(a) General. A preexisting injury or disease will be considered to have been aggravated by active military, naval, air, or space service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.
(Authority: 38 U.S.C. 1153)
(b) Wartime service; peacetime service after December 31, 1946. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.
(1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service.
(2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability.
(Authority: 38 U.S.C. 1154)
(c) Peacetime service prior to December 7, 1941. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service.
[26 FR 1580, Feb. 24, 1961, as amended at 57 FR 59296, Dec. 15, 1992; 87 FR 26125, May 3, 2022]
Notes of Decisions
Lanier v. Hines v. Anthony J. Principi, 18 Vet. App. 227 (Vet. App. 2004).
· cites it 30× “In the SOC, the RO cited specifically to " 38 C.F.R. § 3.306 (B)(1)", describing that regulation as providing that "[t]he usual effect of medical and surgical treatment in service, having the effect of ameliorating diseases or other conditions incurred before enlistment,…”
Brian E. Routen, Claimant-Appellant v. Togo D. West, Sec'y of Vets. Affairs, 142 F.3d 1434 (Fed. Cir. 1998).
· cites it 11× “The Board apparently did not consider the effect of a 1992 change in 38 C.F.R. § 3.306 (b), which had the effect of raising the evidentia-ry burden required of the Government when it seeks to overcome the presumption of service-caused aggravation available to peacetime service…”
Cotant v. Principi, 17 Vet. App. 116 (Vet. App. 2003).
· cites it 9× “The Board then determined that, pursuant to 38 C.F.R. § 3.306 (1999), the aggravation of his disability was due to the natural progression of the disease: A presumption of aggravation arises when there is a finding that a preexisting disability increased in severity during…”
Routen v. Brown, 10 Vet. App. 183 (Vet. App. 1997).
· cites it 8× “304 (b) and the presumption of aggravation of a preexisting disease under 38 C.F.R. § 3.306 . However, the Board was not required to reach these issues unless the claim was reopened.”
Hunt v. Derwinski, 1 Vet. App. 292 (Vet. App. 1991).
· cites it 6× “§ 353 and 38 C.F.R. § 3.306 (a) (1990) (which define aggravation for compensation purposes) to those findings involves a question of law.”
Butts v. Brown, 5 Vet. App. 532 (Vet. App. 1993).
· cites it 4× “§ 1153 and 38 C.F.R. § 3.306 (1992) [all subsequent citations to 38 C.”
Dale S. Horn v. Eric K. Shinseki, 25 Vet. App. 231 (Vet. App. 2012).
· cites it 4× “§ 1153 ; 38 C.F.R. § 3.306 (a). Clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service on the basis of all the evidence of record pertaining to…”
Maxson v. West, 12 Vet. App. 453 (Vet. App. 1999).
· cites it 6× “1994) and 38 C.F.R. § 3.306 (b)(2) (1998). R. at 9.”
John F. Davis, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 276 F.3d 1341 (Fed. Cir. 2002).
· cites it 5× “The Secretary has adopted other regulations concerning aggravation under § 1153: “Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability…”
Verdon v. Brown, 8 Vet. App. 529 (Vet. App. 1996).
· cites it 9× “§ 1131 and 38 C.F.R. § 3.306 (a) as .to aggravation of preexisting injuries, and 38 C.”
Phillips v. Brown, 10 Vet. App. 25 (Vet. App. 1997).
· cites it 6× “A § 1154[and] 38 C.F.R. § 3.306 (b)(2).” R. at 157. The BVA issued a decision in February 1992 which stated: The record in this ease has been amplified by the veteran’s statements, including those made under oath, in which he described his exposure to acoustic trauma during his…”
Browder v. Brown, 5 Vet. App. 268 (Vet. App. 1993).
· cites it 6× “§ 1153 (West 1991) and 38 C.F.R. § 3.306 (1992), or explain why the presumption did not apply.”
— 38 C.F.R. § 3.306(B)(1) — 1 case
Lanier v. Hines v. Anthony J. Principi, 18 Vet. App. 227 (Vet. App. 2004).
“In the SOC, the RO cited specifically to " 38 C.F.R. § 3.306 (B)(1)", describing that regulation as providing that "[t]he usual effect of medical and surgical treatment in service, having the effect of ameliorating diseases or other conditions incurred before enlistment,…”
— 38 C.F.R. § 3.306(a) — 1 case
Cotant v. Principi, 17 Vet. App. 116 (Vet. App. 2003).
“The Board then determined that, pursuant to 38 C.F.R. § 3.306 (1999), the aggravation of his disability was due to the natural progression of the disease: A presumption of aggravation arises when there is a finding that a preexisting disability increased in severity during…”
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