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Common C&P Exam Mistakes

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Jenna Zellmer: Good afternoon, and welcome to CCK live. My name is Jenna Zellmer, and joining me today are Michelle DeTore and Kayla D’Onofrio. The three of us represent veterans in their claims for VA benefits before both VA and the court of appeals for veterans claims. And today we are going to be talking about some common mistakes that are made during C&P examinations. We will get into what a C&P examination is in a second. Sometimes it is called a VA examination, but we have a lot of information on our website about C&P examinations in general, the role of examiners, kind of how to challenge an examination. So I encourage you to check out our website at cck-law.com, and let us just get right into it, Michelle. What exactly is a C&P examination?

Michelle DeTore: So as genocide, sometimes they are referred to multiple different ways. So C&P exam stands for Compensation Pension Examination. Sometimes VA calls the VA examinations. You also sometimes hear them called DBQ or disability benefits questionnaires and even sometimes QTC examinations. So altogether, they are the same thing. They are an examination or medical examination that VA goes out and obtains in support of disability compensation claim you have pending. So, the reason VA gets them is to either because the first way is that one of the elements for service connection requires that VA have a medical Nexus or a medical opinion that links an in-service event to a current diagnosis, so VA has to- part of their duty to assist a lot of times is that they have to go out, and get a medical opinion to see if they can obtain that Nexus, basically linking the two event thinking the current diagnosis to that in-service event. So that is one reason VA will go out and get the examination, and other reason is sometimes they need it to determine or assess the severity of a service-connected condition because either the previous examination you have is too old for VA’s purposes or they do not think that the evidence of record is enough to really show the current severity of a condition. Those are two reasons why they typically go out and get it.

So, the next thing is usually kind of what maybe an examiner does prior to an examination. Obviously there are things a veteran does to prepare. There is also things that examiner should do to prepare. So, typically the examiner supposed to be reviewing your entire VA claims file so that they are aware of kind of your condition, what the evidence of record says, and that is one of the things that they do in order to prepare for the examination, so then most veterans know that once they get there, there are usually typically having a conversation with the vet, with the doctor in order to kind of talk about the severity of the condition or kind of where the condition stems from. So, once the examination is completed the examiner then creates what we call those VA examinations, which is basically a medical report that they then send to VA. Typically, we see them in these hands, I would say within thirty to sixty days. Sometimes there is a little lag especially because what is going on right now but for the most part, I would say typically within thirty days and most usually within sixty days. They are then sent to VA. VA has them as part of the adjudication. That is kind of the process on what the VA examiners side sees, and that is also why VA does get them.

Jenna:Yeah, and I think you know, VA places a lot of weight on these C&P examination, so that is kind of why we wanted to talk about them today, and why they are so important. As you mentioned, VA really uses these examinations to gather a lot of evidence about either whether or not a veteran’s disabilities related to service or what the current severity of the service connected disability is. For that first point, you know, whether or not a veteran’s disability is really service, VA uses and as likely as not standard, we have a lot of information on our website about kind of how to obtain service connection, what that standard means, but if you are a veteran who is seeking service connection for a condition, you want to be sure that the examiner is using that standard. And then the second point as you mentioned, you know, whether or not your condition has increased once you have gotten service-connected. That is why C&P examinations are so important for that particular scenario because the examinations VA is going to put a lot of weight and value on that examination. So depending on what the examiner says about how your condition has increased in severity, that is going to influence these ultimate just determination about whether or not you should get a higher rating.

So with that said, first we are going to get into some examiner mistakes, and then we are going to get into some veteran mistakes, and hopefully, you know, we can elucidate the whole process for you, and hopefully help you go into an exam knowing what to look for, and to make sure that we can minimize these mistakes on both ends so that you get the best examination for your ultimate claim. So, Kayla, let us start with some VA examiner mistakes.

Kayla:Sure. So one mistake, that examiners make is misreporting what veterans say, and this can be for a number of reasons on VA’s, and sometimes they just overgeneralize statements that a veteran makes. Sometimes they are just misinterpreting what a veteran says, and that is why it is really important for veterans to be really clear and concise when they are talking to examiners, and we will get a little bit more into that a little bit later for what veterans can do to kind of avoid that mistake on the examiners part. Sometimes they also just do not include as much detail as possible when the veteran is speaking. You know, like I said, they overgeneralize something that the veteran said, and they do not include the specific quantities or time lengths of severity, things like that, and just kind of generalize the statements.

Another mistake that examiners can make is not reviewing the veterans file fully, so like we talked about earlier. It is part of the examiners duty to make sure that they have a really clear picture of everything in the veterans file, and how that pertains to whatever condition they are evaluating at that exam. So, sometimes they, you know, just do not have a very clear picture of what is going on in the veterans file, and sometimes when they are providing opinions, they are not actually looking at all of the evidence. They are not looking at some of the favorable evidence that is in there, and they just kind of point to anything in the file that is negative, so making sure that their opinion is really based on the full record, not just things that maybe would support their conclusion one way or the other.

Another mistake that examiners make is just the time that they spend on the exam themselves. So if you know you are to walk into an exam, and the exam only takes five minutes, it is probably not going to be an adequate report when all is said and done. When you are in the exam, the examiner should really be taking their time and asking thorough questions to properly evaluate the disability. They should not just be asking yes or no questions. They should really be talking about you know, how that disability affects you on a daily basis, how it impacts your ability to function, what it is really like for you. So not just kind of checking off the boxes and moving on. They want to make sure that they are really getting a clear picture of what your disability looks like, and how it affects you.T

Then the last one that we are going to talk about, and probably one of the more common ones that we see is within the opinion itself. A lot of times what happens is that examiners will just kind of state a bare conclusion. They will say your condition is less likely than not related to service and kind of leave it at that, but everything that they opine on any opinion that they provide does have to be supported by a pretty thorough rationale. That includes looking at things in the record, making sure that they are talking about your past medical records, anything that you mentioned on the exam including your lay testimony, what you are reporting symptom-wise, how you are reporting symptoms started or when they started, things like that. They also cannot speculate when they are coming to an opinion, so if they are not able to really get to the bottom of something, they are not able to provide the opinion based on what is in the record, what you reported on exam, they cannot just say that they have an opinion on something without supporting it based on what is actually a record.

Jenna:Yeah. I think that last one is really important because I mean, the whole reason why the examiner needs to provide sufficient reasoning for their opinion is because of the end of the day, it is really VA’s call to make the final determination, and if an examiner is just saying, “Well this disability is not related to service,” and that is it. The board does not really have enough information there to weigh the evidence, to determine whether or not you know, the veterans disability is as likely as not related to service, and at the end of the day if an examiner is just stating a conclusion without any rationale, it is really asking the board to adopt that conclusion at face value, and that is not something that the board can do. I think that is really a good point to end on what kind of mistakes examiners make.

These are mistakes that you know as a veteran, if you are going to an exam you want to be on the lookout for these things. If an examiner is not asking you a question, you want to volunteer that information. If you do not think the examiner has reviewed your file, you want to investigate that, so that is really good point. So let us get into some mistakes that veterans make. Michelle, do you want to take us away?

Michelle:Yeah, so I think one of the most common ones we see is a failure to attend, and this can be for a variety of reasons. Sometimes it is because of that the veteran did not get notice. Sometimes there is something that might have happened. I think there is sometimes can be confusion is the fact that VA regulations for certain types of claims actually require VA deny if you do not attend an examination, so I think that sometimes it can be frustrating. There is a lot of examinations scheduled. You do not necessarily maybe understand why but unfortunately, it is not the veterans’ best interest to always attend the examination. If for some reason you are unable to attend the examination, it is always good to get ahead of it, and notify the Compensation Pension Department as well as VA. VA does have regulations that say that a veteran can show good cause for why an examination was not attended by them. Good cause can be they did not get notification or good cause could be you were sick or there were something that intervened in cause you to miss the examination. So, keep that in mind is that, you know, rule of thumb always go to the examination, and if you cannot make it, make sure that you try to notify VA ahead of time or if you know you are unable to do it because maybe you are in the hospital, always try to notify VA after us to why. It is another good reason as to why reading any decision that comes in is very important because a lot of times, it will tell you that there is a mistake in the examination, and sometimes when we talk with our clients, it is because they never got notification of it. They did not know it happened, so that is why it is also very important to review decisions that are coming in.

Another common one we see which kind of goes back to what Kayla was talking about is misreporting. Sometimes veterans do not quite understand what was being asked when an examiner does ask something, so I think that they will provide sometimes maybe an incorrect answer to the question and it is of no fault to the veteran just because they did not understand what the examiner was quite asking. Maybe they thought the examiner was referencing a different condition when they asked the question, so I think that is something to make sure when you are in examination that you really do understand the question. If not, maybe ask for clarification on it.

And again, it is another reason to read an examination because sometimes you do not realize that you did not- you misunderstood something until you read the examination through. You know, the examiner saying you did not have flare-ups and you are saying, “Well, no, I do.” That is not what I meant when I said he, you know, maybe you thought that they were asking, “Are you having a flare-up right now?” Not whether or not you have flare-ups in general. So stuff like that can sometimes happen, and again, that is why it is really important to read the examination after.

I think that sometimes another point that we see is that a veteran is not clear or specific enough or does not fully participate in examination, so sometimes what you see is I think that you know, how do you prepare for an examination? So a lot of times you know, we do think that it is helpful to know what the rating criteria does say. We also think it is important not to just say what you think the examiner wants to hear. They are not the one that is going to be deciding your case. They are not adjudicators. They do not really know case law or regulation, so if you are saying things like that, they might actually go against you and not in your favor. Our best advice always to veterans going to the examination is to be as honest and upfront as possible. Do not hold back, but also be honest about the severity of the condition and what is going on at that point in time. I also think that it is very important to when they ask you about flare-ups, even if they do not maybe ask you how often it happens to tell them how often it happens and what happens during flare-ups.

Be specific. Be descriptive as possible because that is the stuff. If you are talking, you are saying you have good days and bad days. All the examination is going to say you have good days and bad days. It is not going to tell you them what a good day is, what a bad day is, how often you have good days versus bad days. So I think it is very important to be specific when you are talking about that stuff, and you know, really talking about how things really do impact you to be very clear in that description.

Jenna:Yeah, I think you know, jumping off of what you mentioned about, just being honest and specific and really telling the veteran or the examiner, what you experienced, say today, a kind of the overall history of your disability is really important because from my perspective, appealing for decisions to court. I have talked to many veterans who went to an examination and did not either feel comfortable talking to the examiner or you know, has that mentality that is so many veterans have, where they just want to suck it up and not complain and pretend like they are okay. And so, that really comes back to bite you when you are in court or even at the board, and the board is looking at the evidence and looking for specific evidence about how your condition has affected you. If you go to that examination, and you are trying to put on a good face and just not explaining the reality of your condition, then the board does not have that evidence, and it cannot give you the benefits to which are entitled and so downplaying your symptoms is an error that I see a lot that veterans make when they go to examination.

Then on the other side, you know will often see examiners accuse veterans of what they call malingering which essentially means exaggerating your symptoms in an effort to get compensation. Just going back to your appointment show about being honest. Do not downplay your symptoms, but also do not exaggerate them. Really, just be straightforward. Do not tell the examiner what they want to hear because if the examiner does think that you are malingering, the chances are the board is really going to put a lot of weight on to that examiner’s opinion. If that examiner does say that you are malingering, that is why it is so important to request a copy of the examination because you can read it before the board makes its final decision. And so, if you see a copy of an examination that says that your malingering, you can write to the board or write to the RO and kind of explain what was going on. You can get your own private doctors’ opinions to kind of refute that. There is all sorts of different ways to kind of prevent that from happening.

And then the last thing that I see sometimes in appeals that core is you know, veterans will not really understand the role of the C&P examiner, and they will not understand what is at issue. It s really important to remember that these C&P examiners are not your treatment providers. They will often explain that in the beginning of the examination. They are just interviewing you and examining you in order to provide an opinion to the RO or to the board. If you are going in for an increased rating claim, it does not really matter to them whether or not you had your condition in-service or whether or not it was service-connected. That has already been an issue established, and so what you really want to do is focus on the current severity of your condition and vice versa. So if you are going in and you are trying to get service-connected for a condition, telling the examiner all about your current severity is not going to help them make their ultimate determination about whether or not your condition is related to service. And so, making sure that you really understand what the examination is for is really important to allow the examiner to make an opinion. That is most favorable to you. Kayla do you have any other issues that we see with the examinations?

Kayla:Yeah, absolutely. So I think we have talked a lot about what can kind of happen and what can go wrong during the exam itself, but once the exam is completed, its kind of on VA at that point to make sure that the exam is adequate and adjudicate the claim as they should, so some of the other issues that we see are really more, so with the adjudication process related to the exams not so much with the exams itself. One issue that we see has to do with the type of examiner who is providing the exam for the veteran. For certain conditions, there are a requirement that VA is supposed to have a particular type of examiner provide that opinion. Now with that in mind, it does not mean that someone who is a nurse practitioner for example is not qualified to provide an opinion on your condition. This really goes for if you have some sort of specialized condition where a medical professional who specializes in that field is required, such as if you are getting an examination for a TBI where a psychologist or psychiatrist, neurosurgeon or neurologist would be required to provide that exam. That is really what it means. It does not mean that a nurse practitioner cannot provide that opinion. It just means that some conditions do require someone specialized in that field. If you do not think that the examiner was qualified for one reason or another, it is within a veterans rights to try to get the examiners credentials from VA. They can request a copy of those.

In general, VA will presume that the examiner is qualified to provide that exam unless the veteran does challenge their competency at which point VA has to then kind of look back and make sure that they were qualified, and explain why if the veteran does challenge that. Some of the other issues that we are seeing specifically right now are related to Covid-19. So VA, like we have kind of talked about it, some exams are done a little bit differently now because of Covid. Some exams are no longer performed in person just to kind of avoid exposure where we can. They have determined that certain exams can be done over the phone or through video chat, and they are also determining that some exams do not require the veteran to really participate at all. They can provide the opinion just based on a records review only.

In the case where there are records review only, you really want to make sure you are staying on top of VA to make sure you get a copy of it. VA will not always notify you when that medical opinion is complete. Going back to what Michelle said, make sure you are reading through decisions when when they are issued to make sure you have all the evidence that VA is using, especially right now because they may be getting medical opinions without you necessarily being notified that they’ve been done.

For conditions that do require in-person exams, we are seeing a pretty significant delay in some of those. There is a huge backlog from when VA facilities warn scheduling them at all. They are outsourcing a lot of them as well, which is causing even more delays. So if you do have a condition that requires an in-person exam, for example, a lot of orthopedic conditions where they have to really measure your range of motion using the goniometer, I think it is called. They will require an in-person exam for that just to make sure that they are adequately testing your disability. If you do have a condition that requires an in-person exam, unfortunately, we are seeing a lot of delays on those which is in turn causing delays in getting decisions for those conditions.

And then one adjudicating exams, when adjudicating claims like we talked about before, VA really does rely heavily on these exams when they make their decision. In a lot of cases, they rely exclusively on these exams, so making sure that you get a copy of it, making sure that the examiner is really looking at everything that is up record, and they are not relying on just kind of negative evidence is really important.

Jenna:Great. I think just to point on your point about the contact exams, VA is making a push to make all VA examinations contact exams, and so I think this goes back to kind of Michelle’s point about kind of how there are a lot of different names for exams, you know, including QTC. There are a lot of companies that provide examinations for VA, and so it is just important to know that if you do get contacted by one of those contact examiners, that is a legitimate VA examiner or examination for VA purposes. I think it can be really confusing for veterans who are contacted by a non VA entity, but just something to be aware of. Just some final tips, Michelle, do you want to kick us off and then we will kind of go through. We have six[?] kind of things to be aware of tips for when you go to an exam and what to do during the exam.

Michelle:Sure. One of the first ones is it can be helpful to bring somebody with you. I think this is helpful, especially when you have psychiatric conditions that cause memory loss or you know what TBI like cause memory loss. They can help fill in some things that maybe you do not remember. They can help back you and severity of conditions. I like it when you are going for late[?] in attendance because you need help for your activities of daily living, and you have your caretaker with you or something that helps you with those activities of daily living because they can back you up. They can kind of specify what they do for you. I will say I have seen this sometimes come back to hurt people. So when you do bring someone bring someone that is going to be helpful in a sense, so if somebody you think might want to say negative things about you, I wouldn’t necessarily bring them. I also do not recommend them meeting alone with the examiner. I think that is very beneficial for the client or a veteran to always be present because if things are said when you are not there to the examiner, you kind of have no way of countering it, and I just think that it is in your best interest to make sure you are present. They should not be asking to meet alone with somebody else.

Another thing is I think that sometimes it can be helpful to bring evidence you think that is important for the examiner to look at. We often will recommend that clients bring our private medical opinions. Sometimes it can be very helpful to bring lay statement or lay evidence that a friend or family member has. They can also talk about the severity of a condition or maybe kind of help verify a stressor that men have happened in service, that maybe VA does not have documentation, but you do have some money in service. They can verify that. I mean, I will say this again, it is very important to be honest and upfront during the examination because one of the things that is very important, I think, for people understanding what Jenna and Kayla got away through, is that view relies on these very heavily.

When you have an examination that is not adequately showing the severity of the condition, your first step is now trying to counter that examination and explain why it is not showing the severity. So the first thing we are doing is, a lot of times we are submitting lay evidence to counter that, explaining the severity, but we also now need to explain why it was not talked about during the examination. It is another hurdle you have to essentially overcome. I understand completely why clients sometimes do not want to talk about severity. They are afraid that I talk about suicidal ideations. They are going to want to commit me or it is going to get back to maybe an employer, but what ends up happening is then, you are talking about the fact that you experience them. Now we are explaining why you did not report them and said, you know, we are showing why there is a contradiction, and it is just a hurdle that if you do not need to have it, you do not want to try to overcome it.

Jenna:I think that makes a lot of sense, and I think just a point about bringing evidence to the examination. That is so important because even though, as we mentioned, the examiners do need to review your entire C-file, those files can be thousands of pages long. The examiner might not know what evidence you want him to focus on, what evidence is going to be most helpful for him, and making him or her on making her opinion. And so, if you can bring [inaudible] evidence or like the private exam opinion, I think that is so important in order to really kind of focus the examiner, and be both efficient and effective because you know, as we said, these examiners are supposed to take time to look at your condition and examine you, but they do have a lot of exams to get through. So as long as we get is– if we can make their job as easy as possible, I think that is going to be helpful for everyone in the long term.

One other thing, a couple other notes or tips that we have in going to exams. As we mentioned, you can ask for your examiner’s credentials. You can ask for a copy of the examination. Kayla or Michelle, do you know how would a veteran go about getting the name of their examiner in a copy of the report or they just ask RO?

Kayla:Oh, yeah, they can request that information directly from the Regional Office and the Regional Office should be able to provide it to the veteran. Like Michelle said, sometimes there is a little bit of a delay in getting everything uploaded on VA’s end after the exam is complete, so it may not be reasonable to expect it immediately, but you should be able to get a copy of it usually within thirty days or so.

Jenna:Great, and then once you get a copy of that, that is why it is really important to be aware of your options and what you are entitled to. You are entitled to a copy. You have the right to get a private of medical opinion as we mentioned, to counter that examination. If you find that it is unfavorable and you know, as I mentioned you can challenge the examiners qualifications if you have a condition that requires a specific type of examiner. You can use the Freedom of Information Act to get the examiner’s resume to see whether or not you think that examiner met those qualifications. Then finally, if you want to challenge an unfavorable examination, we have a video on our website, which we will link to below, to how to challenge that examination. So Kayla, do you have any final thoughts?

Kayla:Yeah, I would just remind veterans to, you know, after going through an examination, try to just take notes as to kind of what you went through during that exam. If you can remember what sort of questions were asked, if there were any different tools that were used during the process of the exam, how long the exam was, how thorough the examiner was, just so you have a thorough record of what the exam looked like. So that when you do get a copy of that exam report, you can make sure everything kind of matches up with what you remember, and if it does not, you kind of have something to challenge the exam, and something that is a little bit more fresh in your memory. Like I said and Michelle said, sometimes these exams do take a little bit of time to get uploaded. You know, thirty days, your memory may not be exactly what it was right after the exam. Just having a fresh picture of what the exam actually looked like can be really helpful if you do need to challenge it in the future.

Michelle:I like to say one thing. It is when you do review the examination, there may be some inadequate stuff or like inaccurate information in there. Some things are minor, you know, they might get your date of birth or something wrong, but some things are very major, and you should not just let them say it. You should be working to try to submit evidence to counter that whether it is lay evidence or something, just because as soon as they have that information, they are going to assume that is fact, unless you show them otherwise. I just think that it is very important to make sure that you are- like we said, some things get misunderstood or misreported. You want to try to correct those as soon as possible so that the information is also before VA adjudicators.

Jenna:Yeah, I think that is a really important note to end on. Thank you guys. Thanks for joining me today. Again, my name is Jenna Zellmer. I have Kayla D’Onofrio and Michelle DeTore here, and hopefully this was helpful to you, and hopefully you will join us next time.