[Federal Register Volume 85, Number 177 (Friday, September 11, 2020)]
[Proposed Rules]
[Pages 56189-56192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17672]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3

RIN 2900-AQ80


Aggravation Definition

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes its 
adjudication regulations relating to aggravation of service-connected 
disabilities to more clearly define ``aggravation'' in service-
connection claims. The revisions would explicitly confirm a singular 
definition of ``aggravation'' that includes the requirement of 
``permanent worsening.'' The revisions would also include minor 
organizational and technical changes.

DATES: Comments must be received on or before November 10, 2020.

ADDRESSES: Comments may be submitted through www.Regulations.gov; or 
mailed to: Director, Compensation Service, VASRD Program Office, 
Department of Veterans Affairs, 1800 G St. NW, Room 644, Washington, DC 
20006. Comments should indicate that they are submitted in response to 
``RIN 2900-AQ80, Aggravation Definition.'' Comments received will be 
available Regulations.gov for public viewing, inspection or copies.

FOR FURTHER INFORMATION CONTACT: Keronica Richardson, Policy Analyst, 
VASRD Program Office (210), Compensation Service (21C), Department of 
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 
461-9700. (This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION:

I. Service Connection Based on Aggravation

    For veterans who have injuries or diseases that existed prior to 
service and worsened during service, VA awards service connection and 
compensates them for the increase in disability. 38 CFR 3.306. For the 
purposes of this regulatory preamble, this basis of service connection 
will be referred to as ``in-service aggravation.'' Likewise, for 
veterans who have nonservice-connected injuries or diseases that are 
worsened by service-connected disabilities, VA awards service 
connection and compensates them for the increase in disability. 38 CFR 
3.310. For the purposes of this regulatory preamble, this basis of 
service connection will be referred to as ``post-service aggravation.''
    Both part 3.306 and part 3.310 provide that service connection 
based on aggravation is limited to situations where there is an 
increase in disability not caused by the natural progression of the 
injury or disease. Both regulations also provide that the increase must 
be measurable from an established baseline, although the burden is on 
VA to establish the baseline for purposes of in-service aggravation, 
whereas the burden is on the veteran to submit medical evidence 
establishing a baseline for purposes of post-service aggravation. 
Compare 38 CFR 3.306(b) with 38 CFR 3.310(b); see also 71 FR 52,744, 
52,745 (Sept. 7, 2006) (final rule amending 38 CFR 3.310).
    Section 3.306(a) derives from 38 U.S.C. 1153, which provides that a 
preexisting injury or disease will be considered to have been 
``aggravated'' by active service ``where there is an increase in 
disability during such service,'' unless the increase is due to the 
natural progress of the disease.
    Section 3.310(b) applies aggravation to the context of what is 
often called ``secondary'' service connection--when a service-connected 
disability itself causes a separate disability. Secondary service 
connection derives from the basic entitlement statutes applicable to 
disability compensation: 38 U.S.C. 1110 and 1131. As counterparts for 
wartime and peacetime service, each provides for compensation for 
``disability resulting from personal injury suffered or disease 
contracted in line of duty'' or for ``aggravation of a preexisting 
injury suffered or disease contracted in line of duty.'' Given that 
these basic entitlement statutes also reference in-service aggravation, 
VA proposes to add those references to section 3.306 as well.

II. The Need for Regulatory Amendment

    The primary purpose of this proposed regulatory amendment is to 
provide a singular definition of ``aggravation'' by clarifying two 
phrases contained within 38 CFR 3.306 and 3.310; specifically, 
``increase in disability'' in section 3.306 and ``any increase in 
severity'' in section 3.310. These phrases are not currently defined by 
statute or regulation, but rather by case law.
    The premise that ``disability'' refers to impairment of earning 
capacity is firmly established in 38 U.S.C. 1155 and 38 CFR 4.1. Courts 
have long and consistently recognized this definition in regard to both 
in-service and post-service aggravation. See Davis v. Principi, 276 
F.3d 1341, 1344 (2002) (addressing in-service aggravation of a 
preexisting condition); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en 
banc)

[[Page 56190]]

(addressing post-service aggravation). Both 38 CFR 3.306 and 3.310 
serve the same ultimate goal of compensating veterans for increase in 
disability, whether based on aggravation of a preexisting disability 
(in-service context) or aggravation of a nonservice-connected 
disability (post-service context).
    Although these regulations are built on the same fundamental 
concepts, the differences in their wording have caused confusion over 
how to apply ``aggravation'' in both contexts. Because the phrases 
``increase in disability'' and ``any increase in severity'' are not 
clearly defined, there has been uncertainty over what standard to use 
in determining whether ``aggravation'' is demonstrated. The incongruent 
wording in these two regulations has been a consistent point of 
confusion and contention in the claims process, including on appeal. 
Many appellants have argued that the standard for ``aggravation'' of 
preexisting disabilities that worsened during service (under section 
3.306) is different than for ``aggravation'' of post-service 
disabilities worsened by service-connected disabilities (under section 
3.310). Recently, in the case of Ward v. Wilkie, the United States 
Court of Appeals for Veterans Claims (Veterans Court) held that the 
term ``aggravation'' under section 3.310 (as currently drafted) 
contemplates even temporary flare-ups. 31 Vet. App. 233, 240 (2019).
    Although the Veterans Court discussed the current authorizing 
statutes for 38 CFR 3.306 and 3.310 in order to reach its regulatory 
holding, its statutory analysis was limited. See 31 Vet. App. at 238-
39. The Veterans Court noted that the term ``aggravation,'' although 
present in 38 U.S.C. 1153, ``is not contained in the portions of 38 
U.S.C. 1110 and 1131, from which secondary service connection 
derives.'' 31 Vet. App.at 238. Rather, the Court noted, sections 1110 
and 1131 only use that term as pertaining to a pre-existing condition 
``aggravated'' during service, which would not be applicable in the 
context of post-service aggravation. Id. However, the Veterans Court 
did not hold that sections 1110 and 1131 clearly foreclose a permanent 
worsening requirement in the term ``aggravation.'' Instead, the 
Veterans Court focused its analysis on interpreting section 3.310 as 
currently written, which includes the term ``[a]ny increase in 
severity'' that is not contained in the authorizing statutes. Id. at 
238-39. VA is proposing to clarify its intent by amending the 
regulation in response to this interpretation of its regulation.
    Specifically, VA intends to clarify, through regulatory amendment, 
what the term ``aggravation'' means in sections 3.306 and 3.310, and to 
harmonize those definitions where possible.\1\ Thus, VA proposes 
amending both sections to clarify that the increase in disability must 
be permanent, not merely temporary or intermittent. The changes to 
harmonize sections 3.306 and 3.310 reflect the principle that VA's 
statutory and regulatory scheme should be read as a whole. Further, 38 
U.S.C. 1110 and 1131 authorize VA to provide compensation for 
``disability''; inherent in that conferred authority is VA's authority 
to define what constitutes disability (and, it logically follows, 
``increase in disability'' for purposes of aggravation). See, e.g., 
Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004) (courts 
precluded from reviewing ``what should be considered a disability''); 
Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 330 
F.3d 1345, 1351 (Fed. Cir. 2003) (``38 U.S.C. 501(a) authorizes the 
Secretary to promulgate regulations with respect to the nature and 
extent of proof and evidence necessary to establish entitlement to 
veterans benefits.''). The reason that VA proposes to require an 
enduring, permanent increase in disability to establish service 
connection based on aggravation is that temporary or intermittent 
symptoms are difficult to rate (and thus prone to confusion and error) 
as well as time-consuming to identify and rate (resulting in delayed 
processing times).
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    \1\ VA does not intend to alter the structure of 38 CFR 3.306(b) 
through (c) or revise the standard for demonstrating aggravation of 
a preexisting injury or disease for combat and prisoner-of-war 
veterans under section 3.306(b).
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    VA's proposed changes to section 3.306 are in line with 
longstanding court precedent. See, e.g., Davis, 276 F.3d at 1346-47 
(holding that ``evidence of temporary flare-ups symptomatic to an 
underlying preexisting condition, alone, is not sufficient for a non-
combat veteran to show increased disability under 38 U.S.C. [ ] 1153 
unless the underlying condition is worsened''). VA's proposed changes 
to section 3.310 respond to a growing divergence between the two 
``aggravation'' standards in recent Veterans Court case law based on 
imprecise regulatory language. VA did not intend this divergence, and 
its proposed revisions to realign the two standards of ``aggravation'' 
will supersede the effect of the Veterans Court's recent holding in 
Ward v. Wilkie based on a change in the underlying regulatory text.
    When VA last amended section 3.310, it did so to implement the 
Veterans Court's fundamental holding in Allen v. Brown that service 
connection may be awarded based on aggravation when a veteran's 
nonservice-connected disability is worsened beyond its natural 
progression due to a service-connected disability. The regulation was 
amended to allow a veteran entitlement to compensation for the degree 
of disability (but only that degree) over and above the degree of 
disability existing prior to aggravation. Prior to the Allen holding, 
section 3.310 only addressed secondary service connection. To conform 
section 3.310 to the Allen decision, VA amended it by moving paragraph 
(b) to (c) and creating a new paragraph (b). The new paragraph (b), 
represented by the current text, addressed compensation for the 
incremental increase in severity of a nonservice-connected disability 
worsened by a service-connected condition (i.e., post-service 
aggravation). See 62 FR 30,547 (Jun. 4, 1997) (notice of proposed 
rulemaking); 71 FR 52,744 (Sept. 7, 2006) (final rule). At that time, 
VA did not consider or address the distinction between temporary flare-
ups versus enduring worsening. To the extent that litigation has arisen 
over the boundaries of ``aggravation'' as defined in section 3.310, VA 
intends to clarify those boundaries now.
    Currently, VA adjudicators must consult case law to understand how 
``aggravation'' is defined. By amending 38 CFR 3.306 and 3.310, VA 
would enable its adjudicators--as well as all affected parties--to 
clearly identify and apply a singular definition of ``aggravation'' in 
both regulations.
    Finally, VA also proposes amendments to sections 3.306 and 3.310 to 
use consistent terminology, as well as to make minor, technical changes 
to section 3.310.

III. A Singular Definition

    In light of the uncertainty that exists as to the meaning of 
``aggravation'' in 38 CFR 3.306 and 3.310 and the unintended divergence 
in meaning of the regulatory terms as interpreted in case law resulting 
from imprecise wording in these regulations, VA is proposing to amend 
these regulations to explicitly confirm a singular definition of 
``aggravation.'' This singular definition would apply to all claims for 
service connection, regardless of whether the aggravated condition was 
a preexisting condition that worsened during service or a nonservice-
connected condition that worsened due to a service-connected condition.

[[Page 56191]]

A. Changes to 38 CFR 3.306(a)

    VA proposes to incorporate the longstanding, case law definition of 
``aggravation'' from Davis v. Principi into 38 CFR 3.306(a). This 
revision would remove any ambiguity in the existing text and would 
define what constitutes an ``increase in disability''; the definition 
would include the requirement of ``permanent worsening.'' Accordingly, 
VA proposes to amend paragraph 3.306(a) by adding the following two 
sentences: ``Except as otherwise noted in paragraph (b)(2) in this 
section, service connection will only be warranted if the increase in 
disability is permanent and not attributable to the natural progress of 
the injury or disease. Temporary or intermittent flare-ups do not 
constitute an increase in disability unless the underlying injury or 
disease shows permanent worsening.''

B. Changes to 38 CFR 3.310(a)

    VA proposes to change the introductory heading of 38 CFR 3.310(a) 
from ``General'' to ``Secondary disabilities''. The intent behind this 
change is to clarify the distinction between secondary service 
connection of a disability that only arose post-service and was caused 
by a service-connected disability, addressed in subsection (a), and 
aggravation of a pre-existing disability by a service-connected 
disability, addressed in subsection (b). Both scenarios are 
``secondary'' service connection in the sense that VA is compensating 
for the downstream consequence of a service-connected disability rather 
than a disability that itself arose in service. Both scenarios 
accordingly rely on VA's authority found in 38 U.S.C. 1110 and 1131 to 
compensate disability that is causally related to service, as well as 
VA's underlying rulemaking authority in 38 U.S.C. 501.
    While both scenarios share this similar legal grounding, VA wishes 
to highlight the distinction in order to clarify for rating personnel 
that the concepts are distinct. When an entirely new disability is 
caused by a service-connected disability, VA rates and compensates for 
the entire disability. In the scenario where a pre-existing disability 
is aggravated by a service-connected disability, VA rates and 
compensates only for the extent of the aggravation.
    VA also proposes minor technical corrections to 38 CFR 3.310(a) 
that include grammatical corrections and use of consistent wording. For 
example, the current regulation interchangeably uses the terms 
``disability'' and ``condition''; VA is proposing to use only the term 
``disability'' for consistency. No substantive change to the law of 
secondary service connection in the non-aggravation context is 
intended.

C. Changes to 38 CFR 3.310(b)

    VA proposes to clarify the definition of ``aggravation'' in 38 CFR 
3.310(b) to align it with the definition in 38 CFR 3.306(a), which 
would change the underlying text relied on in the recent Ward v. Wilkie 
decision. This revision would remove any ambiguity as to what 
constitutes aggravation of a nonservice-connected condition by a 
service-connected condition. For further clarity and organization, VA 
proposes to revise paragraph 3.310(b) by dividing it into three 
paragraphs. Paragraph 3.310(b)(1) would provide general guidance and 
would define what constitutes an ``increase in disability''; this 
definition would include the requirement of ``permanent worsening.'' 
paragraph 3.310(b)(2) would describe the requirement of a baseline 
level of severity. This language is already present in the existing 
regulation, and VA only proposes to add a title and nomenclature to 
paragraph 3.310(b)(2). Lastly, paragraph 3.310(b)(3) would describe how 
to determine the extent of aggravation by deducting the baseline level 
of severity from the current level of severity. This language is 
already present in the existing regulation, and VA only proposes to add 
a title and nomenclature to paragraph 3.310(b)(3).

Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
The Office of Information and Regulatory Affairs has determined that 
this rule is a significant regulatory action under Executive Order 
12866.
    VA's impact analysis can be found as a supporting document at 
http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's website at 
http://www.va.gov/orpm/, by following the link for ``VA Regulations 
Published From FY 2004 Through Fiscal Year to Date.''
    This proposed rule is not expected to be an Executive Order 13771 
regulatory or deregulatory action because it is not expected to result 
in more than de minimis costs. Details on the estimated costs of this 
proposed rule can be found in the rule's economic analysis.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (5 
U.S.C. 601-612). This certification is based on the fact that no small 
entities or businesses receive or determine entitlement to VA 
disability compensation. Therefore, pursuant to 5 U.S.C. 605(b), this 
rulemaking is exempt from the initial and final regulatory flexibility 
analysis requirements of sections 603 and 604.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.102, Compensation for 
Service Connected Deaths for Veterans' Dependents; and 64.103, Veterans 
Compensation for Service Connected Disability; 64.110.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Veterans.

Signing Authority

    The Secretary of Veterans Affairs approved this document and 
authorized the undersigned to sign and submit the

[[Page 56192]]

document to the Office of the Federal Register for publication 
electronically as an official document of the Department of Veterans 
Affairs. Pamela Powers, Chief of Staff, Performing the Delegable Duties 
of the Deputy Secretary, Department of Veterans Affairs, approved this 
document on April 14, 2020, for publication.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
the Secretary, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs proposes to amend 38 CFR part 3 as set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

    Authority:  38 U.S.C. 501(a), unless otherwise noted.

0
2. Revise Sec.  3.306 paragraph (a) to read as follows:


Sec.  3.306  Aggravation of preservice disability.

    (a) General. A preexisting injury or disease will be considered to 
have been aggravated by active military, naval, or air service when 
there is an increase in disability during such service. Except as 
otherwise noted in paragraph (b)(2) in this section, service connection 
will only be warranted if the increase in disability is permanent and 
not attributable to the natural progress of the injury or disease. 
Temporary or intermittent flare-ups do not constitute an increase in 
disability unless the underlying injury or disease shows permanent 
worsening.

(Authority: 38 U.S.C. 1110, 1131, and 1153)

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0
3. Revise Sec.  3.310 paragraphs (a) and (b) to read as follows:


Sec.  3.310  Disabilities that are proximately due to, or aggravated 
by, service-connected disease or injury.

    (a) Secondary disabilities. Except as provided in Sec.  3.300(c), a 
disability that is proximately due to or the result of a service-
connected disability shall be service connected. When service 
connection is established for a secondary disability, it shall be 
considered a part of the original disability.
    (b)(1) Aggravation of Nonservice-Connected Disabilities. An 
increase in disability of a nonservice-connected injury or disease that 
is proximately due to or the result of a service-connected disability 
will be service connected on the basis of aggravation. Service 
connection will only be warranted if the increase in disability is 
permanent and not attributable to the natural progress of the injury or 
disease. Temporary or intermittent flare-ups do not constitute an 
increase in disability unless the underlying injury or disease shows 
permanent worsening.
    (2) Baseline Level of Severity. VA will not concede that a 
nonservice-connected injury or disease was aggravated by a service-
connected injury or disease unless the baseline level of severity of 
the nonservice-connected injury or disease is established by medical 
evidence created before the onset of aggravation or by the earliest 
medical evidence created at any time between the onset of aggravation 
and the receipt of medical evidence establishing the current level of 
severity of the nonservice connected injury or disease.
    (3) Extent of Aggravation. The rating activity will determine the 
baseline and current levels of severity under the Schedule for Rating 
Disabilities (38 CFR part 4) and determine the extent of aggravation by 
deducting the baseline level of severity, as well as any increase in 
severity due to the natural progress of the injury or disease, from the 
current level.

(Authority: 38 U.S.C. 501, 1110 and 1131)

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[FR Doc. 2020-17672 Filed 9-10-20; 8:45 am]
BILLING CODE 8320-01-P