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C&P Exam and DBQ Changes Amid COVID-19

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Robert: Chisholm: Good afternoon. This is Robert Chisholm from Chisholm, Chisholm and Kilpatrick. Joining me today is Brad Hennings and Christine Clemens. Today we’re going to be talking about Compensation and Pension exams, as well as DBQs and how VA is handling all of that in the current crisis. But before we jump into that, we’re going to have two quick updates. First of all here at CCK, want to let everyone know that we are open for business. Our court team is functioning. Our agency team is working, we are fully operational, and we are all working remotely. With that update, I’m going to jump right over to Brad Hennings who’s going to give us an update on what’s happening at the VA. Brad? Take it away.

Brad Hennings: So much like CCK, VA itself at the regional offices and at the Board of Veterans Appeals, they are making decisions. They are processing claims, issuing decisions, issuing checks, issuing payments, about making awards. So that’s really good news there. They have managed to go remote with much of their workforce. In particular, the Board of Veterans Appeals has been that way for a number of years. And they actually just announced a record number of appeals. They’ve decided, decisions they’ve issued in the first half of the year. So they’re on track to do about a hundred thousand cases a year. We’re in just through about three or four years ago, they were doing about 50,000 cases a year. So the good news is although the regional offices themselves are closed for visitors,  do not go to your local regional office. They are still working and if you have evidence or information for your claim, please either mail it, fax it, or use the VA’s online systems to enter that evidence or submit that evidence for your claims and appeals.

Robert:: So the other thing I wanted people to know is that the court of appeals for veterans claims, which is the court, if someone is denied at the Board of Veterans Appeals would appeal to the court. They are fully functional. And in fact, we have a number of telephonic oral arguments coming up in the next two months. So everything is functioning, and I think that’s really important. One of the challenges for VA, though, is getting medical evidence right now. And what I mean by that is in almost every claim, medical evidence is critical part of the case, whether it’s a current exam to determine the level of disability of veterans entitled to, or what we call a medical nexus exam that relates the condition to service or potentially relates the condition to service. And VA has historically used the Compensation and Pension Exam. Historically that had been an in-person exam. But Christine, things are changing now. Can you talk a little bit about what’s changing?

Christine Clemens: Yeah, definitely things are changing. The in-person exams have been discontinued as of April second, VA has discontinued in-person examinations. They say that they’re discontinued, I would say that they’re probably suspended. That at some point in the future, VA will go back to doing in-person exams. There are two other types of exams that I think it’s important for people to know about. One is that in certain cases, the examiner may determine that there’s enough information without having to see the veteran in person. And if they have questions, they may follow up by phone. Those are called ACE examinations or Acceptable Clinical Evidence, we typically refer to them as records review examinations, those are still happening. The other kind of examination is a video or Tele C&P examinations that VA has been talking about having over the last few weeks and they are now moving forward with implementing them. They are not suitable for all conditions. So VA is not conducting them across the board. They have determined that some conditions are more suitable for these Telehealth or Tele C&P examinations, most commonly for mental health conditions. And essentially what that does is it allows the veteran to be in their home and to speak with the examiner via computer, very similar to what we’re doing here, and to have a teleconference with that provider so the provider can see the veteran and speak to them and ask them the questions that they would ask them typically in person.

Robert:: So, do we know what impact this is going to have on, I’m guessing we really don’t know yet what impact it’s going to have on say, for example, an orthopedic exam that historically would have to be done in person. And what will happen to those claims in the meantime?

Christine: We don’t know. I mean, if the examination can be, if it is one of those ACE, if it’s something that can be conducted outside of the presence of the veteran just by reviewing their records, maybe they have recent test results. They have recent medical treatment, maybe they have provided VA with private medical records, or they had previously had one of their physicians complete a Disability Benefits Questionnaire, then that evidence would be in the file and the examiner may determine that they could conduct an examination outside of the presence of the veteran. But in terms of somebody who needs to have that examination on their case, we don’t know. You know, we suspect that they’re going to be suspended until VA has, until they resume their in-person operations. Perhaps they’ll come up with something else but I don’t know that there’s any discussion of that at this time.

Robert:: So you mentioned the Disability Benefits Questionnaires, so-called DBQs. That’s the acronym for them. And they’ve been in use now for I think, at least 10 years? Maybe a little bit longer. But recently, Brad, things have changed with the DBQs. And I think all three of us have thoughts about this. But do you want to take the first crack at offering your thoughts on what’s happening with the DBQs?

Brad: Sure. So the DBQs or otherwise known as Disability Benefits Questionnaires are way– they were set up as a way for VA to capture the appropriate medical information to rate a veteran service-connected disability. So the questionnaires themselves were designed and modeled to match the rating codes, which is how VA rates all of the veteran’s disabilities. Now for many years, they had made those forms publicly available. So a veteran could go to their own doctor, either their VA treating clinician or their private treating clinician and have them fill those forms out, and then they could submit them as medical evidence to support their disability claim or appeal. And that was a very powerful tool for veterans. Unfortunately, VA abruptly removed all of the public-facing versions of the form so that the average person can no longer just download one of those forms and go to their private practitioner to get them. The VA C&P Compensation and Pension examiners will still be utilizing them and still have access to them. But veterans and their own clinicians no longer will.

Robert:: So Christine, you were able to find a fact sheet from 2018 that talked about how good these DBQs were for veterans and how good they were for the process, in fact.

Christine: Absolutely. You know, part of the goal behind these DBQs according to VA 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, who were familiar with their medical history, who knew the nuances of the condition and the severity and weren’t necessarily considering them from that one day, that one point in time. So it allowed for more control over the claims process, which traditionally veterans hadn’t had a whole lot of control in that process. And they allowed, for the medical providers to gain access to the information that they needed to evaluate a veteran’s claims. The DBQs were noted by VA to be part of their transformation plan. And the goals were to eliminate disability claims backlog, to increase access to services and benefits, and to end veteran homelessness and part of the goal and having these DBQs publicly available is that it aim to increase efficiency while further engaging veterans service members, survivors, and their families. So it’s certainly surprising that they would eliminate these Disability Benefits Questionnaires. They had, I believe, 70, maybe a little more than 70 that were publicly available for all different types of conditions, including conditions that were maybe more rare, that would require a specialist to be familiar with the condition and to provide an examination, so it might be harder for them to get an examination at VA. And so the removal of these is both surprising and especially in light of these goals that VA has cited in their own fact sheet from 2018.

Robert:: So transparency was obviously a big part of this because before the DBQs if you went to your doctor and said “can you write about my orthopedic condition?” and as an orthopedist, it is what the doctor was going to write about might not have matched what was in the rating schedule. And so you could bring the doctor the DBQ and say, here’s what the VA needs to know, can you answer 1, 2, 3, 4, 5, 6 questions. And that allowed transparency for both the veteran, the doctor, and then the VA could use that to raise the claim. So now we’re in a situation where these aren’t publicly available. And VA is going from in-person exams to this telemedicine thing, which is a good thing. But why take this drastic action at this particular point in time, when you know, we are in the midst of this crisis and veterans could still theoretically mail these to their doctors, the doctors complete them and then submit them to the VA. It makes no sense to me.

Christine: I agree it makes no sense to me either. You know, I think the other thing to think about with, with appeals modernization, with the AMA, is that one of the things that a veteran needs to have if they’re trying to now file a claim that was maybe previously denied, or if they want to provide new evidence to VA to consider an appeal that was recently denied is that they need to have new and relevant evidence. And the Disability Benefits Questionnaires are important for establishing that for establishing things like what the condition is, the level of severity of the condition, the possible etiology or causes of the condition. And so you know, there are more options now in AMA and this supplemental claim is supposed to be a good thing with a reduced standard of review with this relevant standard. But now we’re making it harder. Your VA is making it harder for veterans to actually get that evidence that they need to support their claims.

I think the other thing is that you mentioned transparency, I always thought the DBQs were a way to sort of level the playing field. So instead of VA saying “Well, this opinion that you have from your doctor doesn’t, they’re not really speaking our language. And it’s not hitting these points that we need to ensure are here in order to grant the benefit or to grant an increased rating”. Is that then we were looking at like and like we were looking at two different, you know, two, maybe, examinations, that compared the same information and ultimately, how important that information was, was something to be weighed by VA. So even if there were inconsistencies in these forms or how they were completed, VA could ultimately, as a fact-finder, make the determination considering all of the evidence. So it is concerning and a little confusing, I think, shocking, that VA has, has eliminated them from public use.

Robert:: So one of the things I like to do, VA released a statement as to why they’re eliminating the DBQs. And I’d like to spend a moment to sort of go through these reasons that they gave. First, they said the new DBQs must be made with each update to the rating schedule. That is, that is correct. But they’re going to have to do it anyway, aren’t they? And they’re going to give it to their own doctors, and not only going to give it to their own doctors, they’re going to give it to the private contractors that they use. So the only one that doesn’t get to use this is the veteran him or herself and that– it just makes no sense to me.

Christine: I think–

Robert:: That thing–

Christine: –it especially in light– I’m sorry,

Robert: Especially in light of the fact that this is a non-adversarial, pro-veteran system.

Robert:: Exactly. Well said. VA says it’s safeguarding against fraud. Companies and individuals have been charging veterans to complete DBQs. There are some bad actors out there. That’s always the case in any system. But that shouldn’t be a reason for taking away from everyone. And as you pointed out, Christine, VA will ultimately make the decision as to what weight it’s going to give to any piece of evidence, including medical evidence. It seems shameful to me to take it away from everybody because of a few bad actors in the process. The other thing that they said is DBQs were being completed for veterans remotely. VA says these exams must occur in person. That is ironic given what’s happening right now when they’re going to telemedicine and ironic is the nice way of saying it, in my opinion.

Brad: I think that raises some really excellent questions as to why they were supposed to appear in person. There’s nothing in the law that governs veteran’s benefits, either by a statute or regulation that says these examinations must occur in person. Now, there may be situations where that piece of evidence should be entitled to more weight depending on how it was conducted. That is not what they were saying. What VA is really doing here is responding to an Office of Inspector General Report where the program was given poor marks by the OIG’s inspectors. And so in my opinion, they overreacted and decided to shut down a number of these excellent provisions of the Disability Benefits Questionnaires.

Christine: I think there are also some, I have some concerns of the report, I’m living in the tri-state area where I am. You know, people very frequently have doctors who live in other states from where their home is. And so there wouldn’t, there shouldn’t be a red flag raised by somebody going to a doctor outside of their region. The other thing is the VA itself uses examinations, forensic examinations to review the record only. And sometimes conditions can be completed without the medical provider seeing the veteran that doesn’t make it any less reliable. It just really depends on the circumstances of the condition, the exam, and what evidence is there in the file.

Robert:: So the other question I had about this is these things have been publicly available for, I want to say over 10 years, and now their VA just takes them away. Is there any legal recourse out there that we know about that someone could bring an action against the VA to stop this potentially? To make them bring it back to DBQs?

Christine: I know some veterans organizations are certainly investigating. Some attorneys are currently investigating this right now. I don’t know. I think it certainly thorough investigation is warranted, but I don’t know the answer to that.

Robert:: So to me, the outcome here is that it’s going to, if VA is not going to put these DBQs back and make them publicly available, it’s going to be more difficult for veterans to get their doctors to complete reports that will meet the criteria necessary for the VA to adjudicate, that is make decisions on the claim, and that is not a good thing. It’s a very bad thing given what’s happening right now.

Brad: The changes that have been proposed or that have been implemented, not proposed, implemented by VA are designed for the convenience of the agency, 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, because they won’t have to deal with evidence that’s 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.

Christine: Brad, and I think when you say make it easier, it seems to be a way to put more control in the hands of VA so that they can sort of control what the exams look like a little bit better. You know, one concern that one thing that they’ve mentioned on the website is for people who are living abroad, they now have over 30 examiners abroad. I don’t know that that’s sufficient, perhaps with Telehealth but as we know Telehealth isn’t going to cover all types of exams for people who are living in more rural areas where they’re further away from VA facilities. They could be traveling substantial distances to attend these VA examinations. And I think really, there’s going to be an equity issue with the removal of these DBQs for people who, you know, even more so who fall in these categories where their access to VA medical services is already more limited.

Robert:: Well, I think that’s all I have. Any final thoughts before we wrap up here today?

Brad: I think this is a, you can see that this is related to VA’s attempt to decide all of the legacy claims in the legacy VA disability system. This is another tool that they are using to get as many cases done as quickly as they can. Unfortunately, when that happens, I think that accuracy and fairness is often sacrificed. And so it’s incredibly important that if you have evidence, whether it’s on the old DBQ forms, or DBQ forms you found or just regular private medical evidence to make sure that you submit that to the VA, work with your clinicians, get that in your file so it can be used for your claims and appeals.

Christine: I think one other important point is that even though VA has eliminated these Disability Benefits Questionnaire from their website, that veterans can still submit private evidence. They can submit evidence from their doctors. It might not be on this form, but they can still submit those records, they can request VA to obtain those records where those records would be helpful to their case. So this doesn’t mean that there’s a total elimination on that. And so I want to make sure that that is clear that they can still submit outside evidence in support of their claims.

Robert:: And we regularly will get outside expert medical opinions, and submit them. So with that, I’d like to conclude and thank both Brad and Christine today. Tune in to CCK-law.com. We will continue to update our website, our Facebook page. As we learn new information. We will share it with you, continue to tune in to our Facebook Live, we’re doing them every week. And if there’s anything that you would like us to talk about, please reach out to us on Facebook and we will try and cover that topic as well. Thanks, everyone.