The Do’s and Don’ts of VA C&P Exams

CCK Law: Our Vital Role in Veterans Law

Video Transcript

Maura Black: Hi, everyone. Thank you so much for tuning in to today’s CCK Live discussion. Today, we’re discussing Do’s and Don’ts of VA Exams, or C&P Exams. I’m joined today by Rachel Foster and Nick Briggs, both of whom are accredited VA claims agents that work here at CCK. And my name is Maura Black. I’m a managing attorney at CCK.

C&P exams are, I think, a hot topic these days, especially due to COVID scheduling issues, backlog issues at the VA. So, we hope that this information is helpful to you all who may be undergoing some part of the C&P exam process.

We’re going to get started by giving an overview of what a C&P exam or a VA exam is. So, the reason why these are called C&P Exams is because that’s a shorthand for a Compensation and Pension Exam. They’re VA exams that are conducted for the purpose of assisting in a claim for benefits. So, an exam that’s ordered through the VA will typically have one of two primary purposes. First, the exam might be looking for a diagnosis of a condition. If a veteran has a pending claim for service connection for a disability, the examiner might review the veteran’s file and try to determine whether the veteran has a diagnosis for which service connection can be granted.

A second primary purpose of a C&P exam or a VA exam is to ascertain the current severity of a veteran’s service-connected disability. So, if a veteran is already service-connected for a condition and is seeking an increased rating for that condition, then the exam is a good opportunity for a medical professional to go through the veteran’s records and do an interview often with the veteran and discuss the types of symptoms the veteran experiences, how long-standing those symptoms have been, how functionally limiting those symptoms are. And that’s the information that usually makes its way into the C&P report or the examiner’s report.

These exams are not for treatment purposes, so the doctors that veterans see at these exams are not going to be providing proposed treatment plans, proposed therapy plans, medications, or anything like that. They’re solely for the purpose of evaluating a claimed condition or an already service-connected condition. These exams can be conducted by VA healthcare professionals, but these days, it’s far more common to see that they’re conducted by outside contractors that VA will hire for the purpose of conducting exams, usually so that most veterans who need these exams can get prompt exam appointments and so that they can get an appointment that’s close to them, so they don’t have to resort to traveling to a Regional Office or a VA medical center.

So, that’s just an overview of what the exam is, which is important information to understand, what the examiners are looking for and what their goal is. They are supposed to have reviewed the complete claims file that the veteran has with the VA, including any pertinent medical records. You’ll often see exam reports that they say that they’ve reviewed certain records of the veterans that the VA has. So, that’s really critical. They are supposed to be undertaking that review so that they have some context before examining the veteran.

So, now, we want to move on to things to remember to do and not do during exams or when you’re approaching the exam process. So, I want to start with Rachel. The first thing is that we want people to know that it is important to attend these exams. As I mentioned before, lately it’s been tough during the pandemic for sure, for people to be able to make these appointments, and there have been a number of exceptions that VA has made under certain circumstances, given people’s inability to leave their homes as freely as they used to. But generally speaking, as VA still continues to schedule these exams, it’s important to attend. Can you talk to us about why it’s so important for veterans to attend these exams?

Rachel Foster: Of course. So, VA places a lot of weight on these exams when they’re adjudicating a claim and it’s crucial that you attend it. If you do not attend or you need to reschedule your initial C&P exam, it could potentially result in a claim denial. So, you want to make sure that you informed VA of your inability to attend an exam as soon as possible and reschedule it. So, you want to keep those lines of communication open.

If you’re seeking an increased rating, missing your compensation and pension exam could mean depriving your claim of up-to-date medical evidence as adjudicators may have to rely on the potentially outdated evidence of record. So, those symptoms that disability picture that Maura was describing earlier, may not be associated with your file if you’re unable to attend an exam. If you’re filing a claim and you don’t attend your exam, you could also potentially lose your effective date.

Maura: Great. Thank you, Rachel. Definitely steep consequences if exams are missed. There are some regulations that talk about good cause for missing exams. I do believe we have more information about this on our blog at CCK-law.com. But suffice it to say for this discussion that there are circumstances in which you can demonstrate that if you do miss an exam due to a scheduling problem and inflexible commitment, there is some latitude to communicate that information to VA and explain that you’d like a reschedule.

So, it’s possible that you can do that. It’s just definitely important, as Rachel said, to know that VA places a lot of weight on these exams, and usually if they’re missed, VA puts their hands up and says, “We don’t have enough medical information to adjudicate this claim.” And that usually results in an automatic denial, which is unfortunate, but it’s important to know if you’re going through this process or about to be.

Nick, can you talk to us about the importance of understanding what the exam is about? So, it’s really critical for veterans to go into an exam and to understand what kind of questions are going to be asked and why they’re there for the purpose of the exam.

Nick Briggs: Absolutely. At the end of the day, you can only talk about what the examiner is going to be asking you about. So, a lot of veterans tend to talk about everything that’s affecting them. But in reality, you should know in advance what the exams going to be on and what they’re going to ask you so that you can focus on that condition because that’s ultimately what the examiner is confident to talk about. That’s what they’re going to focus their final report on.

So, in terms of what to be prepared to talk about, it’s always important to talk about the impact of those conditions on your daily life, on your ability to work if you’re still working. Those are the things that the examiner will use to shape their opinion. For an orthopedic condition, in particular, you should be prepared to talk about how it affects your ability to work. But also, how it affects your ability to do day-to-day things like putting on your shirt or tying your shoes, or things like that.

For a psychological condition, same thing, you should be able to not only explain how it impacts your daily life in terms of affecting your ability to work, but also how it affects your relationships with your friends, your family, and things like that.

And then, in terms of the type of exam, you should know what the claim is for. If it’s for an increased rating, they’re necessarily going to be asking you different questions than if the exam were for a service connection claim. Oftentimes, veterans talk about what happened to them in service, but if you’re talking about an increased rating claim, the examiner is more concerned about how the disability affects you currently, and less concerned about how it was initially caused in service. So, sticking on topic, answering their questions, and focusing in on how it affects you on a day-to-day basis, or in the case of a service connection exam, talking about how it happened in service is going to be the way to make sure that you get the best possible exam from your examiner.

Maura: Great. I think these exams are such an important part of the claims process. And I think those that are out there pursuing claims and appeals and looking for increased benefits or new benefits for different disabilities, the C&P exam is a big moment for a person pursuing benefits. And I think, to Nick’s point, it can be a little overwhelming especially if exams have been ordered for multiple conditions, which is something that happens. They sometimes will do multiple exams on the same day for various conditions. And I think that the process is not really very lengthy. I think it can go by rather quickly for people who attend these exams, and I think there’s a lot of pressure on people to make sure that they get everything out there and tell their story and explain to the examiner exactly what happens to them in service and what’s happening to them now.

The reality is that that’s really not exactly what the examiner is there to do. They have a very specific form from the VA. They have specific instructions to examine a certain thing, whether it’s to look for a diagnosis of a condition potentially related to service or whether it’s to look at the current severity of a disability and that is all they are there for. They are not going to be adjudicating claims. They’re not really going to be actively involved in the process of adjudicating claims. They’re just putting together a report that gets sent to the VA and is used for claim adjudication purposes.

So, to Nick’s point, it’s really critical to know what the exam is for, and keep in mind, what is the goal of the exam? In a perfect world, with the examiner saying that disability is related service, would they say that the severity of your condition has increased? And if you keep in mind that discrete goal and really make sure that your discussions center around that, I think it can be easier than feeling like there’s a lot of pressure to talk about a lot of different things and get into things that are not the examiner’s focus.

Another thing that is really important to do and I think that it sounds pretty obvious, but it’s important to remember is to really be honest. Rachel, can you talk to us about why it’s so important for veterans who are attending exams to be very honest and open about the types of disability symptoms they’re experiencing and about the things that they’ve experienced in the past that the examiners might ask them about?

Rachel: So, as you mentioned, it is incredibly important to be honest because although your C&P examiner will have already or assumed read through your file, they will compare your statements and what you say on the examination with what’s already in the record.

And also, as you mentioned earlier, it’s not a treatment. You’re not meeting with your individual therapist or your care team. This is someone who is going to be evaluating you for compensation purposes. So, their job is to take down the accurate severity of what your disability picture is like. And they’re going to not only be looking at your statements, but also the statements of record. So, consistency is really a key factor here. You don’t want to discredit yourself or risk VA making a negative credibility finding if there are statements in the file that are really not reflective of the type of severity that you’re explaining on the date of the exam.

Maura: Great. Along those lines, it’s really important to not downplay the severity of your symptoms. So, Rachel talked about how important affirmatively it is to be honest about what you’re experiencing. And also, to keep in mind the consistency element, that’s really critical for VA. We see a lot of denials of claims because people have reported different things in the past. It doesn’t always mean that it’s an appropriate basis for a VA denial, but it is something that VA is looking for.

But they’re also looking for honest information from veterans about the true severity of their condition. So, it’s really important that when you attend an exam and you sit down and the examiner says, “How are you feeling today?” And you say something courteous and conventional which is, “I’m fine. How are you?” If you don’t feel fine that day, you need to speak freely and say, “I’m in a lot of pain,” or “I’m experiencing a lot of anxiety,” or “I’m feeling really depressed today. It was really difficult for me to get out of bed and come to this exam, and this is how I feel most days,” or “This is the first time I’ve left my house in two weeks,” or something like that.

It’s really important, again, to just be thinking about why you’re there and why the examiner is there and what the goal is for you to accomplish, which is to show that you have a disability that you’d like benefits for, and not treat the appointment as any type of interview, like any standard interview that you might have in other circumstances. It really is a time to explain exactly how your disability symptoms affect you.

Another thing to think about is to really think about the presentation of your symptoms over time, and how they affect you more severely at times than others. So, if you have an orthopedic disability and you have flare-ups, let’s say, of a spinal condition or a knee condition. And you’re not having a flare-up on the day of the exam, but you want to talk about the details of that, it’s really important to go into detail. You might say, “Today, I feel okay, but this is the first day in 10 days that I felt fine because I’ve been experiencing a flare-up of my symptoms, which makes me feel X, Y, and Z, which causes this degree of pain.” It’s really important to get into those details.

Another thing to think about is, retrospectively, how has your condition affected you over time? Can you pinpoint a time in the past when it started to become extra severe? Have you been experiencing the same constant symptoms for weeks or months or years? That information is important because, as I think most veterans who are going through the appeals process know, VA is looking at the exam report, but it also is important that that information speaks to the entire time period that’s on appeal. Exams might be coming into play a year or so after a claim is filed. So, really that whole year is up for grabs in terms of how a disability has persisted and affected a person.

So, it’s important to be able to provide all that information if you can. One thing that helps that we’ve seen that can be helpful is to consider bringing a person with you that knows what your disability symptoms are like on a day-to-day basis. It can help to have a third party who can supply information that you might forget or who can say, “I’m there to witness so-and-so’s symptoms every morning or every afternoon or every day for the full day, and I can attest to their severity and describe them additionally.” That can be very helpful information.

Nick, I want to come to you for the next thing that we want people to avoid, which is to avoid exaggerating. And I think that’s kind of feeds into the point that Rachel made about consistency and honesty, but can you talk to us about how exaggerating symptoms comes up sometimes in this context?

Nick: Like you mentioned, it’s basically the opposite side of the honesty coin. You need to refrain absolutely from overhyping your symptoms or over-reporting certain things. There’s a technical term that examiners will use, malingering, which they will use to classify any exaggeration of symptoms that they notice. And they’re going to note that exaggeration in their report, whether or not you think it’s fair. That’s why it’s incredibly important to just do your best, to be honest, don’t over-report your symptoms, just be a clear and concise reporter of how you’re feeling.

And then, if you ended up getting a copy of your report and you notice that the examiner thought you were malingering, the best thing that you can do in that circumstance is to do what you kind of already suggested. It’s too late to bring a family member or friend to the exam, but you can submit statements from friends and family after the fact to highlight that, no, those are actually your symptoms. That’s how you feel on a day-to-day basis.

And then, keep in mind that the DBQ forms that these examiners are using are largely available to the public at this point. So, you could provide a copy of the same form to your own treating physician or another doctor that you see and have them complete the form or provide a statement for you explaining that those symptoms, while you may not have reported them before, are as severe as you’re currently experiencing them. And that’s one good way that you can go about rebutting the malingering finding that the examiner might have made if they thought you were exaggerating your symptoms.

Maura: Really good point, and I bet some people out there that are listening are saying, “How will I know if the examiner made a finding that I was malingering or exaggerating because as standard practice when you leave these exams, you do not get to take away a copy of your report the day of the exam. VA doesn’t affirmatively send them to you. So, if you want to review an exam, you can request it through the Regional office. You can send them a letter or give them a call and ask them to send you a copy of the examiner’s report once it’s completed.

There’s definitely some lag time. Examiners will take a little time after the exam appointment to finish their report, especially if they’re asked to provide a medical opinion that requires a second look at your records, or outside medical information. But it’s important for people to know that you can request a copy of your exam report and if you have any suspicion that the information in that report might not be accurate or might not be complete. I know that there are plenty of circumstances that people have experienced out there where they feel like the examiner rushed through the appointment, or maybe didn’t understand the point that the person at the appointment was trying to make, maybe there was a disconnect or a miscommunication. It is important to get a copy of your report and carefully review it, and as Nick said, if you have any basis on which to rebut any findings in the report, you can do so in writing to the VA.

So, if the examiner wrote down something like the veteran experienced seven flare-ups a year, but it’s really seven flare-ups a month. It’s important to send a note in and say this was inaccurately transcribed or whatever. The examiner did not get the facts right on this. I experienced symptoms that are more in accordance with this rather than that which appeared in the report.

It’s a lot of work to do this, but I think it affords more peace of mind for folks to be able to review the exam report and know that they do have a way to speak out against it. If there’s something in it that is bothersome or not accurate, not representative of a person’s disability symptoms. So, thank you, Nick, for that.

Last question or last bit of advice, I should say, Rachel. After the exam is over, what are the options that people need to be remembering? So, after an exam, it’s really important to know what the next steps might be. What things can people be mindful of and aware of after an exam is conducted?

Rachel: Sure. So, after C&P happens and you get a copy of that exam and the results are unfavorable and results in denial of benefits that you’re seeking, you do have several options.

So, one option is to retain an accredited representative who can maybe obtain a private medical opinion to counter that VA examination. Even though VA relies heavily on their own VA exams, the veteran has the ability to submit private medical evidence. So, that’s something that you could do.

You can also check the credentials of the VA examiner to question or ensure whether they were qualified to apply on that specific disability that you were seeking a claim for. For example, a doctor who specializes in an orthopedic condition should not be or is not the most qualified to assess a veteran’s PTSD, or post-traumatic stress disorder.
One way to get a copy of the examiners’ credentials is to submit a request using the Freedom of Information Act or a FOIA request.

And another option is to gather and submit lay statements in support of your appeal. This is exactly what Nick was describing, so if there are any inconsistencies that were noted on the examination, or if it seems as if the examiner was suggesting that you are malingering. Probably one of the best ways is to support your own credibility and to establish what the severity of your symptoms are.

And the last one of the options could be to request a hearing at the Board of Veterans’ Appeals. This would allow you, and if you are represented, your representative to attend either a virtual hearing and point out the specific problems through the VA examination and present evidence that may counter or weaken those exam results.

Maura: Excellent. Thank you, Rachel. I think we’re going to move on to some closing points. I know I have a couple but I want to turn it over to you two. Are there any other things that you think are important for veterans and their family members to be aware of about the examination process, before we conclude for the day?

Rachel: I’ll jump in. We talked a lot about credibility and making sure to avoid malingering and being honest. That being said, there are going to be occasions where you have a certain care team and you may feel more comfortable disclosing symptoms to one provider, if you’ve established rapport over another, or if you have a new treatment provider, you might hesitate to disclose symptoms. We see that especially in cases with suicidal ideation. So, if those kinds of symptoms are not documented in your record, or frequently documented in your record, or if there are a lot of instances where you maybe denied a particular symptom but that is something that you actually do experience, it’s good to explain, possibly in a lay statement, why that might be the case.

Maura: Great. Thank you, Rachel. Nick, any final thoughts?

Nick: You got to keep in mind that there are multiple different types of exams and exam forms for different conditions. It’s not always going to be the same list of questions, which is why it can be helpful to know and ask in advance what the examination is for, if you don’t already know. And then to be prepared to focus on the specific questions they’re asking because they’re more concerned about getting the answers they need than the answers that you are providing. But at the end of the day, you need to be the one answering their questions and focusing on what you think is important. So, it’s kind of a balancing act that you need to be aware of.

Maura: Definitely. This is a process that is really well served by some preparation beforehand and some research and review after the fact. So, my advice would be, before the exam, this has been mentioned by both of you, know what the exam is for. And to Nick’s point, there are certain forms that the examiners will use, especially if it’s an increased rating issue. VA is asking their examiners essentially to look through a list of questions or prompts that in some way aligns with the rating criteria for the condition being examined.

The examiners usually use what we call DBQ forms or disability benefits questionnaires forms. They have a form for specific types of disabilities, for psychiatric conditions, for heart conditions, for intestinal conditions. And those forms are available on VA’s website. They were previously taken down, but they’ve been put back up on VA’s website. Regardless, we do have a link on our website, again, CCK-law.com, if you want to access the forms there.

If you have the time and the resources to be able to download those forms before the exam, then you might have a snapshot of really exactly what the examiner is going to be asking you. So, that gives you some time to look through the questions and think about how you might answer them, reflect on it, sleep on it. And hopefully, that results in a more streamlined process at the exam, more time spent on the most critical questions, and on the information that VA is really going to be looking at or looking for in adjudicating your claims.

And then, after the fact, again, like we talked about, really getting a copy of the exam is extremely crucial if you have any suspicion or any concern at all about how the exam might have gone and what was communicated and whether the examiner really did hear you out. I know that people have issues with that. The process is, again, it’s not –It’s very strange to be talking to your doctor about personal information and personal symptoms, and they’re not there to provide you with help. They’re just sort of listening and checking off boxes. I can imagine that that’s a stressful, strange, uncomfortable experience.

So, for peace of mind, and for the purpose of really advocating for yourself, it can be very, very helpful to get a copy of that report after the fact and look through it to make sure that it’s accurate and thorough.

Thank you both so much for these tips. I know you both have worked for years in this field and have counseled numerous veterans, numerous claimants on the exam process. We’ve all had our fair share of reviewing a lot of exams here at CCK, walking people through the process, talking to them after the fact. And so, these tips are the things that we’ve really kept in mind and I think we’ve really narrowed in on overtime in our practice to make sure that people feel prepared and feel comfortable with this process, which is, again, not the most comfortable one by default.

So, again, thank you for this advice. We’re really hopeful that it’s helpful to you out there who have tuned in and who are about to be in this process, or have been in it, or will be in the future.

Thank you again for tuning in and don’t forget that we do have additional resources on our website, CCK-law.com. Thank you so much, everyone, and we hope to see you again next time.