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

How to Challenge a VA Exam (C&P Exam)
  1.  What is a VA exam and when do they happen in the VA claims process?
  2.  VA’s Duty to Assist
  3.  What happens at a C&P exam? What are C&P examiners looking for?
  4.  What are the differences between a physical condition exam and a mental condition exam?
  5.  How much weight do VA adjudicators give C&P exams in the adjudication process?
  6.  Can veterans get a copy of their exam results? How?
  7.  Can veterans request their examiners’ qualifications? How?
  8.  How to know if your exam opinion was favorable or unfavorable
  9.  How to challenge an unfavorable C&P exam
  10.  Final thoughts and things to remember

Video Transcript:

Zach: Welcome to our Facebook Live presentation. Today, CCK talks about challenging a V.A. examination.  We’re going to get into that, but we have an exciting announcement to make.

We are coming to you from our new location.  It is still in Providence, Rhode Island. We moved across the river.  We are now at 321 south main street, Providence, Rhode Island, 02903 were the same CCK  just in a different location, ready to come to work and serve our nation’s veterans.  Our nationwide practice continues. And so we just wanted you to know that we have. While we have a new physical space, we’ll still be doing the same quality work that we have always done. We have the same phone number. This will affect nothing. Hopefully, it’ll make us a little step better for everybody else.  But today, we’re talking about challenging a big exam. Joining me today, I’m Zach Stolz. I didn’t say that yet.  Right. Is Alyse Galoski. That’s Christian McTarnaghan. And they are attorneys here.  the three of us primarily work on court appeals. But our entire firm, as people who watch us regularly know, represents veterans at every step of the way, from the regional office to the Board of Veterans Appeals, to the court, to the federal circuit, all the way to the Supreme Court. If you need us to. So today we’re going to talk a little bit about all of those levels, probably not the Supreme Court, but about challenging V.A. examinations if and when that is necessary. How you go about doing it. We’re going to try to be a little bit quick and hit the broad strokes. If you want more information, please visit us at CCK–law. com. There is much more information about this topic and this topic, believe it or not, it could be discussed probably for two or three days. Today we’re going to do in about 10 minutes. So bear with us as we go through the high points. Challenging a V.A. examination.  first question is going to be for Alyse Galoski right here. What does a V.A. exam and when do they happen in the V.A. appeals process?

Alyse: Zach, the V.A. examination is basically an evaluation that or an examination ordered by the V.A.  Sometimes you can see it referred to as a compensation and pension exam. Sometimes it’s referred to as a disability benefits questionnaire. But really the distinguishing factor is the fact that it’s something that the V.A. ordered for you, and it can happen any at any point in the appeal. It can happen before your service connected or after.

Zach: And one of the things to remember about when a veteran walks into the Department of Veterans Affairs and files a claim for compensation, V.A. has what is called the duty to assist veterans. And as part of its duty to assist, it is in many cases obligated to go out and get an examination for a veteran. And sometimes it’s many examinations and it could be specific examinations for, psychiatric conditions or repeated conditions or anything like that. We’re going to get into that a little bit.

Zach: But that’s a little bit of the background of why this thing even exists.  and so what happens at the VA call it a C&P examination. Which stands for compensation and pension.

Zach:  It is shorthanded to V.A. C & P examinations. And sometimes when you’re with a busy V.A., a person or a busy rep, they’re not going to slow down and tell you it’s compensation pension, but that is what it does C&P stands for. So what happens from that examinations?

Alyse: So yeah, it’s going to depend on what the purpose of the examination is and you’ll know that based on what why the V.A. ordered an examination for you.  For example, if you are trying to establish a service connection, the purpose of your examination will likely be to look for a nexus. That is what’s going to connect your disability, currently with what happened to you in service. Some things that they might be asking to establish a nexus is how long you’d had a certain disability when you first noticed it, if you ever had any symptoms in service. If you have any other symptoms, that might be contributing to the disability if you have a family history. Basically, they’re trying to figure out what is causing the disability you have now and see if they can link it to your service. Another type of examination might be an examination that you have when you’re looking for an increased rating.  In that instance, they’re actually going to be looking at the severity of your disability, so they’ll be asking you how your symptoms affect your day to day.  and that’s really the biggest part. They’re going to be looking how severe your symptoms are rather than necessarily whether they’re related to service. Because usually by that point, it’s only been established.

But sometimes you may have an examination that does both. So, the longer term. The shorter answer is that it depends on the VA examination.

Zach: But yeah, there were several questions, and, as many people know, the idea behind a compensation and pension exam. And in the entire compensation kind of derogatory  process or decision making process, we’re trying to find that someone has a current disability, that it’s related to their time in service.
And then they need to figure out, as Alyse  was saying, how severe it is so that it can be related,  to the diagnostic code to, to get compensation for however severe the condition is and whatever problems it may cause at someone’s occupation.
So, Christian, let’s turn it over to you for a little bit. What are the differences between a physical condition examination and a mental examination?

Christian: Yeah. So I see those a little bit.

Zach: Yeah, absolutely.

Christian: So they’re actually very different. So, let’s assume for purposes of this answer that you’re already service connected for that condition. So if you’re going, probably the two most common types of examinations we see, for a physical or the most common, for physical is some sort of orthopedic, examination.  I like to use the knee as an example that a lot of cases that involve the knee, which makes perfect sense, a lot of wear and tear in the service, a lot of knee injuries in the service. So let’s say they’re trying to VA trying to see how severe knee disability is.  they’re sort of a couple of broad stroke things that are that are going to happen. That examination, most importantly, is range of motion testing findings.  The V.A. uses this thing, I think it’s called a Goya emitter. It basically is a protractor that they move next to your knee to see how far you can literally move it. So that’s going to be one large part of that examination. And that’s really important because like you were talking about, Zack, what V.A. is going to use these examinations for is to try to give you the appropriate disability rating. And the diagnostic codes for your knee are based on lots of range of motion or the other main part of the examination or functional loss that you have, functional losses, things like problems with standing, walking.

So they’re going to ask you, how long can you walk?  How long can you stand without sitting? How painful is it? Does it get more painful at times?  So that’s sort of going to be your basic run of the mill orthopedics. You can just take that.
They’ll do it. Similar for the elbow, for the neck, for the back. They’re all basically going to have similar broad strokes.
So, mental health or a psychological examination is going to be very different. So a lot of that’s going to have, there’s going to be no sort of testing on how far you can move or how far you can walk. That’s really going to have, a lot to do with what you alluded to before Alyse. How does your psychological condition affect your everyday life? How does it affect your relationships? How does it affect your ability to work?  How long have the symptoms happened? And so in a lot of these examinations, there’s going to be a lot of checkboxes, you know, are you feeling depressed? Do you have memory loss, things like that?  and I know that we’ll probably get a little bit of this. And we have full talks about this on our Web site.
But, being honest and open with your examiner is probably one of the most important things to have, in the back of your mind when you’re going to one of these examinations.

Zach: And then how much weight. So we’ve talked about kind of gone through these hit the high points of what happens during these. So now what, an adjudicator gets somebody to regional office or at the board? How much weight are they going to give this?

Christian: So in my practice,  the V.A. tends to give a lot of weight to the C&P examinations,  but they’re supposed to take a look and make sure that it all looks good for lack of it without getting too much into it.
Does it make sense? Is there a lot? Is there enough information there for them to rate it? Does the information sort of, not contradict? So, so they’re supposed to look to see whether they should be giving it a lot of weight?
They tend to give it a lot of weight, but they also and we have a lot of talks about this on our website as well. They also, should look to all sort of the evidence that goes to your rating.
So I talked about functional loss. The exam is going to be really important. But some of the other evidence in the record that maybe the veteran writes in a lay statement or that another medical provider gives about how long they can walk, how it affects their knee. Things like that should also be relevant.

Zach: So we talked about how these are important and, and CCK, we also help in developing evidence. And, and veterans are entitled to go to their own, doctors and get opinions. And these can be weighed with and against some V.A. examinations. And so it’s not just the VA examinations are the only piece of evidence that, that the V.A. is going to look at. But they are important pieces of evidence.

Christian: Yeah. Absolutely.

Zach: And so because of the importance of this, veterans might want to get a copy of the exam. They’re entitled to that right?

Alyse: Yeah, they are.

Zach: they how would they go about doing it?

Alyse: And we would encourage them to do so um. If you are represented, you can have your representative help you.  if you’re not, you can actually reach out to your regional office and they will give you a copy. You are entitled to a copy of that.

Zach: And what about examiners qualifications?  there is a case called Nor it came out from the Court of Appeals for Veterans claims. It was actually argued by Robert Chisholm of Chisholm, Chisholm and Kilpatrick.
And so it’s important, obviously, to get the exam. But do, you do want to make sure that your examiners are qualified? Can you talk a little bit about that? Were able to challenge those qualifications or at least get or at least get them so that we know what we’re dealing with, with these examiners?

Alyse: Yeah, I think one thing that’s important to know is that examiners there. They’re presumed competent.  but once you actually challenge their competency  and your case came out called Brink Way,  all you have to do is actually assert, make an assertion against their competency. And that is going to go ahead and put the ball back in court. The VA  then is going to have to explain why they found that examiner competent.  You’re also entitled to a copy of  the examiners’ background, so you’re right and you’re entitled to a copy of their resumé,  or other information about their qualifications. That’s also in the Frank White case, so that these are things that you are entitled to per the federal circuit. So. So is, you know, challenging and examiners competency is absolutely something that you can do

Zach: If necessary.

Alyse: If necessary. It’s sometimes not always the easiest thing to do, but it’s an option.

Zach: And how did you look, Christian, to see? How can you tell? It’s something that we deal with kind of day to day.

Christian: Yeah.

Zach: So we know what an unfavorable example we call them unfavorable. It just means that the examination does not establish one of those three things we talked about earlier.

Christian: Yeah.

Zach: You know, maybe an examiner says, no, this isn’t related to the person time of service. Maybe the examiner says it’s not as severe as the veteran believes it to be.

Christian: Yeah.

Zach: Maybe the examiner says that you don’t even have that condition.

Christian: Sure.

Zach: and it can’t be service connected. So those are some examples. What did you kind of look to see if it’s a favorable something that we can work with to help the veteran get what he or she is looking for and what kind of constitutes an unfavorable one?

Christian: Yeah. So in the case of service, connection and unfavorable medical opinion would be one that says your current disability is not related to service. So that would be what an unfavorable decision in the service connection context would look like in terms of a rating, an unfavorable decision. Would and I think you sort of started to talk about this would show that your condition isn’t quite as severe as as you might otherwise think. And one thing that I love to see in my practice is sort of the veteran can be their advocate in sort of helping to understand whether the examination is sort of as full and complete as it’s supposed to be, because that’s another thing. You know, if the veteran has severe problems with their knee, the knee just an easy example. There’s no particular reason why I’m using this other than this is easy to keep coming back to you uh. If the examination says you don’t have flare-ups, right. But you do have flare-ups and then the examination says that you have a certain level of functional ability, but it’s actually lower than that. Right. That would be an unfavorable exam because it’s not truly reflecting how severe disability is. And like we’ve mentioned before, what a reader is gonna do, because that’s what they’re trained to do, what they’re supposed to do. They’re gonna look at the exam and they’re gonna give you a rating based on what the exam says. So if it if it doesn’t show your level of severity or there’s something wrong with the explanation about why you shouldn’t be service connected for something, those are gonna be unfavorable exams, those are gonna be bad exams.

Zach: And then at least talked a little bit about how to challenge some of those and how to make sure that V.A. complies with its duty to assist. And that is something that we at CCK do every day at the regional offices, at the board of the courts. And it is certainly something that our friends at a DAV do or other veterans service organizations or whoever is representing you. This is something that you do need to be informed about and do need to work with your representatives on making sure that the medical evidence is saying what it needs to say and it gives an accurate picture, a truthful, accurate picture of what you are going through. So what’s that? Any final thoughts will start with Christian and work our way to Alyse.

Christian: Yeah. In terms of taking the concept of challenging examiner competency, they’re not automatically going to give you your what thing I want. They’re not automatically going to give you your exam. You really have to ask for it. so let’s make sure that if you want to see your exam, you’re asking for it quickly and then don’t. Don’t be afraid to write a letter to V.A. explaining how that exam might not exactly have everything that it needs in it. Or, you know, you can do this to your representative as well. Or there’s some sort of problem with the examination. I just keep in mind that this is sort of it’s important, but it’s not completely going to take your case if it doesn’t have everything that needs to have in it.

Alyse: Attend your C&P exam.

Christian: That’s a great idea.

Zach: That’s where we sort of started. go.

Alyse: Yes, So VA have a duty to assist you, but once you don’t show up to your exam, it’s very difficult to say that they haven’t met that burden. to the extent where you are really well, you’re not doing yourself any favors if you don’t attend your exams. So even if you if you’re feeling hesitant, if you don’t feel like they’re going to give you a fair shot, you have to go. Because if you don’t call, then you’re going to be out of remedies.

Zach: That’s a good point. That’s a good thing to close it on. Thanks from CCK and please visit us at for more information about today’s talk and one of our many, many other talks on V.A. disability benefits and other legal subjects. I’m Zack Stolz, Alyse, Christian McTarnaghan, thank you very much, have a good day. Thank you.