Modernization Hub

Modernization and Improvement
How to Challenge a VA Exam (C&P Exam)

How to Challenge a VA Exam (C&P Exam)


Welcome to our Facebook Live
presentation today. CCK talks about challenging a VA examination. We’re going
to get into that but we have an exciting announcement to make.
We are coming to you from our new location. It is still in Providence Rhode
Island we moved across the river. We are now at 321 South Main Street
Providence, Rhode Island 02903 We’re the same CCK, just in a
different location, ready to come to work and serve our nation’s veterans. Our
nationwide practice continues. We just wanted you to know that,
while we have a new physical space, we’ll still be doing the same quality work
that we have always done. We have the same phone number. This will affect
nothing. Hopefully, it’ll just make us a little step better for everybody else.
But today we’re talking about challenging a VA exam. Joining me today –
I’m Zach Stolz, if I didn’t say that yet. Right here is Alyse Galoski. and that’s
Christian McTarnaghan. They are attorneys here. The three of us primarily work on
Court appeals, but our entire firm, as people who watch us regularly know,
represent veterans at every step of the way – from the regional office of the
Board of Veterans Appeals to the Court to the Federal Circuit all the way to
the Supreme Court, if you need us to. So, today we’re going to talk a little bit
about all of those levels – probably not the Supreme Court – but about challenging
VA examinations: If and when that is necessary; how you go about doing it.
We’re gonna try to be a little bit quick and hit the broad strokes. If you want
more information, please visit us at cck-law.com. There’s much more information
about this topic – in this topic – believe it or not – it could be discussed probably
for two or three days. Today, we’re gonna do in about 10 minutes. So, bear with us
as we go through the high points of challenging a VA examination. First
question is going to be for Alyse Galoski, right here. What is a VA exam
and when do they happen in the VA appeals process? Sure. So, a VA examination
is basically an evaluation – or an examination – ordered by the VA.
Sometimes you can see it referred to as a Compensation & Pension Exam. Sometimes it’s referred to as a Disability Benefits Questionnaire (DBQ) But really the
distinguishing factor is the fact that it’s something that the VA ordered for
you. And it can happen any at any point in
the appeal. It can happen before you’re service connected or after. And one of the
things to remember about when a veteran walks into the Department of Veterans
Affairs and files a claim for compensation, VA has what is called the duty to assist
veterans and, as part of its duty to assist, it is, in many cases, obligated to
go out and get an examination for a veteran. And sometimes it’s many
examinations and it could be specific examinations for for psychiatric
conditions or for orthopedic conditions or anything like that. We’re going to get
into that a little bit, but that’s a little bit of a background of why this
thing even exists. And so what happens at a VA exam – let’s call it a C&P examination –
stands for Compensation and Pension [Alyse: mm-hmm] It is short-handed to VA C&P
examination. And sometimes when you’re with a busy VA person or a busy rep,
they’re not going to slow down and tell you it’s Compensation and Pension, but
that is what C and P stands for. So, what happens during that exam, Alyse? So yeah, it’s gonna depend
on what the purpose of the examination is. And you’ll know that
based on why the VA ordered an examination for you. For example, if you
are trying to establish service connection, the purpose of your
examination will likely be to look for a nexus – that is what’s gonna connect your
disability currently with what happened to you in service. Some things that they
might be asking to establish a nexus is, How long you’ve had a certain disability;
when you first noticed it; if you ever had any symptoms in service; if you have
any other symptoms that might be contributing to the disability; if you
have a family history. Basically, they’re trying to figure out what is causing the
disability you have now and see if they can link it to your service.
Another type of an examination might be an examination that you have when you’re
looking for an increased rating. In that instance, they’re actually going to be
looking at the severity of your disability. So, they’ll be asking you how
your symptoms affect your day to day – that’s really the biggest part.
They’re gonna be looking at how severe your symptoms are, rather than
necessarily whether they’re related to service, because usually by that point
it’s already been established. But sometimes you might have an examination
that does both. So, the long answer– the short answer is that
depends on the examination. But yeah, they’ll ask several questions and, as many people know, the idea behind a
Compensation and Pension Exam and the entire compensation–kind of adjudicatory–
process or decision-making process, we’re trying to find that someone has a
current disability; that it is related to their time and service; and then they
need to figure out–as Alyse was saying– how severe it is so that it can be
related to the diagnostic code to to get compensation for however severe the
condition is and whatever problems it may cause it’s someone’s occupation. So
Christian, let’s turn it over to you for a little bit. What are the differences
between a physical condition examination and a mental examination? Yeah, so yeah,
absolutely. So, they’re actually very different. So.
let’s assume for purposes of this answer that you’re already service-connected
for the condition. So if you’re going… Probably the two most common types of
examinations we see for physical–or the most common for physical–is some sort of
orthopedic examination. I like to use the knee as an example. I’ve had a lot of cases
that involve the knee, which makes perfect sense, a lot of wear and tear in
the service. A lot of knee injuries in the service. So let’s say they’re trying
to–VA is trying–to see how severe a knee disability is. There are sort of a couple
of broad-stroke things that are that are gonna happen that examination. Most
importantly is range of motion testing findings. VA uses this thing I think it’s
called a goniometer. It basically is a protractor that they move next to your
knee to see how far you can literally move it. So that’s going to be one large
part of that examination. And that’s really important because–like you were
talking about Zack–what VA is gonna use these examinations for, is to try to give
you the appropriate disability rating. And the diagnostic codes for your knee
are based on loss of range of motion or –the other main part of the examination–or
functional loss that you have Functional loss is things like problems
with standing, walking. So, they’re gonna ask you: How long can you walk;
how long can you stand without sitting; how painful is it; does it get more
painful at times. So that’s sort of gonna be your basic run-of-the-mill
orthopedics. You can just take that they’ll do it similar for the elbow, for
the neck, for the back. They’re all basically going to have similar broad
strokes. So, mental health–or a psychological examination–is going to be
very different. So, a lot of that’s gonna have– There’s going to be no sort of
testing on how far you could move or how far you can walk, that’s really going to
have a lot to do with what you alluded to before, Alyse–How does your
psychological condition affect your everyday life? How does it affect your
relationships? How does it affect your ability to work? How long have the
symptoms happened? And so, in a lot of these examinations there’s going to be a
lot of checkboxes. You know, are you feeling depressed? Do you have memory
loss? Things like that. And I know that will probably get a little bit of this–
and we have full talks about this on our website–but being honest and open with
your examiner is probably one of the most important things to have in the
back of your mind when you’re going to one of these C&P examinations. And then,
how much weight– So, we’ve talked about kind of going through these hit
the high points of what happens during these. So, now what? An adjudicator gets it,
somebody at the Regional Office or at the Board, how much weight are they gonna
give this? So, in my practice, VA tends to give a lot of weight to the C&P
examinations. But they’re supposed to take a look and make sure that it all
looks good–for lack of a– without getting too much into it. Does it make
sense? Is there enough information there for them to rate it? Does the
information, sort of, not contradict. So, they’re supposed to look to see whether
they should be giving it a lot of weight. They tend to give it a lot of weight. But
they also–and we have a lot of talks about this on our website as well–they
also should look to all, sort of, the evidence that goes to your rating. So I
talked about functional loss, the exams gonna be really important, but some of
the other evidence in the record that maybe the veteran writes in a lay
statement or that another medical provider gives about how
long they could walk, how it affects their knee, things like that, should also
be relevant. So, we talked about how these are important. And, at CCK, we also help in
developing evidence and veterans are entitled to go to their own doctors and
get opinions and these can be weighed with and against some VA examinations.
And so it’s not just that the examinations are the only piece of
evidence that the VA is going to look at, but they are important pieces of evidence [Christian: Yup. Absolutely.] And so, because of the importance of this, veterans might
want to get a copy of their exam. They’re entitled to that right Alyse? [Alyse: Mmhmm, they are.] And how would they go about doing that? Yup. And we would encourage you to do so.
If you are represented, you can have your representative help you. If you’re not,
you can actually reach right out to your Regional Office and they will give you a
copy. You are entitled to a copy of that. And, what about examiner’s qualifications?
There is a case called Nohr. It came out from the Court of Appeals for Veterans
Claims. It was actually argued by Robert Chisholm of Chisholm Chisholm and
Kilpatrick. And so it’s important, obviously, to get the exam, but you do
want to make sure that your examiners are qualified. Can you talk a little bit
about that? We’re able to challenge those qualifications? Or at least get or at
least get them so that we know what we’re dealing with with these examiners. Yeah, and I think one thing that’s important to know is that– examiners,
they’re presumed competent, but once you actually challenged their
competency–a new case came out called Francway–all you have to do is actually
assert– make an assertion against their competency and that is going to go ahead
and put the ball back in VA’s court. VA is then going to have to explain why
they found that examiner competent. You’re also entitled to a copy of the
examiner’s background. So, you’re entitled to a copy of their
resume or other information about their qualifications. That’s also in the Francway case. So that these are things that you are entitled to per the Federal
Circuit. So, you know, challenging and examiner’s competency is absolutely
something that you can do, if necessary. It’s sometimes not always the
easiest thing to do, but it’s an option. And how do you look, Christian, to see–
How can you tell– It’s something that we deal with, kind of, day to day, so we know
what an unfavorable exam–we call them unfavorable–it just means that the
examination does not establish one of those three things we talked about
earlier. You know, maybe an examiner says, “No, this isn’t related to the person’s
time of service.” Maybe the examiner says, “It’s not as severe as the veteran
believes it to be.” [Yeah.] Maybe the examiner says that you don’t even have
that condition and it can’t be service-connected. So, those are some
examples. What do you, kind of, look to to see if it’s unfavorable, something that
we can work with to help the veteran get what he or she is looking for, and what
kind of constitutes an unfavorable ones? Yeah so, in the case of service connection,
an unfavorable medical opinion would be one that says your current disability is
not related to service. So that would be what an unfavorable decision in the
service connection context would look like. In terms of of a rating, an
unfavorable decision would–and I think you sort of started to talk about this–
would show that your condition isn’t quite as severe as as you might
otherwise think. And, one thing that I love to see in my practice is sort of
the veteran can be their advocate in helping to understand whether
the examination is as full and complete as it’s supposed to be. Because
that’s another thing, you know– If the veteran has severe problems with their knee–
knee is just an easy example– there’s no particular reason why I’m
using this other than it’s just easy to keep coming back to–
If the examination says you don’t have flare-ups, right, but you do have
flare-ups. And then, the examination says that you have a certain level of
functional ability, but it’s actually lower than that. That would be an
unfavorable exam because it’s not truly reflecting how severe your disability is.
And, like we’ve mentioned before, what a rater is going to do–because that’s
what they’re they’re trained to do–what they’re supposed to do–they’re going to
look at the exam and they’re gonna give you a rating based on what the exam says.
So if it if it doesn’t show your level of severity, or there’s something wrong
with the explanation about why you shouldn’t be
service-connected for something, those are going to be unfavorable exams. Those
are gonna be bad exams. And then Alyse talked a little bit about how to
challenge some of those and how to make sure that VA complies with its duty to
assist. And that is something that we at CCK do every day at the Regional Offices,
at the Board, at the Courts. And it is certainly something that our friends at
DAV do or other veterans’ service organizations or whoever is representing
you, this is something that you do need to be informed about and do need to work
with your representatives. I’m making sure that the medical evidence is saying
what it needs to say and gives an accurate picture, a truthful accurate
picture, of what you are going through. So with that, any final thoughts? We’ll
start with Christian and work our way to Alyse. Yeah, in terms of taking the
concept of challenging examiner competency, they’re not automatically
going to give you your– one thing I wanted– they’re not automatically gonna
give you your exam. You really have to ask for it. So let’s make sure that if
you want to see your exam, you’re asking for it quickly. And then, don’t don’t be
afraid to write a letter to VA explaining how that exam might not
exactly have everything that it needs in it or–you know, you can do this to be
represented, as well–or there’s some sort of problem with the examination. I just
keep in mind that this is sort of– It’s important, but it’s not completely gonna
tank your case if it doesn’t have everything it needs to have in it. Alyse. Attend your C&P exams. [There ya go!
That’s where we should have started.] So, VA does have a duty to assist you, but
once you don’t show up to your exam it is very difficult to say that they
haven’t met that burden, to the extent where it you– you are really– you’re not
doing yourself any favors if you don’t attend your exams. So even if you if
you’re feeling hesitant, if you don’t feel like they’re gonna give you a fair
shot, you have to go because if you don’t go, then you’re gonna be out of remedies. That’s a good point. That’s a good thing to close it on. [Absolutely.] From CCK, and
please visit us at CCK-law.com for more information about today’s talk
and– or one of our many many other talks on VA
disability benefits and other legal subjects. I’m Zach Stolz. Alyse Galoski. Christian McTarnaghan. Thank you very much. Have a good day. Thank you.

6 comments on “How to Challenge a VA Exam (C&P Exam)

  1. I had two VA C&P exams within the last two years. The VA nurse and VA physician assistant examiners completely ignored the detailed nerve studies and DBQ exams performed by private neurologists proving severe nerve damage, neuritis, neuralgia, paralysis, trophic changes, and loss of use of right foot. In essence, the two VA examiners were allowed to override medical evidence plus four private neurologists. The fox guarding the hen house. CCK is now representing me and we are appealing.

  2. Was given a non-C and P; which the "Clinician" told me he was ordered to not meet with me. This came out in the Court proceedings in D.C. (CAVC) We prevailed at Court and got a Jt. Remand. Back at BVA now, waiting for VLJ to decide on my docketed Appeal.

  3. The VA uses biased doctors that do unfavorable C&P exams. Do you have unbiased doctors that will do adequate DBQs, Independent Medical Examinations, Independent Medical Opinions, or Nexus Statements? Medical evidence carries greater weight than the veteran's own lay statements.

  4. SIR IM A DAV IN A WHEELCHAIR AND CANT WALK N I SUFFER FROM CHRONIC PAIN I HAD A C N P HEARINGS AN THE VA IS SCREWING ME CAN SOME ONE HELP THIS OLD DAV VETERAN GETJUSTICE BEFORE I DIE CALL ME PLEASE ASAP
    330 409 5790
    RICHARD HUDAK

Leave a Reply

Your email address will not be published. Required fields are marked *