Aggravation:

BVA Citation Nr: 0724969

A veteran is deemed to have been in sound condition when 
examined, accepted, and enrolled for service, except as to 
defects, infirmities, or disorders noted at the time of 
examination, acceptance, and enrollment.  However, where 
there is "clear and unmistakable" evidence that the injury 
or disease claimed pre-existed service, the issue is whether 
the disease or injury was aggravated during service. 38 
U.S.C.A. 
§ 1111 (West 2002); 38 C.F.R. § 3.304(b) (2006); Wagner v. 
Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The presumption 
of soundness is rebutted by clear and unmistakable evidence 
that the disease or injury pre-existed service and was not 
aggravated by service.
 
Pre-existing injury or disease will be considered to have 
been aggravated by active 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 a natural 
progress of the disease. Aggravation is not 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. 38 U.S.C.A. 1153 (West 2002); 38 
C.F.R. 3.306(b) (2006); Falzone v. Brown, 8 Vet. App. 398, 
402 (1995). 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 itself, as contrasted with mere symptoms, has 
worsened. See, e.g., Jensen v. Brown, 4 Vet. App. 304, 306-
307 (1993).
 
The presumption of soundness attaches only where there has 
been an induction examination during which the disability 
about which the veteran later complains was not detected. 
See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The 
regulations provide expressly that the term "noted" denotes 
"[o]nly such conditions as are recorded in examination 
reports," 38 C.F.R. § 3.304(b), and that "[h]istory of 
preservice existence of conditions recorded at the time of 
examination does not constitute a notation of such 
conditions." Id. at (b)(1).
 
The burden to show no aggravation of a pre-existing disease 
or disorder during service is an onerous one that lies with 
the government. See, e.g., Cotant v. Principi, 17 Vet. App. 
117, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 
(1993). Importantly, VA General Counsel determined that VA 
must show by clear and unmistakable evidence that there is a 
pre-existing disease or disorder and that it was not 
aggravated during service. The claimant is not required to 
show that the disease or injury increased in severity during 
service before VA's duty under the second prong of this 
rebuttal standard attaches. VAOPGCPREC 3-03 (July 16, 2003). 
The Board is bound to follow General Counsel's precedent 
opinions. 38 U.S.C.A. § 7104(c) (West 2002).
 
In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the 
U.S. Court of Appeals for the Federal Circuit summarized the 
effect of 38 U.S.C.A. § 1111 on claims for service-connected 
disability:
 
When no preexisting condition is noted upon 
entry into service, the veteran is presumed 
to have been sound upon entry. The burden 
then falls on the government to rebut the 
presumption of soundness by clear and 
unmistakable evidence that the veteran's 
disability was both preexisting and not 
aggravated by service. The government may 
show a lack of aggravation by establishing 
that there was no increase in disability 
during service or that any "increase in 
disability [was] due to the natural progress 
of the" preexisting condition. 38 U.S.C. § 
1153. If this burden is met, then the 
veteran is not entitled to service-connected 
benefits. However, if the government fails 
to rebut the presumption of soundness under 
section 1111, the veteran's claim is one for 
service connection. This means that no 
deduction for the degree of disability 
existing at the time of entrance will be made 
if a rating is awarded. See 38 C.F.R. § 
3.322.
 
On the other hand, if a preexisting disorder 
is noted upon entry into service, the veteran 
cannot bring a claim for service connection 
for that disorder, but the veteran may bring 
a claim for service-connected aggravation of 
that disorder. In that case section 1153 
applies and the burden falls on the veteran 
to establish aggravation. See Jensen v. 
Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 
If the presumption of aggravation under 
section 1153 arises, the burden shifts to the 
government to show a lack of aggravation by 
establishing "that the increase in 
disability is due to the natural progress of 
the disease." 38 U.S.C. § 1153; see also 38 
C.F.R. § 3.306; Jensen, 19 F.3d at 1417.
 
Wagner, 370 F.3d at 1096 (Fed. Cir. 2004).