"Pre-Existing Condition Not Aggravated by Service"
The presumption of soundness
If a condition was not noted on the entrance examination, VA must rebut soundness with clear and unmistakable evidence on both prongs. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. A history the reported at enlistment is not, by itself, a notation of a defect.
'Clear and unmistakable' is a far higher standard than the usual balance-of-evidence test. A single examiner's statement that a condition 'likely predated service' does not ordinarily satisfy it.
When the condition was noted at entry
Then the question is . Under 38 CFR § 3.306, an increase in disability during service is presumed to be aggravation unless there is a specific finding that the increase is due to the natural progress of the disease. Temporary flare-ups without a worsening of the underlying condition do not establish aggravation. Hunt v. Derwinski, 1 Vet. App. 292 (1991).
Evidence that speaks to aggravation
- The entrance examination itself — what was and was not noted decides which standard applies.
- In- showing a change in frequency, severity, or treatment intensity.
- A profile change, duty limitation, or separation examination documenting a worse baseline than at entry.
- A medical opinion that distinguishes natural progression from service-related worsening and explains why.
Frequently Asked Questions
References & sources
- 38 CFR § 3.303 — Principles relating to service connection — Code of Federal Regulations
- 38 CFR § 3.159 — VA's duty to assist — Code of Federal Regulations
- 38 CFR § 3.2500 — Review of decisions (AMA lanes) — Code of Federal Regulations
- Caluza v. Brown, 7 Vet. App. 498 (1995) — U.S. Court of Appeals for Veterans Claims · Sets out the three elements of service connection.
Useful Tools & Topics
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