Gulf war connection versus service connection

[SsgtForLife]

I have been following the group for a while. My claim is currently sitting in “Pending Decision Approval”. My question is in regards to my C&P exam. In the notes section of the C&P under GW, the doctor states, “...is less likely than not”. However, directly below that under medical opinion, he states “...is at least as likely as not occurred in service”. 

Why would he have this distinction? All of my claims were for Gulf War syndrome. The C&P looks favorable for service connection, but not Gulf war. Am I missing something? Are there any thoughts on why he separated these items? 

[SgtStelmo]

Wow, let me try to tackle this one.  As far as I know Service Connection is Service Connection is Service Connection.  That being said, their are certain conditions that are presumed to be automatically Service Connected if you served in the Gulf War.  As such, you do not need to provide the nexus to your condition like Veterans who did not serve in the Gulf War would have to.  If I am wrong on this someone please let me know.

Now let us talk about the doctor.  Although you do not directly state so, it is almost obvious this doctor is a VA doctor.  Doctor's out in the private world do not use the phraseology "less likely than not".  Both phrases you reference are synonymous, which means they say the same thing.  And I might point out, this is not a good thing.  (The second quote arguably is grammatically awkward, but do not think for a minute the VA will use that in your favor.)

For their to be a nexus between your condition and your military service the phrase must read, "more likely than not".  I have a recommendation for you, make an appointment with a non VA doctor.  It is preferable this doctor is one you have previously seen.  Before your appointment prepare a statement in support of your claim for this doctor to sign.  Prepare it similar to what the VA doctor opined with the exception that it is "more likely than not".  And if you are really energetic, you can refer to the VA Disability Ratings Schedule and use the terminology the VA is looking for with each condition.

That creates a conflict, and as a matter of law, a difference must be settled in favor of the veteran.  Yes it will cost money for the doctor, but that is a mere pittance to what you stand to lose if your claim is denied.  And yes, even with the difference the VA might rule against you. but if the BVA does not correct that error. the CAVC will.

Well I hope this is somewhat helpful.  And if I am wrong on the Gulf War Syndrome I hope someone let's us both know.

[vetquest]

It looks like you never got a reply....

I cannot answer why he separated these items.  We need to wait for the BBE (big brown envelope) which looks like it may be coming.

Please keep us apprised.

[broncovet]

While its true that, in theory, the VA gives the benefit of the doubt to the Veteran, in reality this only happens "some" of the time.  As Vet quest posted, I agree you will need to wait for the envelope, and appeal if necessary.  

For example the VA can choose one doctors opinion over another, but they must give a reason they did so.  Possible reasons are that Doc A did a more thorough exam, Doc B read the entire record, etc.  In this instance, the VA can choose the negative opinion over the more positive one, as long as they cited a reason for doing so.  

[Buck52]

It means he don't think this occurred in the GW...

You need to wait for the decision as   Vetquest & broncovet mention.

but it all depends what all this Dr mention in his report  some times the raters will read into what the  Examiner said as just being the wrong phrase and (hopefully thinking this Dr was just messed up in his/her phrase .

  if all your  evidence turns to the GW and records ect,,,ect,,,I think you may be granted.

if your evidence points to this being GW related you should be granted award...but it will be fairly easy to Appeal  but it starts your hamster wheel rolling need-less-lee

let us know how it goes./

  there's a lot of good people on here that can help you.

[SsgtForLife]

So far they have granted one item for Gulf War Syndrome, which was IBS. This was rated at 30%. They also have awarded bilateral knee pain at 10% each. I was diagnosed with Asthma and that item has been deferred, along with Genitourinary condition. 

I went in for a second C&P yesterday for both conditions that were deferred. The original C&P exam had both under Medical Opinion as “At least as likely”. Both were under Gulf War as “is less than likely”.

we will see what is written up this time. 

Thanks to everyone for your replies. 

[SgtStelmo]

"38 CFR § 3.102 Reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant."

I have provided this regulation because of it's pertinence.  And yes, I know the VA can ignore this regulation, like they ignore countless other regulations, laws and the United States Constitution.  But if one is going to fight for their lawful benefits, they should fight to have the strongest possible case.

That being said, most VA doctor's (Note I did not say 'all') are not the Veteran's friend in issues concerning disability.  And so I assert it is always in the Veteran's best interest to create "doubt". Id.  

Assuming this doctor's report is construed as opining there is no nexus between his active duty record and his claimed disability, what argument does he have to appeal if he does not have an opposite declaration from his private doctor?