Ward v. Wilkie
31 Vet. App. 233 (2019). Court of Appeals for Veterans Claims, Nos. 16-2157 and 17-1204 (consolidated), Chief Judge Davis; Judge Greenberg concurring in part and dissenting in part. Precedential. Board decisions set aside, claims remanded.
The facts, because they are ordinary
Mr. Ward, a Navy veteran, claimed a bilateral hip condition resulting from stress caused by his service-connected disabilities. Mr. Neal, an Army veteran, claimed a low back disability from favoring his service-connected left knee. Favoring one joint and wearing out another is among the most common secondary claims there is.
The Board remanded both cases with instructions telling VA examiners that aggravation of a non-service-connected condition required a "permanent worsening" of it.
What it holds
That requirement is unlawful. The court held the Secretary's imposition of a "permanent worsening" standard was "an impermissible attempt to add requirements that appear in neither the enabling statute nor in the implementing regulation for secondary service connection."
The reasoning is short. 38 U.S.C. §1110 and 38 C.F.R. §3.310 are what govern a secondary claim, and the word "aggravation" is not in the parts of them that secondary service connection derives from. The regulation says "any increase in severity" of a non-service-connected condition proximately due to a service-connected one will be service connected. Compensating only the incremental disability attributable to the service-connected condition does not require that the increase be permanent.
VA had imported "permanent worsening" from a different body of law — the presumption of aggravation for conditions that pre-existed service, under §1153 and 38 C.F.R. §3.306. Those are a different question with a different statute behind it. The court kept the two senses of "aggravation" apart explicitly, and treated the secondary sense as meaning any increase in disability.
The part that is easy to miss
VA had written the "permanent worsening" requirement into its own Adjudication Procedures Manual, effective November 30, 2017. So this was not one Board panel's error; it was agency-wide instruction. The appellants asked the court to certify a class of veterans subject to the standard. The court denied the motion — on the ground that a precedential opinion "should have full effect throughout VA," so a class was unnecessary.
That is the practical takeaway. If a decision or an examination request in your file uses "permanent worsening" on a secondary claim, it is applying a standard a court struck down in 2019.
What it does not do
It does not establish aggravation in any particular claim, and it does not dispense with the baseline comparison that §3.310(b) sets up. It removes one requirement that was never in the law. On the other limit the courts have placed on §3.310(b), see Spicer.
Finding the opinion
The court's official PDF: WardLM_16-2157.pdf. Published at 31 Vet. App. 233.
Educational summary. The decision addressed the facts and issues identified above; its outcome does not predict another claim. Check its precedential status and subsequent history before relying on it.
Reviewed October 6, 2026