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Veterans Law

DBQ Changes and C&P Exams Amid COVID-19

April 16, 2020

Is the Department of Veterans Affairs (VA) and the Court of Appeals for Veterans Claims (CAVC) Still Functioning Amid COVID-19?

 The Department of Veterans Affairs (VA), both at the Regional Offices and at the Board of Veterans’ Appeals, is still fully functioning.  Specifically, VA continues to process claims, issue decisions, issue payments, and more.  The department has managed to go remote with much of its workforce.  Although the Regional Offices are closed to visitors, the employees are still working full-time.  Therefore, if you have evidence or information for your claim, you can either mail it, fax it, or use VA’s online systems to submit it in support of your claims and appeals.

In addition, the Court of Appeals for Veterans Claims (CAVC) remains fully functional.  This is really important for veterans who have cases pending at the CAVC and are awaiting adjudication.

What Are VA’s Current Challenges with Veterans’ Claims?

 One of the biggest challenges for VA right now is getting medical evidence.  In almost every claim, medical evidence is a critical part of the case.  Historically, VA has conducted in-person Compensation & Pension examinations (C&P exams) to determine the level of disability a veteran is entitled to or provide a medical nexus opinion.  However, the process of C&P exams is changing amidst the coronavirus pandemic.

 VA C&P Exam Changes Amid Coronavirus

 The in-person C&P exams have been discontinued as of April 2, 2020.  However, it is probably more accurate to say that C&P exams have been suspended as it is likely that VA will go back to conducting in-person exams in the future.  There are two other types of exams that veterans should be aware of:

  • Acceptable Clinical Evidence (ACE) Exams. ACE exams are also referred to as records review examinations.  Here, the examiner determines that there is enough information without having to see the veteran in person.  If they have further questions, they may just follow up by phone with the veteran.  Importantly, this type of examination is still occurring.
  • Virtual or Tele-C&P Exam. VA has been talking about rolling out tele-C&P exams for the past few weeks.  They are now moving forward with implementation.  It is important to note that virtual C&P exams are not suitable for all conditions.  As such, VA is not conducting them across the board.  Instead, it has determined that some conditions are more suitable for these tele-C&P exams.  So far, they are most commonly used for mental health conditions.  Essentially, tele-C&P exams allow veterans to stay home and speak with examiners via computer and have a teleconference with that provider.  Examiners will ask veterans the same questions that are typically asked throughout the course of C&P exams.

Potential Impact of Virtual C&P Exams on Veterans’ VA Disability Claims

Unfortunately, there is still not a ton of information regarding how the changes to telehealth, or tele-C&P exams, will impact veterans’ VA disability claims.  As mentioned above, in some cases VA examiners may determine that they can review the veteran’s medical records without having to see the veteran in person.  Here, the examiner will move forward and produce findings as expected.  However, in terms of veterans who need to have examinations in person, there is still a lot up in the air.  As of now, it is expected that these examinations will be suspended until VA resumes in-person operations.  Perhaps VA will come up with something in the meantime, but as of now there is no further discussion surrounding this issue.

VA’s Permanent Changes to Disability Benefits Questionnaires (DBQs)

What Are VA DBQs?

Generally speaking, Disability Benefits Questionnaires (DBQs) were set up as a way for VA to capture the appropriate medical information to rate a veteran’s service-connected disability.  The questionnaires were designed and modeled to match the rating codes, which is how VA rates all veterans’ disabilities.  For many years, VA has made DBQ forms publicly available.  This means that a veteran could go to the doctor, either their VA treating doctor or their own private physician and have them fill out the DBQ forms.  From there, veterans could submit the DBQ forms as medical evidence to support their disability claim or appeal.  Importantly, this was a very powerful tool for veterans.  Recently, VA has made significant changes to the function and role of DBQs in veterans’ disability claims.

VA Has Abruptly Rescinded Publicly Available DBQs for Veterans

Unfortunately, VA abruptly removed all of the public-facing versions of the DBQ form so that the average person can no longer just download one of those forms and go to their private practitioner.  The VA C&P examiners will still be utilizing them and still have access to them.  However, veterans and their own private practitioners no longer will.

What Was VA’s Stated Purpose for Publicly Available DBQs Initially?

According to VA, the goal behind DBQs was to allow access to the process for veterans and their family members.  They could complete the exam with their own health care providers who were familiar with their conditions, their medical history, and who knew the nuances of their conditions.  Furthermore, veterans’ private health care providers are typically not considering the severity of their conditions based on only one appointment or one point in time, as they have been the veterans’ treating provider over a period of time and have a more comprehensive understanding of the veterans’ conditions.  In addition, it allowed for medical providers to gain access to the information that they needed in order to evaluate a veteran’s claims and conditions.

The DBQs were also noted by VA to be part of its transformation plan.  The transformation plan involved eliminating the disability claims backlog, increasing access to services and benefits, and ending veteran homelessness.  In making the DBQs publicly available, VA aimed to increase efficiency while further engaging veterans, service members, survivors, and their families.  Considering VA’s strong push for publicly available DBQs, it is certainly surprising that it would now revoke access to these forms to the public.

Prior to these changes, there were over 70 DBQs available online for various conditions, including rare conditions that would likely require a specialist to adequately assess the condition and complete exam.  Now, it may be harder for veterans to get an exam for these rare conditions at VA.

How Will These Changes Affect the VA Disability Claims and Appeals Process for Veterans?

Overall, VA is taking drastic action with the removal of publicly available DBQs at a point in time when both veterans and the greater public are already in the midst of crisis.  Theoretically, veterans could still mail these DBQs to their doctors, have the doctors complete them, and then submit them to VA.  There seems to be no grounds for removal of the DBQ forms and doing so limits transparency and control for veterans.

These Changes Could Limit Veterans’ Options to Submit New Evidence for VA Claims

Furthermore, under the new Appeals Modernization Act, VA requires the submission of new and relevant evidence with supplemental claims.  DBQs are often important for establishing new and relevant evidence (e.g., what the condition is, the level of severity of the condition, the possible etiology or cause of the condition).  However, VA is now making it harder for veterans to actually get that evidence that they need to support their claims.

What Are VA’s Stated Reasons for Discontinuing Public DBQs?

VA recently released a statement containing many reasons as to why they are eliminating DBQs (see below).

VA is Updating the Rating Schedule

First, VA stated that the Veterans Benefits Administration is currently more than half-way through the process of updating all body systems in the VA’s Schedule for Rating Disabilities.  As each body system is updated, so are the corresponding DBQs.  According to VA, for DBQs that are available publicly, the department must engage in the formal process required any time a public-facing form is modified, which can take more than a year.  This is correct; however, VA is going to give these DBQs to their own doctors and the private contractors that work with the department.  Therefore, the only individuals who do not get to use the updated DBQs are the veterans themselves.

VA Says it is Safeguarding Against Fraud by Discontinuing Public DBQs

VA also says the removal of DBQs is a safeguard against fraud.  In the past few years, VA has seen a growing industry of individuals and companies marketing the service of completing DBQs for veterans.  While some have provided honest, valuable service to veterans, others have engaged in questionable, even fraudulent, practices that include charging high prices for completing DBQs or submitting DBQs with findings that are vastly different than the other evidence in the veteran’s claims folder.  Ultimately, there are some bad actors out there and that is always the case in any system.  Nonetheless, that should not be a reason for taking DBQs away from everyone.

VA will ultimately make the decision as to what weight it is going to give to any piece of evidence, including medical evidence.  As such, it seems shameful to take this beneficial resource away from everybody because of a few bad actors in the process.

DBQs Were Being Completed Remotely – VA Says These Must Be Completed In-Person

Finally, VA stated that DBQs were being completed for veterans remotely.  VA says these exams must occur in person rather than online.  However, there is some irony to that statement given what is happening right now.  Specifically, VA is transitioning to telehealth (i.e., completely online) in order to continue with the delivery of care to veterans.  It seems as though VA is invoking a double standard – one that only serves to benefit the department itself, and note the veterans it was created to serve.

Importantly, there is nothing in the law that governs veterans’ benefits, either by statute or regulation, that says these examinations must occur in person.  There may be situations where a certain piece of medical evidence should be weighted more heavily depending on how it was it was obtained, yet that is not what VA is saying.  What VA is really doing here is responding to an Office of Inspector General (OIG) report where the program was given poor marks by the OIG’s inspectors.  VA’s removal of DBQs can be seen as an overreaction to this report.  After receiving feedback, the department decided to shut down a number of these excellent provisions of the DBQs.

Is There Any Legal Recourse to VA’s Recent Changes?

With the sudden removal of publicly available DBQs, many veterans are wondering if there is any legal recourse out there.  For example, can someone bring an action against VA to stop this and make the department bring the DBQs back?  As of now, there are some veterans organizations that are certainly investigating.  However, there is no definitive answer to that at this time.

What Impact Will Veterans See Due to VA’s Discontinuance of Public DBQs? These Changes Only Benefit VA.

 CCK has commented on this matter, stating that if VA is not going to put these DBQs back and make them publicly available, it is going to be more difficult for veterans to get their doctors to complete reports that will meet the criteria necessary for VA to adjudicate (i.e., make decisions) on claims.  Ultimately, that is neither a good thing for VA nor veterans.  It is especially a bad thing given what is happening right now with the COVID-19 pandemic.

Overall, the changes that have been implemented by VA are designed for the convenience of VA, not for the convenience of veterans.  This will make it easier for the Veterans Benefits Administration to administer the program, at least according to them.  They will not have to deal with evidence that is coming directly from veterans.  Again, it is designed to make things easier for VA itself, but not to improve the process or improve the outcomes for veterans.