnosed, at the time the secondary condition is incurred.
Example: SC was granted for a back disability with radiculopathy effective in 2015. Credible evidence showed that the Veteran had a 20-year history of back pain and progressively worsening radiculopathy dating back to roughly 2001. The formal diagnosis of radiculopathy was not made until 2010.
The Veteran claimed SC for a shoulder disability in 2016, stating that his early symptoms of radiculopathy caused him to lose his balance, fall, and tear his rotator cuff in 2008. He provided a medical opinion linking his rotator cuff tear to a fall, and the fall to sensory impairment and difficulty with proprioception due to early symptoms of radiculopathy.
Result: As the medical opinion establishes causation for the rotator cuff tear in the shoulder due to the radiculopathy, the requirements for SC on a secondary basis are satisfied.
References: For more information on the
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IV.ii.2.B.5.e. Information That Must Be Included in the Examiner’s Report for Secondary SC Based on Aggravation |
The examiner’s report must separately address all of the following medical issues in order to be considered adequate for rating a claim for secondary SC based on aggravation
Reference: For more information on requesting examinations for claims based on secondary service connection and aggravation, see M21-1, Part I, 1.C.3.g.
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IV.ii.2.B.5.f. Determining the Extent to Which an NSC Disability Was Aggravated by an SC Disability |
To determine the extent to which, if any, an NSC disability was aggravated by an SC disability
Note: This policy applies even when the current level of severity of the NSC disability is 100 percent, including temporary 100-percent evaluations assigned under 38 CFR 4.29 and 38 CFR 4.30.
Important: 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.
Example: The medical examiner clearly states that the NSC disability was aggravated by the SC disability. The medical evidence shows that the baseline level of disability corresponds to 0 percent and the current level of severity after aggravation corresponds to 0 percent under 38 CFR Part 4, Schedule for Rating Disabilities. It is appropriate to find that there was aggravation. Grant SC and assign a noncompensable evaluation.
Reference: For more information on increased impairment in earning capacity that does not rise to the level of meeting the criteria for the next-higher schedular rating, see
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6. Determining SC for Congenital, Developmental, or Hereditary Disorders
Introduction |
This topic contains information on determining SC for congenital, developmental, or hereditary disorders, including
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Change Date |
July 7, 2017
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IV.ii.2.B.6.a. Definition: Congenital or Developmental Defects |
Congenital or developmental defects refer to normally static, structural or inherent body abnormalities which are typically present at birth and are generally incapable of improvement or deterioration. These include but are not limited to
Note: The presumption of soundness does not apply to congenital defects because such defects are not diseases or injuries within the meaning of the statutes governing the presumption.
References: For more information on
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IV.ii.2.B.6.b. Definition: Congenital, Developmental, or Hereditary Disease |
Congenital, developmental, or hereditary diseases refer to diseases that are recognized to be congenital, developmental, or familial in origin. A congenital, developmental, or hereditary disease may appear in adulthood and is capable of improvement or deterioration.
Examples of congenital or hereditary diseases include but are not limited to
Reference: For more information on handling claims for SC based on
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IV.ii.2.B.6.c. Establishing SC for Congenital, Developmental, or Hereditary Disorders |
Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency are not considered diseases or injuries under 38 CFR 3.303(c). Since they are not diseases or injuries, they are not generally subject to SC.
However, establish SC, if warranted, for
Note: VAOPGCPREC 11-1999 held that M21-1 provisions created in 1964 did not preclude awarding SC for in-service aggravation of pre-existing retinitis pigmentosa. Therefore, subsequent VA GC Precedent Opinions and M21-1 changes cannot be considered liberalizing changes.
References: For more information on
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IV.ii.2.B.6.d.Requesting Medical Opinions in Claims for SC for Congenital, Developmental, or Hereditary Disorders |
When considering SC for a condition of congenital or developmental origin, determine whether the condition is a disease process or is simply a defect or abnormality. In many instances, it may be necessary to request a medical opinion regarding the proper classification of a medical condition at issue. Particularly, the examiner should be asked whether the condition is capable of improvement or deterioration.
Although the outcome of such an opinion request is probative in determining whether a congenital or development condition is a disease or a defect, and consequently whether it is subject to SC, the opinion is not wholly determinative and must be considered in the context of the remainder of the evidentiary record.
Reference: For more information on requesting medical opinions in claims for SC for congenital or developmental conditions, see Quirin v. Shinseki, 22 Vet.App. 390 (2009).
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IV.ii.2.B.6.e. Considering the Development of Symptoms of Hereditary Disease in Service |
Consider diseases of hereditary origin to be incurred in service if the pathological signs or symptoms developed after entry into active service.
Even if the Veteran is almost certain to eventually develop a disease, a genetic or other familial predisposition does not constitute having the disease. Only when the evidence shows actual manifestation of symptoms or signs of pathology followed by a diagnosis, may he/she be said to have developed the disease.
Notes:
Reference: For more information on the presumption of soundness, see M21-1, Part IV, Subpart ii, 2.B.1.h-j.
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