(a) Aggravation of preservice disability. In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. It is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule except that if the disability is total (100 percent) no deduction will be made. If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made.
(b) Aggravation of service-connected disability. Where a disease or injury incurred in peacetime service is aggravated during service in a period of war, or conversely, where a disease or injury incurred in service during a period of war is aggravated during peacetime service, the entire disability flowing from the disease or injury will be service connected based on the war service.
Cross References:Principles relating to service connection. See § 3.303. Aggravation of preservice disability. See § 3.306.
[26 FR 1583, Feb. 24, 1961]
Notes of Decisions
Cotant v. Principi, 17 Vet. App. 116 (Vet. App. 2003).
· cites it 3× “As a result of 38 C.F.R. § 3.322 (a) and § 4.22, the rating of a condition found to be service connected on the basis of aggravation is derived by “deducting] from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance…”
Allen v. Brown, 7 Vet. App. 439 (Vet. App. 1995).
“Cf 38 C.F.R. § 3.322 (1994) (in compensating for aggravation of a preservice disability by active service, it “is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the…”
David P. Hill v. Robert A. McDonald, 28 Vet. App. 243 (Vet. App. 2016).
“See 38 C.F.R. § 3.322 (a) (2016) (“In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at…”
190528-49749 (Board of Vet. App. 2020).
· cites it 2× “§§ 1155 , 5107; 38 C.F.R. §§ 3.322 , 4.7, 4.22, 4.71a, Diagnostic Code 5276.”
Hayes v. Derwinski, 3 Vet. App. 7 (Vet. App. 1991).
“The Board did not discuss, if it was a pre-existing condition, whether it was aggravated by service, see 38 C.F.R. § 3.322 (1990), nor did the Board provide any medical basis for its “opinion” that there is “no superimposed traumatic psychopathology,” nor for its conclusion that…”
12-17 725 (Board of Vet. App. 2017).
“38 C.F.R. § 3.322 . Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.”
11-26 045 (Board of Vet. App. 2016).
“at 1096 (citing 38 C.F.R. § 3.322 ). In other words, the claim may not be denied, nor benefits deducted, on the bas is of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not…”
Larry M. Ward & Gabriel S. Neal v. Robert L. Wilkie (Vet. App. 2019).
“322 (1994) (in compensating for aggravation of a preservice disability by active service, it "is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule .”
Joyce v. Nicholson (Fed. Cir. 2006).
“BACKGROUND Disability compensation for veterans is typically of two different types -- one for service connection where the injury or disease first manifested itself during service and another for in-service aggravation when a preexisting injury or disease is aggravated by…”
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