26 April 2014

Insuring an Adequate VA Compensation & Pension Exam

By Lauren Kologe, Vietnam Veterans of America
When a veteran files a claim for disability compensation or pension benefits, the Veterans Administration (VA) is often required to provide a medical exam to confirm the veteran’s eligibility for benefits and to determine the appropriate disability rating.  This is known as a C&P exam (Compensation & Pension).  The first question the veteran should ask the doctor is, “have you had a chance to review my claim file?”  If the answer is no, the veteran should ask the doctor to first review the claim file. The veteran should only proceed with the exam after the doctor has reviewed all the information the veteran has submitted and VA has received regarding the claim (the claim file or c-file).
The same is true when the veteran asks his or her own doctor to provide an opinion on the claim.  The doctor must review the veteran’s entire claims file, state that he or she has read it, and comment on the veteran’s military and medical history contained in the file so that it is apparent the doctor has actually reviewed the records.
If you, the veteran, had an examination that was short, cursory, or one in which the doctor asked questions that he or she should have known from reviewing your records, you will want to obtain a copy of the C&P exam from VA.  You are entitled to one free copy under the Privacy Act.  If the doctor did not state that he or she read your claim file, and misstated or left out relevant facts contained in the claim file, you will want to point that out to VA, and you will want to ask for a new examination.  VA is required by the “duty to assist the veteran” to provide examinations that fully consider the veteran’s medical and military history.
This is supported in many cases by the Court of Appeals for Veterans Claims, Federal Circuit, VA law (Title 38 of the United States Code), and VA regulations (Title 38 of the Code of Federal Regulations).
Fulfillment of the duty to assist “includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Green v. Derwinski, 1 Vet App. 121, 123-24 (1991); See also, 38 U.S.C. § 5103A(d). 
In the case Bielby v. Brown, 7 Vet.App. 260, 268 (1994), an examiner failed to read the claim file, and the Court held that an independent medical examiner’s opinion is without evidentiary value where he failed to review the veteran’s record, and thus had no basis of fact or data upon which to render an expert opinion.
Even if the C&P examiner states that he or she has read the claims file, if there are obvious errors or inconsistencies in the reporting of those facts, the medical opinion is not adequate.  The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).
The VA’s regulations require that a report of a disability examination must be adequate for rating purposes in order for it to be justifiably relied upon by a rating authority in order to evaluate a veteran’s disability.  38 C.F.R. § 4.2. 
Moreover, an examiner’s assessment of the disability in the exam report must be based on an assessment of the disability, both currently and historically, that is factually accurate.  Id.

Some of the items in a veterans’ claim file may be other medical opinions and treatment records.  The Court of Appeals for Veterans’ Claims has remanded several claims where the Board failed to discuss and weigh the credibility of favorable evidence.  See, Cathell v. Brown, 8 Vet.App. 539 (1996) (BVA ignored reports of treating physician and another psychologist without adequate explanation).  See also, Cropper v. Brown, 6 Vet.App. 450 (1994) (BVA failed to address all evidence of record including probative value of veteran’s psychiatric examination).
In Gabrielson v. Brown, the Court determined that a medical opinion that the VA intends to use to deny a claim must discuss the positive evidence, or major positive factors, in favor of the claim.  See 7 Vet. App. 36, 40 (1994).  Conversely, the Court stated that the Board may not adopt a doctor’s opinion as the basis for its denial of benefits when the doctor’s opinion failed to discuss all the positive evidence in support of the veteran’s claim.  See id.
If you have been denied a claim for disability benefits based on an exam (whether VA or private) that did not consider your military and medical history, please contact a Veterans Service Officer near you to explore options for appealing or re-filing a claim.  You can find a VVA representative near you by using our search tool at: https://benefitsforum.org/Rep.aspx.  You can also find a listing of all persons accredited to represent Veterans in VA claims by using VA’s search page at:http://www.va.gov/ogc/apps/accreditation/index.asp.  VSO representatives prepare claims at no cost to the veteran.  Attorneys or agents may charge for representation on appeals. 
Lauren Kologe is the Deputy Director of the Veterans Benefits Program at VVA.

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