Do You Still Need a Baseline for Secondary Aggravation After Spicer? What the Law Says vs. What VA Is Doing
- 1.What the Baseline Requirement Was
- 2.What Spicer Did to § 3.310(b)
- 3.What the Statute Actually Says About Baselines
- 4.What VA Is Actually Doing Right Now
- 5.Two Different Questions Everyone Is Conflating
- 6.The Rule That Protects You When No Baseline Exists
- 7.What This Means for Your Nexus Letter — Three Scenarios
- 8.How This Changes for Treatment-Interference Claims
- 9.What to Do If VA Denies for Lack of Baseline
- 10.Frequently Asked Questions
KEY TAKEAWAY
The baseline requirement for secondary aggravation claims came from 38 C.F.R. § 3.310(b). The Federal Circuit struck down that regulation in Spicer v. McDonough. The statute (38 U.S.C. § 1110) says nothing about baselines. But as of May 2026, VA has not formally rewritten the regulation, and C&P exam templates still ask examiners to address baseline. Here's the key: the exam templates themselves say the aggravation question must be answered "regardless of an established baseline." The baseline is a rating tool, not a gatekeeping tool. When it can't be determined, §§ 3.22 and 4.22 mean no deduction — the veteran gets the full current rating.
If you've filed a secondary aggravation claim, you've probably heard that you need to "establish a baseline" of the non-service-connected condition before VA will grant aggravation. That requirement came from 38 C.F.R. § 3.310(b). And in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit struck that regulation down.
So do you still need a baseline? The honest answer: the law says one thing, VA is doing another, and the practical strategy depends on understanding both.
What the Baseline Requirement Was
Under the old 38 C.F.R. § 3.310(b), the regulation governing secondary aggravation, VA would "not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence."
In practice, that meant three things. First, the C&P examiner had to identify what the non-service-connected condition looked like before the service-connected condition started making it worse — that's the "baseline." Second, the examiner had to identify the current severity. Third, VA would calculate the difference — the "increment of worsening" — and only compensate for that increment.
If your hypertension was 10% before aggravation and 30% after, VA would rate only the 20% increment attributable to the service-connected condition. That's the Allen v. Brown, 7 Vet. App. 439 (1995) framework — compensation "for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." The 2006 regulatory amendment to § 3.310(b) codified Allen — but added language making the baseline a hard gatekeeping requirement.
What Spicer Did to § 3.310(b)
The Federal Circuit didn't adjust § 3.310(b). It struck it down. The court's language: "To the extent that the VA also applied 38 C.F.R. § 3.310(b) to reject Mr. Spicer's theory of compensation, that regulation is unlawful as inconsistent with 38 U.S.C. § 1110."
The court's reasoning: § 3.310(b) imposed a "proximate cause" standard tighter than what the statute demands. Section 1110 requires only but-for causation. The regulation went beyond the statute. That made it unlawful.
The Critical Question
When the Federal Circuit struck down § 3.310(b), did it eliminate only the proximate-cause standard within the regulation, or the entire regulation including the baseline requirement?
The court's opinion focused on the causation standard. It did not separately analyze the baseline requirement. It did not say "the baseline survives" and did not say "the baseline is eliminated." The opinion struck down § 3.310(b) as a whole because the regulation was inconsistent with the statute.
What the Statute Actually Says About Baselines
38 U.S.C. § 1110 — the statute Spicer interpreted — says nothing about baselines. It provides compensation "[f]or disability resulting from personal injury suffered or disease contracted in line of duty." No mention of baseline levels of severity. No mention of deductions for pre-existing impairment in the secondary context. No gatekeeping threshold.
The baseline requirement was a regulatory creation — added by VA in the 2006 amendment to § 3.310(b). It was not in the original regulation, was not in the Allen decision itself (Allen described the compensation calculation, not a threshold requirement), and is not in the statute.
If the regulation housing the baseline requirement has been declared unlawful, and the statute doesn't mention baselines, there is a strong legal argument that VA cannot use absence of a baseline to deny a secondary aggravation claim.
What VA Is Actually Doing Right Now
Despite Spicer, VA is absolutely still asking for baselines — and not just in theory. C&P exam templates, rater training, and the regulation itself all still reference the baseline requirement. The May 2026 M21-1 update incorporates the Spicer but-for standard, but VA has not formally rewritten or withdrawn § 3.310(b) as a regulation. The baseline question is alive and well in practice.
WHERE THINGS STAND RIGHT NOW
The M21-1 (updated May 1, 2026) reflects the Spicer but-for standard. The Code of Federal Regulations still contains the original § 3.310(b) language, including the baseline requirement. VA raters follow both sources. In practice, this means baselines are still being requested — but the legal framework for how they're used is evolving. Understanding how to work within both frameworks is the key to a successful aggravation claim.
What Your C&P Examiner Is Actually Being Asked
When a C&P examiner evaluates a secondary aggravation claim, the exam template walks them through a structured sequence. Understanding this structure helps you prepare — and helps your nexus letter address the right questions. Here's what the aggravation section of a typical contracted C&P exam template looks like:
AGGRAVATION SECTION - C&P EXAM TEMPLATE STRUCTURE.
Step 1 — Baseline Assessment: The examiner is asked whether a baseline level of severity can be determined. If yes, they describe the baseline and provide the date and source of evidence. If no, they explain why (lack of records, no documentation prior to aggravation).
Step 2 — Aggravation Opinion: The template then states — "Regardless of an established baseline" — the examiner must choose whether the claimed condition is at least as likely as not aggravated by the service-connected condition, or less likely than not aggravated.
That word "regardless" is important for veterans to understand. The exam template treats the baseline question and the aggravation question as two separate inquiries. The examiner must answer the aggravation question whether or not a baseline was established. This means a positive aggravation finding is possible even when no baseline evidence exists.
When the examiner determines that a baseline cannot be established and that aggravation is at least as likely as not, that's a positive finding with no baseline. Under §§ 3.22 and 4.22, when the pre-aggravation severity cannot be determined, no deduction is made — the veteran receives the full current rating.
What to Watch for in Your C&P Exam Results
If your C&P examiner determined that a baseline could not be established and then rendered a negative aggravation opinion, look closely at the rationale. The inability to establish a baseline does not, by itself, answer the question of whether aggravation occurred — the exam template treats them as separate questions. If the rationale for the negative opinion relies primarily on the absence of baseline evidence rather than an independent medical analysis of whether aggravation occurred, your nexus letter can address that gap. A strong nexus letter should provide an independent medical opinion on aggravation under the but-for standard, separate from the baseline question.
The practical reality: VA is applying the but-for causation standard from Spicer while continuing to ask about baselines for rating purposes. The exam template shows both happening simultaneously — the baseline question is asked, but the aggravation question must be answered regardless. Those are two different operations. Understanding the distinction is the key.
Two Different Questions Everyone Is Conflating
Most of the confusion comes from mixing up two separate questions. Once you see the difference, the baseline issue gets a lot simpler.
Question 1: "Can VA refuse to even look at my aggravation claim because there's no baseline?"
Think of this as the door question — can VA shut the door on your claim before looking at the medical evidence, just because nobody documented how bad your condition was before it got worse?
Under the old § 3.310(b), the answer was yes. The regulation said VA "will not concede" aggravation without a baseline. No baseline, no grant — full stop.
After Spicer, that wall has cracks. The Federal Circuit found § 3.310(b) inconsistent with the statute (§ 1110), and the statute says nothing about needing a baseline before VA can consider your claim. So if your claim was denied solely because VA couldn't establish a baseline — not because the medical evidence didn't support aggravation, but just because the baseline number was missing — that denial is worth a closer look.
Question 2: "If VA grants aggravation, how do they figure out how much to pay me?"
This is the math question — and it's completely separate from the door question.
Here's a simple example. Say you have hypertension that was mild (10% level) before your service-connected PTSD made it worse, and now it's moderate (30% level). VA doesn't automatically rate you at 30%. For aggravation claims, they subtract the baseline — what the condition was before the SC disability made it worse. So 30% current minus 10% baseline equals a 20% rating. That's the Allen v. Brown framework.
Your effective date — when VA starts paying you — is still based on when you filed. The baseline deduction doesn't change when you get paid. It changes how much you get paid each month, because it determines whether you're rated at 20% or 30%.
To calculate that deduction, VA needs a starting number — the baseline. That's why they still ask for it.
But here's what most veterans don't know: what happens when there is no starting number? When no records exist to show how bad the condition was before aggravation?
The Rule That Protects You When No Baseline Exists
The Safety Net Most Veterans Don't Know About
Under 38 C.F.R. §§ 3.22 and 4.22, when the degree of disability prior to aggravation cannot be determined, no deduction is made. The veteran receives the full current rating with no baseline subtracted..
Back to the hypertension example. If VA grants aggravation but can't determine that the pre-aggravation baseline was 10% — because there are no early blood pressure readings, or early records were lost — then VA doesn't subtract anything. You get rated at the full 30% instead of just 20%. That means a higher monthly payment from your effective date forward.
The logic is straightforward: the absence of baseline evidence shouldn't penalize you. If VA can't figure out the starting number, you get the benefit of the doubt under 38 U.S.C. § 5107(b) — which means the full current rating. The Board has applied this rule in real cases where no medical evidence established the condition's severity before aggravation began.
Putting It Together
"Can they deny my claim because there's no baseline?" — After Spicer, the regulation that allowed this was found inconsistent with the statute. If your claim was denied solely on this basis, it's worth exploring your options.
"Will they subtract what I had before?" — For aggravation claims, yes — VA uses the Allen framework to rate only the increment of worsening. But if they can't determine what you had before, they subtract nothing — you get rated at the full current severity.
Either way, missing baseline evidence should not be the reason your claim fails..
What This Means for Your Nexus Letter — Three Scenarios
SCENARIO AYou Have Baseline Evidence
If your medical records contain evidence of the secondary condition's severity before aggravation began — earlier imaging, blood pressure readings, pulmonary function tests, GI symptom documentation, mental health assessments — use it.
Nexus Letter Language
"The veteran's [condition] was documented at [severity level / specific measurements] in records from [date], prior to the onset of aggravation by his/her service-connected [condition]. Current severity is [level / measurements], representing an increase of [X] attributable to [explain mechanism].".
This gives the rater everything needed to grant and rate in one step. Including baseline evidence when you have it isn't legally required after Spicer — it's a strategic advantage.
SCENARIO BYou Don't Have Baseline Evidence
This is the scenario that matters most. Many veterans don't have clean baseline evidence. Maybe they never sought treatment before aggravation started. Maybe early records are lost. Maybe onset was too close together for a pre-aggravation snapshot.
After Spicer, your nexus letter should: (1) address aggravation directly under the but-for standard, (2) acknowledge the baseline question honestly — if no pre-aggravation records exist, say so, (3) explain why the absence should not defeat the claim — cite §§ 3.22 and 4.22, and (4) if possible, provide a clinical baseline estimate.
Clinical Estimate Language
"Based on the veteran's age, medical history, and the typical trajectory of [condition] in the absence of [aggravating factor], it is my clinical estimate that the baseline severity of [condition] prior to aggravation would have been approximately [mild / 10% rating-level / specific metrics]. Pre-aggravation medical records documenting baseline severity are not available in the veteran's file.".
This estimated baseline gives VA a number to work with even when records are thin. It's stronger than silence and it's often enough.
SCENARIO CThe Condition Didn't Exist Before the SC Disability
If the secondary condition didn't exist at all before the service-connected condition contributed to its development, you're in causation territory (§ 3.310(a)), not aggravation. No baseline is needed or relevant because there was no pre-existing condition.
Make sure the nexus letter clearly identifies which theory applies. If the secondary condition is entirely new — caused by the SC condition, not worsened by it — frame as causation, not aggravation. The baseline question doesn't arise.
How This Changes for Treatment-Interference Claims
Spicer created the treatment-interference pathway. For these claims, the relevant comparison isn't "what was the condition like before aggravation" — it's "what would the condition be like today if treatment had not been impeded?"
The Federal Circuit in Spicer specifically addressed this. The court noted that Mr. Spicer sought "an assessment of the delta between his current condition and what it would have been post corrective knee surgery." The court found that "such an assessment would seem within the VA's capabilities, especially given the VA's everyday use of medical opinions to guide its factfinding."
Treatment-Interference Baseline Language
"In my clinical opinion, had the veteran been able to undergo [specific treatment] that was prevented by his/her service-connected [condition], the current severity of [secondary condition] would be approximately [lower severity level]. The difference between the expected post-treatment severity and the veteran's current severity represents the disability attributable to the treatment interference."
This is a forward-looking clinical judgment, not a backward-looking records question — which makes it more accessible when historical records are thin. The clinician is estimating treatment outcomes, which is squarely within medical expertise.
This is a forward-looking clinical judgment, not a backward-looking records question — which makes it more accessible when historical records are thin. The clinician is estimating treatment outcomes, which is squarely within medical expertise.
What to Do If VA Denies for Lack of Baseline
Higher-Level Review (HLR): If the evidence supports aggravation but the rater denied solely for lack of baseline, consider requesting an HLR. The legal argument: the Federal Circuit in Spicer found § 3.310(b) inconsistent with § 1110, and the statute does not require a baseline as a prerequisite for granting aggravation.
Supplemental Claim: A new nexus letter addressing the but-for standard, providing a baseline estimate if possible, and explaining why absence of documented baseline should not defeat the claim under §§ 3.22 and 4.22, constitutes "new and relevant" evidence. For more on what counts as new and relevant, see: Spicer v. McDonough & the But-For Standard.
Board Appeal: BVA decisions from 2024 and 2025 show that the Board is actively applying Spicer and remanding cases where C&P opinions were based on the old proximate-cause standard or failed to address aggravation adequately.
The Bottom Line
As a gatekeeping requirement (can VA deny solely because no baseline exists): the Federal Circuit in Spicer found § 3.310(b) inconsistent with § 1110. The statute doesn't require a baseline as a prerequisite. If your claim was denied on this basis alone, it's worth exploring your appeal options.
As a rating tool (does VA need a baseline to calculate compensation): yes practically, but when it can't be determined, §§ 3.22 and 4.22 mean no deduction — the veteran gets the full current rating.
As a strategic element of your nexus letter: include it when you have it (advantage, not requirement). When you don't, address it directly, cite the safety net, and give VA a clinical estimate if possible.
Frequently Asked Questions
Is a baseline still required for VA secondary aggravation claims after Spicer?
The legal requirement is in flux. The Federal Circuit struck down § 3.310(b) — the regulation housing the baseline requirement. The statute (§ 1110) says nothing about baselines. But as of May 2026, the regulation still appears in the CFR with its original language. VA raters are caught between an invalidated regulation and an updated M21-1. Include baseline evidence when available and explain why its absence should not defeat the claim under §§ 3.22 and 4.22.
What happens when no baseline evidence exists?
Under 38 C.F.R. §§ 3.22 and 4.22, when pre-aggravation severity cannot be determined, no deduction is made. The veteran receives the full current rating with no baseline subtracted. The Board has applied this in real cases. The absence of evidence should not penalize the veteran.
Can VA deny my claim solely for lack of a baseline?
After Spicer, this is worth examining closely. The Federal Circuit found § 3.310(b) inconsistent with the statute. The statute doesn't require a baseline as a prerequisite for granting aggravation. If your claim was denied on this basis, it may be worth exploring a Higher-Level Review, Supplemental Claim, or Board appeal.
How should my nexus letter handle the baseline question?
If evidence exists, include it — it makes the opinion stronger. If not, state that directly, cite §§ 3.22 and 4.22, and provide a clinical estimate if possible. For treatment-interference claims, the relevant comparison is estimated post-treatment severity, not pre-aggravation severity.
The C&P examiner couldn't establish a baseline and gave a negative aggravation opinion. What should I do?
Look closely at the rationale. C&P exam templates treat baseline and aggravation as separate questions — the template states "regardless of an established baseline" the examiner must still address aggravation. If the negative opinion relies primarily on the absence of baseline evidence rather than an independent medical analysis of whether the SC condition worsened the claimed condition, there may be a gap your nexus letter can address. A strong nexus letter provides an independent aggravation opinion under the but-for standard, separate from the baseline question, and if possible offers a clinical baseline estimate.
What's the difference between baseline as gatekeeping vs. baseline as rating tool?
As gatekeeping: "no baseline, no grant" — that function came from § 3.310(b), which Spicer struck down. As rating tool: VA calculates the increment of worsening. When the baseline can't be determined, §§ 3.22 and 4.22 say no deduction — meaning the veteran gets the full current rating.
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Get Free ConsultationDr. Kishan Bhalani is a subject matter expert on VA disability claims documentation, with more than five years of focused work at the intersection of clinical m…
Dr. Kishan Bhalani is a subject matter expert on VA disability claims documentation, with more than five years of focused work at the intersection of clinical m…
Originally published May 30, 2026 • Last updated May 30, 2026