NLSVCC Opposes VA's Proposed Amendment to Require that "Aggravation" be Permanent - by Jillian Berner (UIC John Marshall Law School)

Members of the NLSVCC Government Affairs and Advocacy Committees collaborated this fall to prepare a comment related to a proposed VA amendment of the regulatory definition of “aggravation.” VA’s proposed amendment would require a permanent increase in disability under 38 C.F.R. §§ 3.306 (aggravation of pre-service condition) and 3.310 (aggravation of service-connected condition), rather than “temporary” or “intermittent.” Committee members Judy A. Clausen, Robert R. Davis, Amy B. Kretkowski, Chad Lennon, Zachary D. Ross, and Claudia M. Velasquez drafted the comment. 

The NLSVCC committee members argued that the change was driven only by VA’s reasoning that temporary and intermittent symptoms were “difficult and time-consuming” and would deny compensation to veterans whose loss of earning capacity might not be long-lasting, but still affects their livelihood and occupational functioning. The committee members wrote that the proposed change contradicted the framework and purpose of VA disability compensation, which is based on any impairment in earning capacity caused by service-connected disabilities. Further, the law doesn’t require a showing of permanent worsening, so the proposed change would improperly raise the hurdle for veterans to obtain compensation. The regulations allowing for convalescent, hospitalization, and ratings for unstabilized conditions also indicate contrary intent for the benefits scheme. They also wrote that the proposed rule didn’t account for the true nature of disabilities, which can ebb and flow. This is especially important for mental health conditions, but physical conditions may also be episodic, and many disability rating codes account for these fluctuations.

The NLSVCC comment also included a cautionary note that aggravation must be adjusted carefully, because no veteran could ever prove permanency—when is “permanency” achieved? Additionally, Social Security, workers’ compensation, and other disability contexts show that the VA is capable of identifying and rating symptoms of service-connected disabilities, even if they are not “permanent.” The VA insinuates that this change will improve efficiency and processing speed, but the committee members posited that the change would actually make adjudication more complicated and places a higher burden on the veteran.

You can review the proposed rule and other comments submitted here: https://www.federalregister.gov/documents/2020/09/11/2020-17672/aggravation-definition.