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Many veterans are denied VA service connection for medical conditions that existed prior to service. The acronym EPTS means “existed prior to service” and is EPTS is used as a reason to deny a VA claim for disability compensation. Your disability claim rejection may say something along the lines of, we did not find a link between your medical condition and military service, or your rejection may mention that the medical condition for which you are seeking service connection is EPTS.
If a medical condition existed prior to service induction, the VA is not responsible for the health care and disability benefits to cover that condition. However, if a pre-existing medical condition was “aggravated” by service, the VA is responsible for covering that condition.
There are numerous pre-service medical conditions that can become aggravated by service – that would not have worsened to a debilitating level had you not served in the military. Unfortunately, the VA makes mistakes, resulting in thousands of veterans losing out on benefits they rightfully deserve.
If you are filing a claim or appeal for service connection of a pre-existing medical condition, or you’ve been denied service connection for an EPTS medical condition, you’ll want to become familiar with the law surrounding VA service connection for pre-existing conditions: what is allowed, what is required, and when the VA can – and cannot – legally reject these claims.
What Does the VA Consider a Pre-Existing Condition?
To collect disability benefits for a pre-existing condition aggravated by your time in service, you must prove:
- You had a pre-existing condition upon service induction, and
- Your service activities aggravated that pre-existing condition.
Any medical condition, physical or mental, that exists prior to service, can be considered a pre-existing condition – whether or not you were officially diagnosed with the medical condition, and whether or not the military pre-service physical exam detected and recorded (or “noted”) the medical condition before induction. However, if the condition was not “noted” (which means found on the physical exam at induction) at the induction exam, it will much harder for VA to prove that the condition pre-existed service. This is because unless a defect was “noted” at the induction exam, a veteran will be presumed to be in sound condition at the time of entrance into the service. This is called the presumption of soundness.
Past medical or military records showing a diagnosis of the condition prior to service are the most powerful forms of evidence used to prove a pre-existing condition. Genetic, congenital, or inherited conditions are automatically considered to be EPTS.
While proving an EPTS condition is much more challenging when the condition was not recorded during your entrance physical exam, or when you do not have some other record of a diagnosis, it does happen and veterans should be aware of the pitfalls.
Witness statements from friends and family about your past symptoms or experiences can serve as strong evidence. These statements would be used in situations where VA was trying to claim that the condition EPTS despite it not being noted on induction. In this situation, any evidence to show that you were normal before the military would help defeat an argument that your condition EPTS. In addition, you can request that your doctor review your past medical records and prepare a letter for the VA stating that you suffered from symptoms in the past or were treated for certain conditions in the past.
For the VA to consider your condition as pre-existing when it was not noted at induction, evidence (usually expert medical opinions) must rise to the level of “clear and unmistakable evidence” that your medical condition existed prior to service. The term “clear and unmistakable” means the doctor’s opinion must confirm (not merely suggest) that your medical condition existed prior to service and must supply detailed medical evidence, including a rationale to support that confirmation. An easy way to look at the concept of “clear and unmistakable evidence” is that it must be so clear that reasonable minds could not argue about it.
Examples of EPTS Medical Conditions Aggravated by Service
As stated above, any physical or mental condition can be considered a pre-existing condition. And various events during service can make a physical or mental condition worse. These cases are often very specific to each individual, and reliant on the interaction between service activity and the condition.
Some examples of common pre-existing conditions that can be aggravated by military service include:
- Flat feet (Pes Planus)
- Genetic conditions
- Bone fractures
- Knee injuries
- Traumatic brain injury
- Stress fractures
- Neck pain
- Back pain (like spina bifida or scoliosis)
- Muscle injuries
- Herniated discs
- Persistent depressive disorder
- Obsessive compulsive disorder
- Generalized anxiety disorder
- Asthma
- Gastrointestinal disorders
- Sleep disorders
- Allergies
- Respiratory disorders
- Infectious diseases
- Hip injuries
- Heart conditions
- Eye or ear conditions
- Eating disorders
- Diabetes
Various in-service events can aggravate a pre-existing medical condition, including toxin exposure (vehicle exhaust, generator exhaust, sand and dust inhalation, burn pit exposure, contaminated water exposure, physical exertion, injury, or infectious disease.
Case Example:
A good example of how to handle a case involving a pre-existing condition comes from our actual case files. We represented a veteran who made a claim for hydronephrosis. Hydronephrosis is swelling of one or both kidneys. The swelling usually happens because of urine being unable to evacuate from the kidney, which causes the kidney to swell. This can happen from several sources such as a blockage or perhaps an anatomical defect that does not allow urine to evacuate normally.
The VA denied our client’s claim for hydronephrosis on the grounds that they condition E PTS or existed prior to service. On examination, they discovered that he had what’s called an ectopic kidney. And ectopic kidney is a congenital condition where persons kidney is not located in the normal place but is mislocated in another part of the body.
Typically, a person can have this condition and never know it because his kidneys are otherwise functioning normally. However, if the kidney is located in an unusual position such that it could be more susceptible to trauma, then a person could develop some complications that would not otherwise be the case but for the ectopic kidney. In this particular case, the veteran was on the boxing team when he was in the service.
His kidney was located more on his side and in a location that would have received repeated trauma during a boxing match. His ectopic kidney was causing no problems whatsoever prior to his boxing career in the military. But apparently, he took some trauma to that kidney and a blockage occurred resulting in hydronephrosis of that kidney.
We successfully one this client’s case on the grounds that a non-congenital condition was superimposed on top of the congenital condition. The hydronephrosis was a non-congenital condition that he likely incurred because of the ectopic kidney, which was pre-existing and congenital.
Practical Tip: Always consider whether a new condition was superimposed on top of a pre-existing congenital condition.
How Do I Prove Aggravation of a Pre-Existing Condition?
Under 38 CFR § 3.306, “a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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.”
In other words, there is a presumption of aggravation of a pre-existing medical condition if got worse due to service, but the VA can overcome that by showing that the increase in severity was due to natural progression.
It is very important that you supply concrete evidence that your time in service contributed to your condition worsening to its current level of severity, and that the current level of severity was not just the natural progression of disease.
For example, say you were diagnosed with flat feet as a child, but you never really had any problems. You just had to wear comfortable shoes. Fast forward to age 20. You decide to enter the military. Your entrance exam notes that you had mild congenital Pes Planus but accepts you for service. No symptoms were noted on the exam.
Four years later, you return home safe but are suffering from debilitating chronic pain in your feet, and knees and are diagnosed with degenerative disk disease (DDD) and severe flat feet or Pes Planus.
Had it not been for the extreme physical exertion that you experienced during service – long periods of walking and running, carrying heavy loads, crouching – your flat foot condition would not have naturally progressed to chronic pain and secondary problems like DDD.
Practical Tip: Speaking of VA disability for flat feet, often a severe foot condition can alter the way you walk. This is called an antalgic gait. It means that you are changing your normal body mechanics to compensate for pain. In time, this pain can cause abnormal changes to the joints. Specifically, lower extremity pain conditions that change how you walk can, in time, cause lower back degenerative disc problems.
But back to our example: it is obvious that the time in service aggravated the pre-existing condition, and the VA should service connect this veteran for flat feet on the theory of it being aggravated by service.
But in many cases, the evidence is not so straightforward. For example, maybe you broke your leg at age twelve. It healed nicely, but after military service you suffer chronic, debilitating leg pain. Since you didn’t injure your leg during service, the VA doesn’t accept that your time in service caused your chronic, debilitating leg pain. Keep in mind that a mere history of a condition prior to service does not mean that the condition was “noted” on the induction exam. There is a difference in the law between a veteran filling out a medical history form, such as history of chicken pox in the past, versus actually having chicken pox when he presents for his induction exam.
However, in our fractured leg example, you could establish service connection for chronic pain or immobility due to a pre-existing fracture aggravated by military service IF you had strong military, clinical, and scientific evidence showing that:
- Your broken bone was not likely to worsen into chronic pain naturally,
- Overuse or extreme weight bearing can cause permanent nerve damage or stress fractures around the site of a former bone fracture, AND
- During your time in service, you frequently had to carry heavy loads, climb structures, jump, squat, and run.
Proving these three elements to the VA requires providing military records that show your level of activity during service. It also requires a medical nexus letter containing an expert medical opinion that overuse or extreme weight-bearing can cause permanent damage around the site of a former bone fracture, and that your broken bone would’ve been fine were it not for the overuse.
Without concrete evidence of aggravation of an EPTS condition, it can be difficult to win service connection. But it can be done!