Does "less likely than not" preclude aggrevation?

[purexattrition]

I completed my CP exam and the examiner, in short, said my condition (MH issue) was "less likely than not" incurred in the service due to it existing before I enlisted. Is there anything additional I need to do to claim that if they want to say it was not incurred then it was at least aggravated by service? Is the connection of aggravation as strong as it being incurred in the service? Will the rating officer take this into consideration, or do I need to specify that it was aggravated? The CP exam doesn't make any mention of this, only that it wasn't incurred, so I'm confused. Thank you.

[TexasMarine]

Were there any pre-service documents made available to the C&P examiner?  Otherwise, he shouldn't have been able to opine that there was an issue prior to service.  You are given a "clean bill of health" when you take your entrance examination (unless you were given a waiver of some sort, but that is very unlikely in the case of MH).

If there was a (MH) health issue prior to service, then surely it was aggravated by your service.  Military service (as a young man/woman especially), is definitely more stressful than that of our civilian counterparts, combat or not.  But, you'll need a doctor to say it in an Independent Medical Opinion (IMO).  Aggravation holds as much weight as causation.

You could argue yourself these issues, but it would be much better if you had a doctor opine on your behalf.

In some ways, the C&P doctor did you a favor because his opinion at least placed the MH issue within the scope of your service (service connected).  Now you just have to prove some stressful event or events made you worse, or argue that service life is stressful in and of itself.

 

 

Edited January 14, 2016 by TexasMarine
spelling correction

[Gastone]

A Redacted Copy of your C & P DBQ might shed some light. Keep in mind, this was a Forensic MH exam.

Is there the slightest possibility, that during your C & P exam, you mentioned something that pertained to your Pre Service. As I recall, there were numerous questions regarding pre & post service, school, family, social life and trouble with the law. How you answered these or similar questions could be problematic.

You need to see that MH DBQ.

Semper Fi

[Buck52]

If they delved back into your childhood  and found medical records that deemed you had  mental health problems back then they may base there opine on that?

however you need to get your deposition records or your entry record exam and  look and see what they said in those ? if mental health was listed as prior to your service but you were clear for your entry exam into the military   they need to start from there. to opt there medical opinion. and use your military records to make a decision.or opt their opinion

JMO

.................Buck

[broncovet]

No.  Aggravation is covered by 38 CFR 3.310: 

3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

(a) General. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.

(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will 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 created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.

You need to do a few things:

1.  Get your cfile, especially your entrance and exit physicals.  Compare them.  Was it true the documents said you had this entering service?    If this is true, that it is documented you had this before service, then, yes, you need to go the aggravation route.

2.  If its not true, however, and your issue was not documented prior to service in your entrance physical, then you need to attack the exam.  Read the C and P exam.  Did it say he reviewed your records?  (It needs to say this, if he did not review your records, then how can his opinion possibly be valid).  Next check the credentials of the examiner.  Was he an MD?  Did he have medcial training or experience in your field?   If not, you should attack the credentials of the examiner, in your appeal, and ask the invadequate exam be thrown out or  repeated by a competent examiner.   I think your C and P exam is inadequate, at a mimimum, because/unless the examiner stated the degree of aggravation.  In other words, if you exhibited mild symptoms prior to service, and these increased after service, he should so state.  

3.   If there are errors of fact, in your exam (the doctor made incorrect statements) then you should/could seek to correct those errors, as it 3.179:

§ 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.