- What is a Compensation & Pension Examination?
- Can VA deny a claim without ordering a C&P Exam?
- Do separate conditions require separate exams?
- Who conducts C&P exams?
- What qualifications do VA examiners have?
- The Importance of C&P Exams
- Do’s & Don’ts at your C&P Exam
- What do C&P Examiners know about your case before the exam?
- The Importance of Showing Up
- Consistency: Everything can be recorded
- Understand the context of the exam
- Prepare for your C&P exam: Make a list
- How to get a copy of your C&P Exam results
- How to respond to an unfavorable VA exam
- How to get supplemental evidence if you receive an unfavorable C&P exam
- Necessary Qualifications of the C&P Examiner
- Disability Benefits Questionnaires (DBQs)
- Vocational Experts
- Honesty & Credibility at the VA exam
Christian: Good afternoon and welcome to another edition of Facebook live at Chisholm Chisholm and Kilpatrick. My name is Christian McTarnaghan, I’m an attorney here at the firm. Today, joining me to talk about C&P examinations, is Jenna Zellmer who is also an attorney and Michael Lostritto who is another attorney at the firm. So, I think we’re just going to jump right in. First question, what is a C&P exam, what do I mean when I’m saying that?
Jenna: Yeah, Christian, C&P stands for Compensation and Pension Examination and it’s the exam the VA will order when it’s deciding a veteran’s claim for service connection or for an increased rating for your disability.
Christian: So, is there any problem that a veteran should be aware of if the VA deny a claim without getting a medical examination at all?
Jenna: Not necessarily, VA is allowed to deny a claim without getting an exam. Generally, for a service connection claim, we say it’s a really low threshold for getting an exam, but in certain circumstances, VA doesn’t have to give an exam. Usually, if you are trying to get a service connection claim, the VA is going to need to get an exam to determine what the cause of your condition is and to determine whether or not it’s related to service. And so, in order to get an exam in that scenario, there has to be at least some evidence that indicates your disability is related to service somehow. If there’s no evidence that your disability is not related to service, VA can deny your claim without getting you an exam. But, for the most part, I would say 90% of cases, VA is going to get an exam either to determine whether or not your disability is related to service so that they can grant service connection, or whether to determine if your already service-connected disability warrants a higher rating.
Christian: It’s gotten worse. So, let’s say a veteran has filed for service connection for a left knee condition and a psychological condition, would they get two separate exams for those two separate disabilities?
Jenna: Yes, so they’re going to get two separate exams because the medical question is a little bit different based on whatever disability you have. And so, for the knee disability, they would probably get some sort of orthopedic doctor. It doesn’t necessarily have to be a doctor. It could be a nurse practitioner or a physician’s assistant. That physician, that medical professional will be focused on orthopedic condition, whereas if there’s a psychiatric disability then they’re going to get a psychiatric professional.
Christian: So, you just sort of alluded to this, the exams can be conducted by a medical doctor or sort of some other sufficiently qualified person, right?
Jenna: Right, and usually they’re VA medical professionals, but every once in a while, VA will also contract out with a third-party professional. So, sometimes it’s a private examiner who’s not affiliated with VA, but just has a contract with VA
Christian: Okay, would those exams be any different than a VA conducted exam.
Jenna: No, so there is something called disability benefits questionnaires, but for the most part the exams, regardless of whether or not they’re conducted by VA or a by a third-party contractor, they’re supposed to be answering the same questions, the forms that they’re on might be a little bit different. A DBQ is a Disability Benefits Questionnaire, it’s mostly just a form that a professional can fill out, check boxes, provide some sort of narrative, but the contents of the exam should be the same regardless.
Christian: So, if a veteran has filed a service connection claim and VA decides to get them an examination. How important is that examination?
Jenna: It’s really important. So, in most cases we’re dealing with pretty complex medical issues, and so VA is going to require some sort of medical evidence in order to properly adjudicate the veteran’s claim and hopefully grant a service connection or grant a higher rating, and so, it’s really important that veterans go to their exams.
Christian: It’s incredibly important. So, that was just a little byway of background and now we’re going to move into a discussion of some of the do’s and don’ts of VA examination. I’m going to start with Mike. What’s something that you would recommend a veteran do in relationship to C&P exam?
Michael: Sure, one of the most important things for veterans to do, when they relay their symptoms to the C&P examiner it’s to just be honest. You know, there is a record, medical records from the past that the adjudicator will take a look at in addition to the result of the C&P exam. So, it’s very important that whatever you state doesn’t conflict with something maybe that has been recorded in the past. So, you know, it’s extremely important for the veteran to be honest and that means not downplaying the symptoms as well. If a veteran’s condition truly has worsened, he or she should state that and make sure that it’s recorded properly for VA to know. If things that the veteran knows has happened previously in the file, they feel free to reiterate those things. But like I said before, it’s really important that they don’t conflict, maybe something that they said in the past with something that they are saying now, provided of course that the situation hasn’t changed.
Christian: Sure, or there’s not some sort of explanation for that, right? When I’m looking at my client’s files, I notice something changes, I’m really hoping that there’s a reason why that I could use to try and help explain why it’s not inconsistent.
Christian: Because I think that’s what you’re getting at, VA will look for any inconsistencies in the veteran’s story to do a number of things and sometimes deny the claim.
Michael: Absolutely. Like I said, be expressive and if your condition truly has worsened, it’s perfectly acceptable to say that, in fact, would help your case if you are to relay that information to the C&P examiners so they can record it properly.
Christian: So, what should the C&P examiners know? Should a veteran go into the room assuming that the examiner knows everything about their case?
Michael: Absolutely not. This is really not an opportunity to ask about the status of your case. The C&P examiner, I’m sure has a lot of examinations that they do on a daily basis. They don’t really have any unique knowledge about any specific veteran’s case. In all likelihood, they haven’t reviewed anything in the file, which is another reason why it’s important for veterans to go in and be expressive, say what’s going on and make sure that the C&P examiner is recording things that they’re saying, because if it’s not recorded, it’s tough to prove that it actually ever happened during that examination.
Christian: Absolutely. So, one thing that we also want to highlight is it’s really important to attend these examinations right?
Michael: Oh, absolutely. In our practice here, we’ve unfortunately seen VA deny, whether it be service connection or a claim for an increased rating, solely based on the fact that the veteran did not attend their most recently scheduled C&P examination. It’s really critical that, even if the veteran’s afraid of what the result may be, that they attend the exam because VA will oftentimes view a veteran that has missed the exam or refused to go to an exam as low hanging fruit and kind of just a quick way to, you know, deny the claim and move on to the next client.
Christian: In some instances that would be a completely legal result.
Christian: VA has the right to deny service connection claims and things like that, or increase rating claims if the veteran fails to attend the examination. So, one point I want to make before we move on to some of the thoughts that Jenna has is, this isn’t your treating doctor. They’re there to evaluate whether your condition was caused by service or how severe it is at that point in time. So, a common thing that I see in some of my cases is, especially in the psychological evaluation context, “So, how are you doing today Mr. X?” “Oh, I’m doing well.” Common pleasantry, first thing recorded in the examination, veteran states he’s doing well. So, you know, obviously, be cordial, be polite, but just know everything you say in there is going to to be recorded in that examination.
Michael: Yeah, that’s a great point because it’s oftentimes hard to put things into context. A few years down the road, if you need to review the exam, when you may have been saying something not even thinking that’s the way it’s going to be written down or intended for it to be put down.
Christian: “I had a fantastic day at my niece’s birthday party,” right? Just opening up the conversation but, then you have that as an advocate, 5,10,15 years later, and you don’t understand that that was just common pleasantries. It’s hard to see that from the file itself.
Michael: And, it’s 100% accurate, and VA really puts a lot of weight on their own exams, and so, despite the fact the veteran can provide outside medical opinions or outside medical evidence, VA really holds the exams that they provide kind of in high esteem if you will. So, it’s very important that you attend them and that you know, you think carefully how you say things and what you say and how you express your symptoms when you attend an exam.
Jenna: And, I think an overarching theme that we’ve kinda touched on, is the fact that VA has this duty to assist a veteran and substantiating his or, her claim. That’s why VA is getting these examinations. But, you know, as part of that duty, what VA will often say is that duty is not a one-way street, and what that means is that you know, if a veteran is afforded an opportunity to go to an examination and they don’t attend, that’s what VA is going to use. They’re going to say, “Well, we completed our part of the duty to assist.” The veterans still have their own obligations to meet us halfway and actually come to the exam and provide information about their claim. And so, that kind of all goes back. Even though it’s VA’s duty, the best thing you can do as a veteran is to make VA’s job as easy as possible.
Christian: Absolutely. Don’t give them a reason to deny the claim.
Jenna: Yeah, so, you know, that’s the duty to assist.
Christian: Well, just some other thoughts that you might have Jenna about things that veterans should be aware of.
Jenna: Yeah, so I think it’s really important to kind of understand the context of the exam is. We mentioned before is this an examination for an orthopedic condition? Is this an examination for PTSD or another psychiatric disability? And it’s also important to know are you claiming service connection or are you claiming an increased rating? Because the focus of the exams is going to be different in all those different contexts. You know, for example, if you’re trying to get a service connection of a left knee disability, you’re going to go to some medical professional who hopefully has some sort of orthopedic background. Hopefully is the key word there. I think we’re going to get to that in a little bit. But, you know, that examiner, because it’s a service connection claim, is going to be focused on what happened to you in service, what’s been going on since service, and trying to figure out what the cause of this left knee or right knee or whatever orthopedic condition it is. That’s going to be a little bit different than if you were going for an increased rating claim. Because, in an increase rating claim, the doctor isn’t really going to be concerned about what happened to you in service. If you want to get into that, the doctor is probably going to refocus you. A lot of times veterans are upset because they feel that the examiner isn’t listening to them or isn’t really concerned about their service history, but the real focus of the exam, in that case, is what the current condition is, not really what the past was about.
Christian: It’s not that they don’t care what happened to you in service, it’s that it’s not what your claim is about right then and there. You’re sort of wasting precious minutes that you have to sort of tell your story if you’re focused on something that’s not very good.
Jenna: Right, so it’s really important to kind of understand going into it. Figure out what condition this particular exam is for because a lot of times veterans have multiple different conditions and they might get them confused. They might think they’re going for one exam and they’re actually going for another.
Christian: Or some on the same day.
Jenna: Exactly, So, write down everything that you want the examiner to know about that particular condition, about why you think it’s related to service, why you think it’s worsened, why you think you are deserving of a higher rating, and make sure that the examiner has that in mind when they’re asking the questions. You can kind of hopefully try to direct the exam in the way that you want it to go. As the examinee, you can volunteer a lot of information that an examiner may not otherwise ask. And so, it’s really important to be prepared.
Christian: And so, we’ve been talking a lot about symptoms in this whole discussion. Is that the only thing that’s important in the context of let’s say an increase rating claim.
Jenna: No. Do you want to take it?
Michael: I was going to say it’s also important for the veteran to relay how the symptom impacts their daily work life, you know, just making their daily life in general. It’s really important to link, you know, “I have increased pain in my knee and therefore I’m unable to lift, I’m unable to walk”, those things. Taking that next step to show really how the disability impacts the daily aspects of life.
Jenna: Eventually, you stopped working because of your disability. That’s definitely really important to volunteer in the exam too
Christian: Or how it impacts work.
Jenna: Mm-hmm, yeah. Even if you didn’t stop working, but if it limits your ability to work certain types of jobs, you know, if you can only work a certain amount of days or hours in a day, things like that.
Michael: And just a practical tip, I think it’s perfectly acceptable for you to go in with a list of things of questions.
Christian: Oh yeah, absolutely
Jenna: Yes definitely
Michael: Things that you want to make sure that you say. A lot of complaints that we hear from veterans, they’re surprised at how quickly their exam goes and how they weren’t really able to convey everything that they wanted to convey. So, I would always recommend veterans go in with a list of things they want to hit specifically with the examiner and make sure that before the examiner leaves the room, you’ve covered everything that you want to. It’s your exam, make sure you cover everything you want to convey to the examiner.
Christian: What’s a way Jenna that you, as a veteran, or a veteran can make sure that what they’ve conveyed was actually put down on paper?
Jenna: Right, so veterans are entitled to a copy of the examination. So, after you go the exam you can write to your regional office and request a copy of the exam and you can read exactly what the examiner wrote and what VA is reading when they are deciding your claim. When you look at that exam, that’s when having that list that Mike suggested is really important because you can see, “Oh I told the examiner this, but the examiner didn’t write it down”, or “I told the examiner X and he actually wrote down Y.” You can compare the two and make sure that whatever the examiner is reporting to VA, which is what VA is going to use in deciding the claim and as Mike said, hold in really high esteem. You want to make sure that all that information is accurate.
Jenna: If it’s not accurate then the veteran can write to the regional office and dispute everything that the examiner said and say “This is what the examiner said, and this is why it’s wrong,” or “The examiner said I have flare ups once a month, I actually have them twice a month or once a week,” or something like that, you know, just to make sure that VA has all the information before it, before it makes its decision.
Christian: And as an advocate, when your case gets to court or when you’re making arguments at the agency, those sort of responses can be incredibly helpful to help correct the record or supplement the record or anything like that. I know when I work in our court practice also when I’m appealing a case to court and I’m trying to attack an examination, I’ve had some clients that have had some really detailed responses that have been the basis of the arguments that I’m going to make, and it’s also what’s most important for them which I think is really helpful to understand, sort of, what really affects this person day to day because of their service-connected disability
Michael: Yeah, that’s a great point and I think it’s important for veterans to respond to the exam as soon as they can, once they receive a copy of it. It’s fresh in your mind at that point and it also shows when you’re looking at a record that could be several years old, that the veteran responded within the first couple of weeks after the exam, pointing out that this is inaccurate. This is different. This wasn’t conveyed that way. So, I think just responding to those exams is always a good idea.
Christian: So, what are some other thoughts, Mike, that you have, some advice you have for our veteran watchers?
Michael: So, oftentimes veterans will receive a copy of their exam and unfortunately it will be unfavorable. And so, I think at that point they need to keep in mind that they can certainly submit a response as we were just speaking about. Either pointing out any inaccuracies or pointing out problems with the process, perhaps maybe the exam didn’t go into a lot of detail or support any of the conclusions that were included in the exam. But also, I think it’s important for veterans just to keep in mind that while VA does hold the C&P exam, the VA exam, or give it a lot of weight, it’s only one piece of evidence. And so, I think veterans should feel like they can and they should go out and obtain, you know, treatment records, maybe their private treatment records, a separate opinion that contradicts the findings of the C&P examination. So, I think if you get a decision, or rather, if you get an examination report and it’s unfavorable, it’s not the end of the world, but I think a veteran should look to supplementing the record with other evidence that is favorable.
Michael: And, trying to show this evidence does exist that contradicts what’s in the examination.
Christian: Because VA isn’t supposed to just be giving more credence or more weight to a VA examination simply because it was performed by a VA examiner.
Michael: Exactly, unfortunately, I think sometimes in practice they do, but absolutely, you’re a 100% right that they’re not supposed to. That’s why the outside evidence and that’s where the outside evidence comes into play. So, getting a private examination from maybe your treating physician, have them review the C&P examination if they’re willing to do so and submitting a response on your behalf. I think that’s a good, practical piece of advice.
Christian: So, Jenna alluded to this a little earlier. So, let’s say you show up to your Compensation and Pension examination, right? You have a left knee disability and you’re being seen by a Toxicologist or someone in the Cancer treatment department at a VA medical hospital. Is there a problem with that?
Michael: So, first thing you should do is still attend the exam.
Michael: just because that’s not a specialist in the area in the disability that you are claiming. But yeah, that can be a problem.
Michael: And so, if that is the case, veterans should afterwards either request a copy of the C&P examiner’s CV or resume to see exactly what the qualification of that C&P examiner is. If you find that the qualifications really don’t seem like they would meet the disability or relate to the disability that you’re claiming, I would suggest submitting your response to your C&P examination just pointing that out. Because, really the VA is required to provide someone to evaluate the condition that has some medical background or expertise in that area, generally speaking.
Christian: Okay, so what about a nurse practitioner or a physician’s assistant?
Michael: So, those are examples where that would likely be–
Christian: — probably be okay, right
Michael: Yeah, unless the nurse practitioner or the physician’s assistant had wholly unrelated experience.
Christian: Or was this very specific medical concept, like–
Jenna: Like TBI, traumatic brain injury, sometimes, some types of psychiatric conditions, the examination instructions explicitly lists the type of specialist that is needed for that particular opinion. You know, the thought process is, like I mentioned earlier this is a complex area, medically, you know, complex question, the Board member or VA employee, you know, probably went to college, probably got a job, but is not a medical expert, does not know how to answer and so that’s why they want an expert. But if you’re getting a medical professional who has completely unrelated experience in a very complex area of law, they’re no better at making that opinion than the Board member or the VA employee. They’re similarly situated and so you really, you can read the VA exam instructions and if they say that you need, you know, I believe it’s like a neurologist sometimes a neuropsychiatrist, certain things like that, then that’s when you want to challenge it if it has just a PA or an NP.
Christian: It would more likely be a successful challenge. So, something you had mentioned Mike, maybe getting some of your own evidence. We had mentioned DVQs before. Would it make sense for a veteran that wanted to submit some of their own evidence to have someone fill out a DVQ for them on their behalf?
Michael: Sure, I think if a veteran had as a treating physician that is willing to do so that it’s always better, well, not always, but many times it’s better for the veteran to have a physician who they’re familiar with, presumably, the physician knows the history, the veteran’s history. So, if the physician or nurse practitioner has experience with the veteran and they’re willing to do it I think having them fill out a DVQ form in place of maybe another exam would be a great thing.
Michael: For them to do.
Christian: And then again, just a reminder that although it’s your treating physician that doesn’t automatically, there are some different areas of law where a treating physician’s sort of trumps all other medical experts or medical opinions, that doesn’t happen in veteran’s law. The VA is supposed to consider it, give it as much weight based on how probative it is, how well explained, things like that, how thoroughly done, that’s sort of what probative value means. So, we’ve been talking a lot about medical experts, but there’s another sort of main type of expert in VA law and that’s a vocational expert. So, what is a vocational expert?
Michael: A vocational expert really is an expert in employment issues, if you will. They’re able to better translate a veteran’s disabilities into how those disabilities impact the veteran’s ability to work. The key term for veteran’s law is substantially gainful employment. So, they’re really looking at how all the service-connected disabilities, in particular, translate into limitations, functional limitations on the veteran’s ability to work in different capacities. Vocational experts are not medical experts. They have a separate of expertise and so they’re really looking at the case as a whole in terms of all the service connection conditions instead of maybe one in particular and translating that into ability to work.
Christian: Where does one find a voc expert?
Michael: So vocational experts can be found, you know, there are several people that are really specialized in this area and you know, different offices and representatives have contacts with those offices. But, if a veteran’s unrepresented, if they’re on their own and they wish to seek out vocational experts, you know, a lot of times they can do so. I would recommend by using the internet. You know, just practically speaking, there are a lot of good resources out there for veterans to take a look at and a lot of times the interviews don’t need to be done in person they can be done over the phone. And so, but I think it’s really important in cases dealing with unemployability issues, for veterans to seek out those type of experts because they’re just going to be able to provide an opinion that is far more probative and on point than say your regular medical examiner.
Christian: Yeah, because they can say because your knee pain makes it difficult for you to sit and stand you can only do so for so long this equates to this amount of occupation impairment or potentially complete occupational impairment or certain limits, which would narrow you job abilities.
Michael: That’s exactly right. It’s important to that, these experts really are able to look at all service-connected disabilities, because maybe, you know, an orthopedic expert opinion would only be able to focus very narrowly on those type of disabilities. A vocational expert is going to be able to look at a wide array of different types of disabilities and, as you said, translate that into their impact on the veteran’s ability to be employed.
Jenna: I think it’s important to highlight too, you know, especially situations that deal with individual unemployability, trying to get that 100% rating based on your inability to work. It’s really helpful to have a representative. If you are a veteran who is unrepresented in trying to find a vocational expert on your own and navigate that whole veteran’s benefits system, can be really overwhelming. It’s really important to reach out to your VSOs, reach out to any of the number of really well-qualified attorneys who can help you figure out the best way to make that argument and find the best vocational expert for your particular situation.
Michael: Yeah, that’s a great point. When you do find somebody, it’s good to keep in mind that they’re allowed to and it’s a good idea to have them review any previous Compensation and Pension examination. They can take a look at it and offer findings that may contradict what the VA examiner found and that can help and benefit your case for sure.
Christian: So, thus far we’ve been talking about a lot of the things that a veteran should do in the context of the C&P examination, what’s “don’t” Jenna? What’s something that a veteran shouldn’t do?
Jenna: Yeah, so I think the first thing you shouldn’t do is you shouldn’t downplay your symptoms. I think a lot of veterans, particularly some of the older veterans were raised or were brought up in this culture of being stoic. We see a lot of cases come through our office where veterans were taught not to complain about anything, to really pretend like everything’s okay even though they are in a lot of pain, even though their disability really affects their daily life. I think that Mike raised this earlier when he was talking about being honest and being expressive. The flipside of that is, don’t downplay, don’t pretend like you’re okay. Don’t tell the examiner that you can manage when you’re really struggling. I was looking at a veteran’s case today and he mentioned something called the warrior ethos and so it’s really this, you know, this mindset that veterans are really tough. That’s not going to help you get higher compensation. That’s really important.
Christian: Any thoughts Mike?
Michael: Yeah, we touched on this a little bit earlier. Just in terms of making sure that what you say is an accurate reflection of what’s actually happening. You don’t want to exaggerate your symptoms just because you think that maybe the VA won’t understand the severity of them. Because that’s going to be reflected on the record. If there’s something previously that was recorded that contradicts with what you’re saying now that can cause a problem in terms of credibility issues in the future. Don’t downplay your symptoms, don’t exaggerate your symptoms. Really, I would say, be as honest as possible during the examination and I think you’d be okay.
Jenna: It’s hard because exams are conducted on a single day. You might be feeling okay on that one day that you go to an exam. But, the examiner isn’t your treating physician and so they really only have the information that you’re giving them. If you go to an exam on a Wednesday, but that past Monday was a really, really bad day, you want to explain that. You kind of want to talk to the examiner about the whole history of your particular disability and “Do you have flare-ups?”, “Is it really worse in the morning? Is it better in the afternoon?” A lot of veteran’s, especially ones with physical disabilities, have changes in severity with seasons. It’s really important to, you know when we’re saying, “Don’t exaggerate, don’t downplay,” but also explain kind of how it goes up and down if it does.
Christian: Yeah, be as truthful and as comprehensive as possible, I think that’s the name of the game. So do you guys have any final thoughts on advice that you’d have for veterans navigating the C&P process?
Michael: I would just say that it is, unfortunately, we see veterans frequently that understandably are frustrated, that they have to get scheduled for yet another C&P exam, they’ve had a C&P exam on the same condition many times before, “Why do I need to attend another exam on the same condition?” But as we spoke to earlier, it really is important that you go to the examination and that you are there to be able to accurately relay any information, any additional information, new information, or just repeat the same old information. You know, VA really will use a missed examination as an opportunity to deny your claim. I just can’t stress that enough.
Jenna: If you’re going to multiple exams, there is a couple of different reasons for that, either VA has decided that the previous exams you went through weren’t adequate or they’re trying to get an updated understanding of how your disability has changed since that past exam. It’s always good to look at it as it’s better to go to a new exam and make sure that VA has the most accurate information rather than get a denial. I think that’s the best thing –.
Michael: Yeah, an unfavorable C&P examination is not the end of the road, there are a lot of options that you have to deal with that. As we said, either adding additional evidence or making legal arguments against the sufficiency of the examination. But, it’s more important to get the examination done and completed than not go out of fear of an unfavorable examination report.
Christian: Absolutely. Well, thank you very much, guys. Again, my name is Christian McTarnaghan and I’m here with Jenna Zellmer and Michael Lostritto, we’re three attorneys at Chisholm Chisholm and Kilpatrick and thanks for joining us today.