Top 8 Tips for C&P Exams
CCK Law: Our Vital Role in Veterans Law
Video Transcription:
Courtney Ross: Good afternoon, and welcome to Facebook live with Chisholm Chisholm and Kilpatrick. I’m Courtney Ross and I’m joined today by Alec Saxe and Mike Lostritto. Today we’re going to be talking about tips for C&P examination. If you have any comments or questions throughout the broadcast, please feel free to leave them in the comment section and we will do our best to answer them throughout the broadcast. I want to start just very generally talking about what is a C&P examination. So it stands for compensation and pension exam and it’s basically a medical examination that VA provides to assess a veteran’s claimed condition for service connection or an increased rating. VA relies on that medical examination to usually deny or grant a claim based on what the result of that exam are. They provide these examinations in accordance with VA’s duty to assist. So Mike, could you tell us a little bit about what I mean, when I say that the exams provided in accordance with these duty to assist.
Mike Lostritto: Sure Courtney, thanks. The duty to assist is somewhat unique to the VA system because the VA system is really set up to be a non-adversarial VA friendly system. What the duty to assist does is it essentially requires VA to obtain information throughout the appeals process or the claim process to help establish or substantiate a veteran’s claim. This duty to assist applies in different scenarios throughout a veteran’s claim and that means that VA will be obligated to go out in a clean service records treatment records and in certain instances that we’ll talk about today or the C&P exams to further evaluate the veterans claim.
Courtney; When might VA request that a veteran attend a C&P examination?
Mike: Yes, so there really are different scenarios when a veteran can expect to be ordered to or scheduled to attend a C&P exam. One instance is after veteran files the initial claim. Perhaps, they file a claim for service connection or an increased rating. Often times VA will then schedule the veteran for an exam to then evaluate the veterans claim or the veteran’s condition in terms of severity or if it’s service connection, whether there’s a Nexus but there’s a diagnosis and such. Another example would be if the board remands a veteran’s case, oftentimes the board will be remanding to obtain a C&P exam. It comes down to if VA determines that they don’t have enough medical information to decide a veteran’s claims or appeal, they could potentially schedule the veteran for a C&P exam. If a veteran has already been scheduled and attended a C&P exam for this particular condition, it’s possible that if VA determines that the previous exam was inadequate for any reason and there are whole host of number of reasons why an exam can be inadequate. But if a VA adjudicator determines that a previous C&P exam for that condition was inadequate, a veteran may also be under those circumstances in order to attend a new C&P exam to evaluate the same condition once again.
Courtney: I think it’s important to note too that C&P exams aren’t provided for as a way of for treatment purposes. So just go to echo what Mike said and we’ve already said kind of throughout the star of this broadcast is that it’s really used not for treatment but rather to assess a claim condition that a veteran might have a claim or an appeal pending for. I’m going to turn to you now, can you tell us a little bit about who it is that actually conducts the exams for veterans?
Alec Saxe: Well Courtney, so typically these are conducted by the health care providers. That being said they’re not always performed by doctors. Oftentimes VA will have other medical professionals such as physician assistants or nurse practitioners and in some cases, a third party outside medical contractors. That’s in my practice typically see them more with the somewhat more complex conditions, different forms of cancer, stuff like that. It’s likely you’ve never met your examiner prior to the C&P exam. It’s not going to be your primary care provider. In terms of how they conducted, they usually done in person at VA Medical Center, often times the examiners following basically a script where the last questions about your disability and how it affects aspects of your daily life and your daily functioning. This probably signals that the examiners completing what’s known as a Disability Benefits Questionnaires or a DBQ. Each of these DBQ is drafted to correspond with a specific condition, they are formatted for the examiners to essentially check a box yes or no, next to descriptions that most accurately depict the disability and question.
As you can imagine these aren’t very detailed. They don’t allow for oftentimes for accurate depiction of your conditions. That’s why it’s important to be as detailed as you can and elaborate in your responses to their questions. There will be parts on these exam reports that do document your statements such as in the medical history section or in any section, where you’d be ask to describe like I said how the condition or its symptoms affect you on a daily basis. Those are the important things to be aware of than to elaborate on in details, so that you’re not confined to the checkbox DBQ that sometimes to do a lot of veterans in. In terms of length, they’re probably last anywhere from 10 minutes to an hour.
Courtney: Yes, it can really vary and one more point about the DBQ too, I just want to mention is that VA’s continuing to use DBQ forms, but they used to be available to the public. So veterans used to be able to go onto VA’s website, download with the DBQ form for the appropriate condition and have their own private doctor fill it out and VA’s recently changed that. We recently did or CCK recently did a separate Facebook live on this issue and went over the details of what this change, was and why it occurred so you can check that out on our website or our YouTube channel as well if you want to find out a little bit more information on that. I want to turn now though to the actual tips. We want to give them this broadcast. So the first one is a very important one. If not the most important one here and that is to show up to the exam and to show up on time. So Mike, can you talk a little bit about this specific tip and why it’s so important in the implications that it can have on your appeal or your claim if you don’t show up for the exam.
Mike: Yes, absolutely. Thanks, Courtney. Show up and show up on time. It’s simple but it’s really important because what happens is if a veteran is scheduled for an exam, a C&P exam and they do not show up and they don’t have a reason for not showing up or if they have not requested the exam to be rescheduled, it’s really it provides a VA with a very easy option or avenue to just flat out, deny the claim and deny the appeal. So it’s really important that veterans attend the exam and if they are worried — if the veterans worried about attending the exam and the exam going poorly just know that there are potential avenues for options to fight back against a negative exam, but if a veteran doesn’t attend the exam at all, then there’s just not a lot to work with there. VA will probably deny the claim, probably deny the appeal based on the sole fact that they scheduled the veteran for an exam because they didn’t have enough information at that time to decide the claim. They still don’t now have enough information or evidence to decide the claim because the veterans and wasn’t able to attend the exam. We really like to see our veterans attend exams and if we need to deal with an unfavorable exam afterwards, we can do that. There is kind of an important tip I think because veterans may be missing exams currently due to the issues surrounding, the COVID situation, the coronavirus situation, that’s slightly different. VA has issued some guidance saying that if the veteran is unable to attend an exam based on either fear of attending in person or just an inability to attend, then they’re not going to take such a harsh position if a veteran doesn’t attend an exam.
For those reasons during this specific period of time, really VA shouldn’t be denying a claim based solely on the fact that a veteran was unable to attend an exam due to a COVID related issue that being said. It’s certainly foreseeable that this could happen, a veteran may not be able to attend the next couple weeks or next couple months and if their claim or their appeal was denied then they should reach out to the VA and explain the circumstances were such that they were unable to attend due to a COVID related reason. Like I said, that’s a little bit different scenario than regularly-scheduled C&P exams, but generally speaking for a regularly scheduled C&P exam, veterans are really encouraged to attend because it provides VA, a very easy avenue to deny your claim or appeal if a veteran doesn’t attend.
Courtney: If a veteran gets scheduled for a VA examination on a day and time that they know in advance that they’re going to be unable to attend, what kind of steps can they take to get ahead of that? To get it rescheduled or to make sure that they don’t get in a situation where they have to missed it and now their claims can be denied.
Mike: Yes. This is a good point. Scheduling conflicts obviously happened and VA is open to rescheduling an exam but communication is key and the sooner a veteran can reach out and try to reschedule the exam the better. It’s best not to wait to the last minute, the day of even to try to reschedule the examination but if a veteran reaches out to the VA and let them know that there’s a scheduling conflict and they like to reschedule their exam, they have every right and every ability to do so. I would just recommend maybe because I’m an attorney putting it in writing if at all possible just so there’s a record of it because you never know what can happen, what you might need to prove down the line, but certainly if there’s a scheduling conflict, we would encourage you to reach out and try to reschedule for a different day.
Courtney: Great, I think that’s a really good point. So tip number two, equally as important is to know the purpose of your exam and to prepare. There are ways that you can get prepared in advance is actually attending that or attending the exam. So Alec, can you talk a little bit about what I mean when I say know the purpose of the exam in different ways that veterans can prepare ahead of time.
Alec: Yes. Sure. So the most commonly be attending the C&P exams to establish either service connection or whether you’re playing condition is in service or if you’re already service-connected for condition, attending an exam for an increased rating for the examiner to document the severity of the condition which VA will use to determine the proper evaluation within the rating schedule. For service connection, you should be prepared to talk about the event in service and why you think it’s related to your current condition. The examiner is concerned with ideology or Nexus whether there is a connection between your current condition and your service. Your condition might have began a service or developed after service but as a result of service or might be secondarily causing or aggravated by another already service-connected condition. There are lots of ways to establish service connection and you should be prepared to speak about the ways in which it’s related to your service either having occurred in or being related to another condition that is already established for VA purposes as related to service. For increased rating, be prepared to explain how your symptoms have worsened over time and if applicable since your last C&P exam. I recommend making a list of symptoms of an impact your life, you can keep a journal of these symptoms, that’s going to be very informative for the examiner to document the range of symptoms and again their effects which at the end of the day is what they’re interested in documenting the severity of the condition. For instance in Orthopedic exam or a healthy mental health exam, if you’re seeking an increased rating, you can find VA’s rating criteria online. It’s helpful to understand which schedule your condition is rated on there, so that you know, what symptoms and effects constitute the criteria for a higher or lower rating and what questions you might be asked by the examiner. This will prepare you for the exam for a service connection exam as we said before be prepared to explain that the ideology or the Nexus connection between your current condition and service.
Courtney: Yes, and I would say to just to add to kind of keep in mind too, based on what type of exam it is. Orthopedic or mental health for something like an Orthopedic exam, you might be asked to do some like objective actual testing of your physical condition at the exam, where you’re not likely to have that with other conditions like a mental health condition. So just kind of be prepared and knowing what condition you’re being examined for ahead of time will help you to prepare and understanding about before you go into it. So the third tip and this piggybacks, well, I think off of what Alec was saying and in terms of understanding what you might be asked and what the examiners really focused on. So third tip is to be honest about your symptoms. Obviously, for an increased rating the assessments to do, excuse me, if the exams to assess the severity of your condition, you’re going to be asked a lot of questions. Questions about your symptoms and the severity of them and same with service connection exam. So Mike, can you talk a little bit about why it’s so important to be honest about your symptoms during the examination?
Mike: Sure, so it’s really important that veterans don’t attend an exam and try to exaggerate their symptoms because they think that they need to play up the symptoms a little bit. Sometimes they think and I think it’s common in other situations too. Maybe the examiner is not listening to me, I need to try to prove my point a little bit but really that can create a lot of trouble for a veteran especially because they’ve likely submitted lay testimony in the past or there were medical service records or treatment records that have been submitted already, which already tell a veteran story in a lot of ways and so by exaggerating symptomatology, that can create credibility problem if just a month previous or your previous to the C&P exam, something was said that contradicts what’s now being set of C&P exam. So it’s really critical to go in express your symptoms as they are or as they were and be honest, but not to exaggerate them. Similarly, though, it’s really important for veterans to not downplay their symptoms. This is something that at least in my practice, I unfortunately see sometimes, veterans don’t like to maybe share a lot of their current symptomatology or what’s really affect them, affecting them or they may say things that are better than they actually are because on that particular day, they’re a little bit better but over the course of the past several months of the past year, they’ve been terrible. They’ll probably be terrible tomorrow too. It’s just important that veterans use this examination as an opportunity to state their symptoms or their situation as it truly is don’t exaggerate but don’t downplay. Something as simple as walking into an exam room and having the examiner say, “How was your day today or how are you doing? The better and saying, “I’m doing great today.”, that may be interpreted and recorded in the examination report as the veteran is feeling well today, are doing well today when the opposite could be and probably is actually true. So just be careful of body language, be careful of how you’re conveying things and what you’re saying because it’s all being absorbed and soaked up by the examiner. The examiners watching every move you make and so you really want to go into it, thinking and planning ahead as to how am I going to relay with accurately happening to the examiner both in body language and through my words.
Courtney: Yes. I think that’s a really important point and keep in mind too that, this is all true even outside of the exam room. In a lot of cases the examiners paying attention to the veteran and watching them even as they’re waiting in the waiting room and observing all of the things that Mike just outlined. So keep that. I think that’s an important thing to keep in mind as well. Tip number four is to consider bringing someone with you. So Mike just covered of how important it is to be honest about your symptoms and some of the reasons why veterans may not be honest or really describe the symptoms in full is they’re uncomfortable talking about them or they may just be so used to living with the condition and the symptoms that they don’t think to describe, some of the things that they’re really dealing with on a daily basis. So bringing a friend or a family member or a caregiver who’s with you on a regular basis and really has the opportunity to observe your symptoms regularly and how they actually impact your life can also really be helpful. They can help to supplement some of the responses that the veteran may be giving to the examiner in terms of what symptoms he or she is suffering from and the actual impact that they’re having. This is especially true with conditions like mental health conditions where a lot of the exams and the questions that are being asked are based more on subjective reporting of the symptoms and not like the objective thing that I mentioned before with Orthopedic conditions. So if you have somebody who knows you very well and observes your symptoms regularly, you can also consider bringing them with you to help, help respond to what the examiner asked you. Tip number 5, is to consider taking notes during the exam. So I’m going to turn back to Alec if you can talk a little bit more about why that might be helpful.
Alec: It’s especially helpful if the exam is very brief, right? You may not have been able to present the examiner with a complete picture of your condition, so we encourage you taking during the C&P exams to document its brevity and to know whether you were able to sufficiently described your condition for the examiner. If you can take notes on what the examiners are asking, what your responses are, this piggybacks, a little on the Courtney‘s point, if you have someone there with you, that can be a tool for someone to take contemporaneous notes on what those examiners are asking you and your responses. That way when you review a copy of the exam report which you can do and which we will get to later, you can cross-reference it with your notes to compare. If you were asked something and you thought you had responded but they say there’s no indication that you did, that could highlight an issue or if they mischaracterized the response that you had, that would also be something that be useful to have notes for. So like I said, it will help you and your representative down the line, determine if the exam was adequate and might suggest that there’s a lack of information exam report, which you can argue, reduces its probative value when that goes to before a VA adjudicator.
Courtney: Yes, I think to keep in mind that sometimes the timing between the exam when you actually attend and when you or your representative may want to respond to it could be a few months. I know I certainly don’t remember the details of an appointment. I attended three, four months ago and so having those notes can be, as Alec said really helpful to be able to reference back and even writing down little details. You may not remember four months from now, having that to reference could be a big help in deciding how to respond. Tip number six is to keep in mind that the C&P examiners don’t know the status of your VA disability claim, their role in all of it is really just to provide this medical opinion. So Mike, can you elaborate on that tip a little bit more?
Mike: Sure. One thing I see in my practice is veterans will attend a C&P exam and think that it’s an opportunity for them to get additional information about the status of their claim, the status of their appeal or how the exam is going to impact their claim or appeal and unfortunately, that’s just not the right time or place to really obtain that information. As you said Courtney, C&P examiners are usually contracted or a lot of times contracted out to a private separate party, third-party contractor. VA is a large bureaucratic system with many subdivisions and sub-departments. and so the same department that conducts one exam might not be the same department that actually adjudicate the claim or vice versa. So just I think it’s important for veterans to keep in mind that when they’re going in to be examined for their compensation and pension examination, they really not going to be able to get any additional information about the status of their case or their claim or their appeal and it’s really not the time to — I would say ask those type of questions or maybe argue with the C&P examiner that may in and of itself may be something that the C&P examiner writes down in their report that could negatively impact your case or reflect upon you. Think of it as– it’s a third-party contracted, to do the examination and that report is submitted to VA adjudicators. That’s the time to raise any issues you might have from the exam or with the exam and you’re welcome to do so at that point, but just the examination is there just for the examination purposes.
Courtney: Thank you. Mike. Tip number 7, I’m going to go back to you for Alec because you mentioned this just a few minutes ago. This is to request a copy of your C&P exam and get the examiners name after the examination is complete. So can you talk a little bit about what’s the benefit of doing that and what’s the process for how to actually obtain a copy of your exam.
Alec: Absolutely, you have the right to request some intended copy of your C&P exam report and you do that by contacting the VA Medical Center where the exam was conducted or your VA Regional Office. It’s important to review the exam to determine if the results are favorable, meant to decide whether or not you will challenge the adequacy of that exam down the line because VA decision-makers really place a lot of weight on these exams when deciding your claims. You want to see that the exam was filled out completely and thoroughly like I said before reflecting the most accurate information possible. You can request to see the examiners credentials and that might be helpful in a case where for instance if it was a nurse practitioner and conduct an exam for a complex neurological disorder, there might be in order that he or she is not considered competent or qualified enough to evaluate that condition. That’s at least something you can raise that VA will have to consider. In terms of what you want to do if that exam is unfavorable or wrong. There are bunch of steps that you can take, in addition to providing your own statements challenging the inaccuracies of the emissions in the exam reports You can gather other favorable evidence that they would have to consider and weight against the unfavorable exam. For instance, you can ask a family member or friend to write a statement in support of your claim. You might ask them to describe their observations of your symptoms and how they affect you on a daily basis. These are commonly referred to in VA as buddy statements. In addition to that, you can request a hearing before the board of veterans appeals where with the help of your representative, you can present oral testimony in support of your claim. That’s also for challenging the C&P exams because it allows you and your attorney to point out to specific problems with the exam so that the veterans’ law judge has to consider it and they might agree with you on the side that the exam was lacking and that a new exam is needed. As we discussed earlier have a remand or send that back to the regional office with instructions to provide you with a new exam or some other additional development. The last thing I’ve notice, you can always ask your personal physician or primary care physician or a specialist that you have a relationship with, to provide an opinion or even complete the DBQ that we talked about earlier that form, that the VA examiners are following. That said if you proceed, you can choose to pursue that option with the DBQ and having your doctor fill that out. Let them know that it’s important to provide some written explanation, a rationale in support of their ultimate findings, conclusions because oftentimes will see the VA dismissed those private reports. Even if they’re following the VA some DBQ format because they’re not supported by a rationale or an explanation. Seems unfair of course, but that’s something that you should have in mind if asking one of your providers to provide opinion for you.
Courtney: Yes. I think any time you have a negative exam because as we’ve kind of emphasized throughout this broadcast, VA relies so much on these exams, on the results of them to make a decision and in granting or denying benefits that it’s going to be really important to respond a lot of to a negative Make sure that you’re doing some of the things that Alec had suggested. CCK has actually done a previous Facebook live on how to challenge VA examination. If you want a little bit more information and you want to check out that video on our YouTube channel or Facebook page or our website at CCK-law.com, you should be able to find that there and that’s really focused on a specific ways to challenge exams. The last thing I want to talk about is less of a tip that kind of just more information. We want to make people aware of regarding recent changes to C&P exams in light of the COVID-19 situation. So VA has suspended all in person examinations due to COVID-19 effective April 2nd of 2020, so just a few weeks ago. They are still offering virtual exams. There’s a couple of options, I’ll walk through here in terms of how they’re going to move forward with examinations. The first option is what’s called an ACE exam or an Acceptable Clinical Evidence exam. This option is essentially a record review. So in examiners determined, there’s enough evidence in the record. To complete an examination and the results of the exam are going to be based just on what is currently of record. There’s no in-person component to it. There’s usually no telephone or video chat component to it. It’s possible that the examiner may reach out to the veteran only if they need some additional information for the ACE exam, but most of the time it’s going to be based just on the record. The second and I think what will be a more common option is a virtual or tell us C&P exam. This is an examination that’s being done via video chat or over the telephone and a lot of the questions are going to be asked are going to be very similar to if you were in person being examined. Here the examination, this type of examination is not going to be appropriate for all conditions. So mental health conditions and a number of other conditions, VA has outlined as appropriate for a Telehealth or a virtual C&P examination. If you want to see VA’s list of these specific conditions, they’ve already outlined. You can check out CCK- law.com again. We just posted a Blog last week that includes the list that VA issued. If you’re interested in what specific condition has been okay, had been okayed for this you can find the list there. Conditions that’s not going to be or work as well for are conditions like Orthopedic.
So back or knees, we mentioned earlier in this broadcast that Orthopedic or physical conditions, a lot of the examinations require objective testing, where they’ll actually test kind of range of motion of the Orthopedic condition that a veterans claim. That’s not as easy or feasible to do virtually. So those are some of the it’s still kind of to be determined what the is going to do with those types of examinations. I think you want to keep in mind, if you are a veteran who gets scheduled for a virtual exam during the COVID-19 time that, all of the tips we’ve talked about throughout this broadcast still apply. You still want to show up to that scheduled virtual exam. You still want to take notes about the questions. You still want to be completely honest about your symptoms. So all of this information is going to apply to these different types of exams as well. If you are a veteran who has a condition that may be the virtual exams not going to work for, you can also consider possibly asking your private treating doctor for an opinion or if you’re a representative representing veterans, consider getting an outside independent medical opinion one where the veterans not being seen in person again, because of the current situation with COVID-19, but consider private opinions to be able to submit in favor of your veterans case. So that waiting for an in-person examination doesn’t slow down the case or delay getting a decision there. With that, I just want to turn back to Mike and Alec to see if you guys have any final thoughts and helpful tips for C&P exams.
Mike: I guess the only last thing that I would say is I know we’ve stressed how important it is to attend exam and that’s obviously true. If a situation arises where a veteran missed the exam and now they’re wondering what to do from there, I think at least I found that it’s helpful for a veteran to submit a signed statement that says or list out the reasons why they were unable to attend the exam and therefore missed the exam. Indicate that they are willing to attend a future exam if VA would schedule them for a new exam. I think that submitting that signed statement lays the groundwork for them to cover them in case VA either refuses to grant them a new exam. At least it’s something writing is something signed indicating that the veteran missed the exam for a particular reason and fully has the intention of attending a new exam if one would be scheduled. So I think that is a helpful tip for scenarios where veteran has unfortunately missed an exam.
Alec: Yes and I think for me, I would just add really doing your homework before you go to these exams, having an idea of the symptoms of the type of test that they might have to do there and how that corresponds to the rating that you’re trying to get that will help. Taking notes again during the exam oftentimes I have plenty of clients who call me and after the fact that without having submitted any formal statement to VA but when I get their case and they call me and say, “Well this exam was bad and the examiner didn’t ask me this or that.” or “That’s not what I said there” and for me who attorney and I work with a closed record, it’s frustrating because I often wish that the veteran had noticed it sooner, had provided that statement to VA for their consideration. So that by the time it gets to me that’s something I can point to because oftentimes VA and the board are going to overlook those statements. Those can be really essential to showing how an exam was inadequate and helping keep the claim alive and remanded back down for the veteran to continue to pursue it.
Courtney: I think those are great final thoughts. Thank you both for joining me today for the broadcast that concludes today’s broadcast on tips for C&P exam.
