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Compensation & Pension Examinations
When you are ordered to attend a C & P examination, you must attend. Failure to show up is likely to terminate your application for benefits immediately or cause significant delay.
Don't reschedule the exam, even if it isn't convenient for you!
You have an absolute right to a good and adequate C & P examination.
Pro Tip: The C & P examiner does not make the decision about your rating! The determination of your claim rests at the VA Regional Office!
Inadequate Exams are a routine. An inadequate exam may be one where the examiner isn't well qualified to offer an opinion, doesn't address the disability you claimed, doesn't appropriately measure parameters required during the exam, etc.
Under no circumstances should you attempt to instruct or object to the examination as it is occurring unless the examiner causes you pain or discomfort. Do not ever display anger or emotions during the exam. You can deal with all that later at a more appropriate moment.
The inadequate examination is an excellent point for appeal. If your examination has not addressed the condition as it should have, you have the right to appeal and ask for a more thorough exam.
You may wish to consider an IME at this point.
TITLE 38 PART 4 SCHEDULE FOR RATING DISABILITIES
Subpart B
Sec. 4.70 Inadequate examinations.
If the report of examination is inadequate as a basis for the required consideration of service connection and evaluation, the rating agency may request a supplementary report from the examiner giving further details as to the limitations of the disabled person's ordinary activity imposed by the disease, injury, or residual condition, the prognosis for return to, or continuance of, useful work. When the best interests of the service will be advanced by personal conference with the examiner, such conference may be arranged through channels.
Note: The VA may claim an examination is inadequate for the purposes of rating and the veteran may make the same claim. If you believe your examination was less than perfect, you may appeal that.
All too often, the examiner doesn't stick to the rules he or she should follow closely.
I've personally had examinations by professionals who were concerned about my health and went way beyond what they had to do to ensure a perfect examination. I've also encountered examiners who appeared to be totally dumbfounded by the world around them and they hardly noticed I was there.
You have to prepare for either extreme. The following will tell you how to get the best exam and what to do if you don't feel your exam was adequate.
It's your job to understand how the C & P exam should progress. Nobody can or will do this for you. Before you have a C & P exam...read the instructions for yourself. Read this page carefully. Now, read it again.
Then, go the the VA Disability Worksheets.
Find the category that fits your claim. Read until you understand what the examiner should be doing.
Also, review the C & P Examiners Guide.
Commit to memory as much as you can of the general guidelines that will apply to you.
The rest is easy.
Pro Tip: When you are examined you may be asked about your abilities to manage your own finances. The examiner might ask a simple question like, "How do you pay your bills each month?"
The wrong answer could result in the examiner making the comment that you are "Incompetent to manage your finances." That's the first step to having a fiduciary appointed to take control of your money.
For example, you might tell the examiner that you aren't very good at balancing a checkbook or that you don't have a good head for math so your spouse takes care of all that. Many families have an arrangement like that and it works well for them.
In the eyes of VA though, that lifestyle may indicate that you couldn't do it yourself and you'll soon receive notice that VA is proposing to appoint a fiduciary.
If you are capable of managing your finances, even if you don't actually balance the bank account each month, be sure to use caution when answering questions about finances.
Preparing for your C & P exam
Get to the exam early. When you arrive, remember that the people nearby may be employees of the C & P department. Don't say anything about your exam. Don't speak with anyone you don't need to speak to.
Have a driver. Even if you don't usually need a driver, you're under a lot of stress today and it's best for you to be relaxed.
Don't ever think about embellishing or overstating anything. These people are often expert in their jobs and they'll know. If you don't usually use a wheelchair, don't use one today. If your neck or back isn't ordinarily in a brace and your arm isn't usually in a sling, don't try to impress anyone with such gadgets.
Don't present yourself as happy and healthy. You don't ever want to fake it but you do want the examiner to understand your problems. If you're greeted with, "Hello, how are you today?" and you answer with, "I'm great doctor, I feel fine." it's game over.
If you're feeling so good, why are you there?
Do carry copies of any records you believe may be relevant. Do offer them to the examiner. Don't be surprised or offended if the examiner doesn't want them. The examiner is under orders by the Regional Office and will only do what those orders say to do.
As your exam begins, be polite, courteous, respectful and go with the flow.
You may ask for a friend or spouse to accompany you during the exam. The examiner may decline your request. If declined, don't make a fuss...go with the flow. It's not a big deal at this point.
During the exam you should attempt to do as the examiner asks you to do. However, when asked to do tasks that may cause you pain or fatigue you excessively, you may politely decline. For example, "Please flex your arm upwards and place your hand behind your head." "I'm not able to do that doctor, it hurts me too much and causes my arm to be numb."
Should the examiner attempt to do a maneuver for you, you may decline...again, politely and without any rancor. Simply state that there is too much pain.
If asked to walk and it tires you, make it clear that you become fatigued easily.
The bottom line is that you should attempt to comply so that you will get an adequate exam but you aren't required to hurt yourself.
Your exam probably will take from 5 to 25 minutes. You may have additional imaging studies (x-rays) or lab work ordered.
From the moment you arrive until you're far off the campus, don't speak unnecessarily. Keep it in mind that courtesy, a respectful attitude and giving the examiner and staff the benefit of the doubt will be in your favor.
Once your exam is complete, make notes for future use. Who was your examiner? What happened during the exam? What was said? Was the examiner interrupted by telephone calls or staff with questions? How often?
You won't remember these details next week, make written notes now.
About 2 to 3 weeks after the exam, you may then write to the VARO and ask for a copy of the examination results.
You have a right to see that C & P exam.
EXCEPTION...if your C & P was for mental health, you may need your mental health provider to release that to you. The rules protect mental health records...even from the veteran.
Now you have your C & P report in hand.
Do you have an adequate or an inadequate examination?
If favorable to you, you'll accept it as adequate. If unfavorable, you should begin to use your notes to write out why it's unfavorable.
You must provide details. If the regulations require a goniometer for measurement and you know that there was no goniometer used, you have a point of appeal.
So...you have had an inadequate examination...now what?
You may write it up and ask for a new exam right now or you may wait for the decision and use "inadequate exam" as your appeal point.
There isn't any way to say which path an individual should follow. The variables will depend on the other evidence you have and so on.
The key to success in appealing an inadequate exam is that you must be able to define and tell the VA why the exam was inadequate and unfair to you. Simply making the statement isn't enough. As with everything else VA, you must prove every word that you say.
The Ratings Veterans Services Representative (RVSR) is a primary decision maker of the outcome of your claim for VA disability compensation benefits. Once the veteran has filed for the compensation benefit a folder or file is created and data...evidence...is added to the file for consideration by the RVSR.
The condition claimed will likely have some past evidence in the form of a Service Medical Record (SMR) or records of diagnosis and treatment from civilian providers. No matter the amount of evidence you have, it's likely that the Veterans Service Representative (VSR) or the RVSR will request that a VA contractor perform a C & P exam on you. The examiner is usually a physician or registered nurse practitioner or a physician's assistant.
The examiner will not treat you or order any medications. Lab work, x-rays and other such studies may be ordered by the C & P examiner.
The depth of the examination is determined by order of the VSR or the RVSR and is included in the request for examination. The examiner has no authority to go beyond what is requested. Frequently the examiner will not have your medical records or any other history available. That is often the case when the VSR only wishes to determine the degree of function of a joint, as in a knee injury.
In that instance, the examiner won't consider that the history or treatments over time is of any particular importance. She or he will only be looking for the physical effects that are observable and measurable at that moment. The knee may be flexed and rotated so that the examiner can record those motions for comparison to the norm. If there is scarring, crepitus (joint noise), swelling or redness, all of that will be noted in a report.
In other cases, the VSR or RVSR may request that the examiner give the medical record a very thorough review to determine whether or not a condition originated in the time of military service. A claimed back injury may have a reference of a similar injury in the SMR of 30 years prior to the date of the claim. The examiner will be asked for an opinion that will state that the condition of today is or is not likely to have resulted from the injury in the SMR or if it is a condition that is of different origin and likely happened long after the ETS.
This is sometimes referred to as a "nexus statement" and may connect the condition you allege today with an event that happened many years ago.
It's important to know and remember that the examiner does not make the decision of an award of disability compensation. The report that the examiner makes will be considered by the RVSR along with all the other accumulated evidence in the file.
As you ready yourself for your examination, you may take copies of any notes or other documents that you believe are relevant. Then you may offer those to the examiner. Don't be surprised or offended if the examiner refuses to accept or review such paperwork. If their orders don't include that as a part of their assignment, they aren't allowed to accept it and won't be able to do anything with it in any case.
Whether or not you should carry copies of files with you is often the topic of intense debate. Examiners are not generally required to review your records or and files you may have with you. Their assigned task is to provide a snapshot of the moment. How far does that joint move? Do you walk with a normal gait? How large is the scar that troubles you? They only report on the degree of the disability at that moment, not anything about how it may have happened.
However, it often pays to be prepared and take anything with you that you think is relevant. Offer it to your examiner. If it's refused, don't argue with that and move on. If the examiner accepts and uses your paperwork, then you may have advanced your case a bit. Be prepared and go with the flow.
Be cooperative with your examiner. Your goal is to have the examiner write a report that agrees with your own conclusion about your condition. Expressing hostility, complaining about how terrible you're being treated or otherwise acting out your frustrations isn't going to help your cause.
If you're asked to perform maneuvers that cause you pain, for example; actively extending your arm out straight in front of your body, you should politely inform the examiner that the nature and severity of the pain will prevent you from completing that act. If the examiner attempts to assist you with the motion and you are positive that it will cause you pain, you should again politely tell the examiner that you can't allow that due to the harm it may cause you. It isn't the time or place to argue about it, a courteous explanation is all that's needed.
Your examiner may or may not welcome family or friends to accompany you as you're being examined. You do not have absolute rights to be accompanied unless you've established that beforehand with the VA Regional Office that scheduled your exam. If you would like to have your spouse in the room with you, ask the examiner for approval. If the examiner denies your request, don't argue the point. It isn't one you're going to win and it may cause the cancellation of your exam.
As you are examined, pay close attention to what the examiner does during the process. Later, if you don't agree that you had a complete examination of the relevant issues, you'll want to be precise in detailing all you can about your exam.
The examiner should follow guidelines that are established on worksheets. If you're sure that your examiner didn't follow those guidelines and your claim is later denied, an inadequate examination may be a point of appeal.
VA may require a C & P exam at any time. "Where there is a claim for disability compensation or pension but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized." You may not refuse a C & P exam or reexamination. "Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations."
Although you may feel that you have provided more than adequate evidence from private physician sources, VA will usually insist on a C & P exam by one of their own examiners.
Failure to report for Department of Veterans Affairs examination may result in an interruption or even termination of your benefits.
FROM Jim's Mailbag...
Jim;
After reading your paper on C&P exams I have a question. Isn't the examiner required to have your C-file and/or medical records present at the exam? My husband recently had a C&P to connect his heart condition as secondary to his diabetes. We were told a few years ago by one of our VSO's that the examiner is required to have the C-file present. This examiner did not have anything except the paperwork from the regional office requesting the C&P. She told us that her instructions were that she was NOT to review the C-file nor medical records. She was not to do an evaluation nor give her medical opinion. She said that this was the strangest request for a C&P that she had ever seen. We did have letters from 2 VA doctors stating that his heart condition was secondary to his diabetes as well as the medical reports from his attack and the heart cath that was needed. She read the paperwork and stated that she would include it in her report. We also gave her a copy to the Title 38 regulation which shows that the rating my husband should receive is 60% because his condition fits this reg. I printed a copy of the exam worksheet which she did not have.
So I have searched the internet to see if I can find the regulation that shows what is required of the examiner to have at the C&P. Do you have any idea where I can find this? Any help you can give would be greatly appreciated.
Answer:
Excellent question! The VSO who told you that the C-File is required was wrong.
The rater who requests the C & P may have it done either way, with or without the medical records available. Remember, doctors don't make disability decisions, raters make those decisions based on very structured ways of looking at data. The rater requests only the data he needs and the examiner follows those instructions. The rater who makes the disability decision will consider the information from the examiner only as a piece of the pie.
There's a logic to this.
In this example, the rater may ask about flexing the limb, side to side movement, pain on movement and pain to touch. The Vet may be asked to walk on the limb to judge gait or limping and that's the info that's needed. That data is sent to the rater who adjudicates the file and assigns a disability rating.
In the instance you tell me about, I can make a couple of guesses. If your husband is a Vietnam Vet and was diagnosed with Type 2 Diabetes, that is "presumptive" as a service connected condition because of exposure to Agent Orange. He should be Service Connected at 10, 20 or higher %.
Then he develops a heart condition and here's where it can get tricky. If he was diagnosed with Type 2 and is SC for that and then later develops coronary heart disease, it is very likely that the rater has already established the nexus (diabetes=heart condition) in his own mind and is only seeking the degree of disability from the heart condition.
Still with me? It is usually assumed that diabetes precedes heart disease. Service connected diabetes will lead to a service connection for vascular disease. If your husband had a history of heart disease prior to his diagnosis of diabetes and if he had other risk factors like smoking, the VA may find that there is no service connection. If heart disease precedes diabetes, it wasn't caused by it, thus no benefits for the heart condition.
If your husband is not a Vietnam vet but was diagnosed with Diabetes during his service and later developed heart disease, he is likely going to see a SC for the heart problems.
In another example, the rater may be very specific and request that the physician review everything and render an opinion. For example...a Vet injures his back in 1972. He's seen in clinic a couple of times but goes back to duty. He's discharged 3 years later with only one other report of back pain. He goes 10 years without a problem and suddenly his back is just gone. He needs surgery, loses his job and so on...a disaster. He claims it's service connected but VA sees the events in the records as acute and transitory. The examiner may be asked to read it all and comment with expert medical opinion if the original event could have a connection to the current event.
If that examiner says 'yes', there are benefits. If the examiner sees the original injury was to a different part of the back, far removed from today's problems, no service connection is established.
I'll bet that your husband's doctor or examiner focused on issues like shortness of breath, level of activity that can be achieved and so on? If so, she was instructed only to provide the degree of current disability because the rater with that file has already decided it's SC secondary to diabetes.
There are a lot of Questions & Answers about C & P exams posted here.
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TRICARE - Health Care for Service Members and Others
What Do I Need to Know about the Federal Electronic Benefits Rules?
A Servicemembers Guide to Student Loan Interest Rates
Interactive Form and Letter Generators
Random thoughts on C & P
It's hard to say too much about the C & P exam. It's an important step in the claims process and causes a lot of anxiety to most veterans.
If you take the time to study this page, you'll be better prepared than most veterans.
Some of this may be a repeat...because it needs to be. I get a lot of questions about C & P so let's review some basics;
* The C & P exam is only one step in the process. You generally do not win or lose a benefit because of a C & P exam.
* The C & P examiner does not decide your case. He or she makes a report to the Regional Office and that report goes into a file and a Ratings Veterans Service Representative looks at all the evidence to decide your case.
* Yes, you should take copies of pertinent records and reports with you. You should not be surprised if the examiner declines to accept or review them. The examiner is given an order of what to do in an exam. If that order says that he or she is to measure the range of motion in your right knee, that's all that will be done. The history of your right knee isn't important to the order. Don't push it if your papers aren't accepted.
* Be nice. No matter how you feel about your exam, keep it to yourself. These people are human and they are at work and if you mouth off about your dissatisfaction you may not get the break they could have given you.
* Know what to expect. If your knee is being examined, study up on what the range of motion is supposed to be and what yours really is in your own eyes. Use this guide to learn how the C & P examiner works.
