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The Independent Medical Examination
How important is a good Independent Medical Exam?
Read below an excerpt
from a recent BVA hearing. It is clear that an Independent Medical
Opinion carried significant weight for the veteran.
Board of Veterans Appeals Docket Number 08-26 895
“The Board finds the private medical opinion and conclusions of Dr.
J.W.B. to be highly probative as they are definitive, based upon an
interview and clinical assessment of the Veteran, a review of many
service and post-service medical records, and are supported by a medical
rationale. Accordingly, the opinion is found to carry significant
probative weight. Among the factors for assessing probative value of a
medical opinion are the physician’s access to the file and the
thoroughness and detail of the opinion.”
Judge Kramer
If there is any doubt of your claim based on medical opinion, don't delay. Get the IME.
Learn more about what the VA wants to see in a medical exam report.
Click here to read about C & P exam worksheets.
Independent Medical Examinations & Independent Medical Opinions
When you allege that you suffered an illness or an injury while on active duty military service and that has caused or contributed to a disabling condition today, and then make a claim for compensation, you must provide evidence to support your claim.
In some simple claims the evidence is readily available and it will be simple to evaluate.
The VA will provide evidence of the injury or illness (called a "condition" by VA) and the seriousness of that condition by demanding that you are subjected to a Compensation and Pension (C & P) medical examination. The C & P exam will usually be conducted by VA contracted health care professionals who have varying levels of expertise in the medical discipline that covers your condition.
In many cases the veteran will not agree with the results of this C & P examination. The veteran may also find the he or she may need a "nexus letter" that will provide a degree of expert medical opinion to link or connect an active duty event to a disabling condition of today.
The veteran is often told to seek an Independent Medical Examination (IME) or opinion from a neutral, unbiased, expert physician. In many cases the veteran doesn't need a complete physical examination but may need an expert physician to review existing records to offer an opinion of causality.
When the veteran finds that they need such medical expertise it's often a challenge to find such a service. Most practicing physicians aren't expert in the proper methods of conducting disability examinations and their practice isn't set up to work with patients who only seek nexus letters or records reviews.
The veteran (or advocate) who seeks an IME or records review or nexus letter must be sure that the physician is well grounded and experienced in the language used in disability examinations.
The medical doctor/examiner who will produce an opinion or any record to be used in a VA disability adjudication should be familiar with the C & P Service Clinicians Guide, the Schedule For Rating Disabilities and the Index To Disability Worksheets.
The IME examiner should understand the importance of establishing a cause and effect relationship between an event in the military and a disabling condition today. When establishing and explaining a nexus or causal relationship, such verbiage as follows here may make or break a case for you.
1. “is due to” (100% sure)
2. “more likely than not” (greater than 50%)
3. “at least as likely as not” (equal to or greater than 50%)
4. “not at least as likely as not” (less than 50%)
5. “is not due to” (0%)
Don't forget, you may need a nexus letter and the IME doctor can provide that for you.
Click here to learn about nexus letters.
The veteran or advocate who wants to obtain an IME, records review or independent nexus letter must understand some of the rules that these examinations are subject to.
The IME physician will establish a price after he or she has evaluated the amount of time involved in providing you a given service. Payment is to be made in advance of any work be done. The IME physician generally does not accept or bill for any insurance and if you believe that you have any such coverage, you must pay the examiner first and then work toward reimbursement for yourself.
The IME physician is a neutral party. You are asking the physician to provide you with an honest opinion based on the evidence you present. The IME physician is not obligated to agree with you and if such a disagreement should occur, there is no refund of any fees to be made.
There are no treatments provided during an IME. The IME doctor will not write prescriptions for you nor see you for future appointments for medical care.
You must provide legible and well organized copies of all pertinent records to the examining physician prior to any examination if you are having such. The IME physician is not responsible for retrieving any records that may support your case.
You should agree in writing exactly what work product you are paying for as you enter into the agreement. If you need a physical examination with a report about your broken hip, that's what your agreement should state.
You should ask and the doctor should advise you as to when you may expect your report. This should be written as a part of your agreement.
In the past I've had my own Independent Medical Examination and records review. I also asked the IME examiner for a nexus letter. In my opinion this was an invaluable step to gaining the benefits that I'd applied for.
I was given the name of a physician who practices in Atlanta, Georgia and my exam was scheduled and completed in a timely fashion.
For your reference I'll include his data and an abbreviated curriculum vitae here.
Jerry W. Bush, M.D.
686 South 8th Street
Griffin, GA 30224
Email: <jer5731@aol.com>
Telephone: 678-603-9941
Fax: 770-233-6229
Education
M.D. Degree University of Alabama School of Medicine 1983
B.S. Pharmacy Auburn University 1979
B.S. Law Saratoga University (Correspondence) 2003
Certifications
Board Certified Internal Medicine
Certified Medical Review Officer 1999 (Recertified 2004)
Certified Independent Medical Examiner 2000
Certified Medical Expert in Pharmacology/Toxicology (State and Federal Courts)
Areas of Practice
Veterans Federal Tort Claims Act Medical Consultations.
Expert Medical Consultant
Independent Medical Examinations
Veterans Disability Consultations
Dr. Bush has Provided Expert Witness Testimony in Cases in Many States and Internationally
More on how a good IME report should look.
VA has its own culture. It is deeply ingrained and hasn't changed much in years. There are phrases that will trigger positive responses and phrases that may be meaningless. In IME reports it is more important than ever that the physician would remember to use these phrases appropriately.
For example; It is important that early into the reporting you state that "I have reviewed the medical reports and military records that have been made available to me."
While this is no longer a requirement to say that, it was for so long that some of the 'raters', those individuals charged with making the final decision, will still want to read that phrase.
The physicians Curriculum Vitae (CV) is appropriate as an attachment, not as a part of the report itself.
A cover letter of introduction as a front page of the report, on your office letterhead, gives a professional appearance to the package.
It should be brief; "Date, to whom it may concern, I am Dr. Marcus Welby. I have been requested to perform (IME, IMO, report, nexus letter, etc.) on veteran Mr. John Doe. Following this cover letter you will find that report as well as attached a copy of my curriculum vitae and any other relevant documents. Signed, etc."
Your CV and the cover can be "boilerplate" and that may save you some production time. I know physicians are very busy but timely reporting back to your veteran/attorney client is extremely important.
Your reporting should follow a distinct pattern for VA. They strongly prefer stepwise reports.
There should be a COVER LETTER and then the INTRODUCTION. "I have reviewed, etc."
Then the FINDINGS; "Upon review I have noted that the condition originated DATE and EVENT. The sequence of events for treatment are SURGERY DATE TREATMENT DATE etc." Then the current condition of the patient either from your own exam or from data you glean from records; "Veteran Mr. Doe is currently unable to ACTIVITIES OF DAILY LIVING etc." "PAIN. etc."
This is where you convince the decision maker that you know this patient's condition well. These are your expert clinical observations and nothing else.
You must conclude CONCLUSION with a strong finish. This has been stressed to me often in my meetings with experts. I'm told that the CONCLUSION is more important than ever and I was shown examples of cases that fail because the IME physician reporter doesn't use the appropriate conclusive verbiage.
We hope that the IME physician is able to conclude with a statement like, "It is my opinion that it is more likely than not that the veterans current condition of DIAGNOSED CONDITION is a result of the EVENT OR EVENTS that are documented to have occurred on or about DATES/CIRCUMSTANCES.
As you know I caution veterans and lawyers that I recommend IME services not only for the physician's medical expertise but also for honesty and that the IME physician is clearly a neutral observer.
I caution all veteran clients and their advocates that the IME physician may not be able to agree with your conclusions. The IME physician is not paid to tell you what you want to hear to win your case. The IME physician is neutral and will only report what he/she observes in the totality of the exam.
If you haven't provided all the records or if you do not have the condition you claim, that is what the IME physician will conclude and report.
If that is the case, I'm told that it's then important that the IME doctor conclude, as heor she is able to, with verbiage like "It is at least as likely as not" and so on.
You'll recall that in the C & P Examiners Guide the phrasing is said to be;
1. “is due to” (100% sure)
2. “more likely than not” (greater than 50%)
3. “at least as likely as not” (equal to or greater than 50%)
4. “not at least as likely as not” (less than 50%)
5. “is not due to” (0%)
(This may be a good time for you to review the Clinicians Guide...VA relies heavily on the words used there)
It's also important that the physician does not interject an opinion as to any rating the veteran may be eligible for.
The examiners guide addresses that as;
"The examining clinician must avoid expressing an opinion regarding the merits of any claim or the percentage evaluation that should be assigned for a disability. An opinion should not be given to the claimant regarding insurability, degree of disability, incurrence or aggravation by military service, or the character and sufficiency of treatment during military service or subsequently thereto. When asked about employability, the examiner should not state that an individual veteran is or is not individually unemployable, but should describe in full the effects of the conditions being examined on functioning, and how that relates to employment."
Only the veterans representative (lawyer, VSO, etc.) should ever opine on the eligibility of the veteran for benefits and the physician must stay on course with medical facts.
Those "Do and Don't Do" lists in the examiners guide must be adhered to carefully.
1. Definite diagnosis: Give a definite diagnosis or use the previously established diagnosis.
2. No Diagnosis found: If no diagnosis is found for any claimed condition, state this. For example, state “Lower back pain: There is insufficient evidence to warrant a diagnosis of an acute or chronic low back disorder or its residuals.” Explain in detail the reason why a diagnosis cannot be established for the condition claimed.
3. Diagnosis of Unknown Etiology: If a disability does exist but a definite diagnostic name cannot be given to it, state this. For example, state “Muscle strain of unknown etiology”. (See Gulf War Examination Worksheet concerning “undiagnosed illnesses” in Gulf War veterans.)
4. Support each diagnosis: Support each diagnosis with subjective (history) and objective (physical) data.
5. Effect on daily activities and work: Comment on the disability’s effect on the veteran’s daily activities and his ability to work.
1.13 Diagnoses don’ts (also see diagnoses do’s)
1. Non-committal diagnosis: Don’t use phrases such as “differential diagnosis” or “rule out”.
2. Symptoms or signs: Don’t use symptoms (pain) or signs (tenderness) for a diagnosis if a more exact diagnosis is known. If a disease appears to exist but an etiology cannot be determined, you may say, for example, “fatigue of unknown etiology”.
3. Opinion for further studies, evaluations, or laboratory tests: If further studies, evaluations or tests are necessary, perform them before making a final decision. Otherwise the examination is incomplete and will be returned as inadequate.
4. Change the previously established service connected diagnoses: Don’t change previously established diagnoses, unless you carefully explain the discrepancy and adequately substantiate the new diagnoses.
The observations of individuals who are not medical experts will not carry much weight. We often use what we refer to as "Buddy Letters", statements in support of claims that are from our parents, pastors, friends or spouses.
The VA discounts many of these reports with,"Well, what are those people going to say? A spouse or parent will testify to what they think should be said even though they may have no expertise in the condition nor did they witness the causative event."
The decision maker will not appreciate inclusions of VA regulations copied from the Internet or other sources. One rater told me that this even annoys them to a point that they may discount other submissions because the report has become too bulky. The VA rater already has all the law at his desk and wants no reminders.
The IME physician should report medical findings, nothing more. Reporting pertinent law is the task of the attorney.
Supporting scientific medical documentation of the opinion may be valuable. A recent article from a science or medical journal that may not be widely available is often given considerable weight.
Make the IME reports compact and streamlined will help the doctor with timeliness. If the doctor uses a template for a cover letter and a pre-printed CV that will cut out some effort. Using a structured outline and not including any legal or regulatory data will also speed things along.
IME reports should be reduced to strictly focused reports of what the physician observes and then a strong, definitive conclusion.
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