I forgot to tell the examiner some things, now what should I do?
Alabama
CASE PREVIEW
Justices to consider scope of “clear and unmistakable error” review of Veterans Affairs decisions.
Jim Strickland is a Vietnam era Army veteran and nationally recognized expert on VA disability benefits.
Jim writes extensively about VA and Social Security disability benefits.
Jim's Mailbag is a regular column featured at Stateside Legal where veterans, servicemembers, and family members can ask Jim their questions about VA and Social Security disability benefits.
Airborne Hazards and Burn Pit Exposures
Question:
I have sleep apnea but it's not rated as service connected. I served in Desert Storm and have allergies and asthma. I was diagnosed with asthma within a year of separation. I never thought to apply for disability. Now I am unable to get the diagnosis in my medical record. Connected them no recollections. Any suggestions are appreciated.
Jim's Reply:
As luck would have it, your diagnosis of asthma within a year of separation is likely now a presumptive airborne or burn pit disabling condition and you will be due disability benefits after you apply and go through the usual exams. Your timing couldn't be much better. I'm not happy to hear of your health problems but I'm very glad to bring you some positive news for your future.
There has been a lot of recent legislative activity about asthma, rhinitis and sinusitis.
https://www.publichealth.va.gov/exposures/burnpits/
I have no clue what, "Connected them no recollections" means but for anything at all to happen you must initiate a claim for your disability. Let me repeat that...you must formally file a claim for disability benefits for anything to happen. If you don't file the claim, nothing at all will happen for you. Don't worry about records and so on, file the claim now and then VA will help you find records. I recommend that you DIY the claim. I urge you to file soon to set the effective date of your claim.
https://www.vawatchdog.org/how-to-file-a-claim.html
Filing your claim is a task you can do from the comfort of your home or you can get some help from a state or county VSO who knows how to get this done. If you choose to get some help, show them this email so they'll know what's up.
https://www.nacvso.org/
When you file your claim (or someone helps you with the task) be sure to claim asthma as the primary service connected condition and then claim OSA (obstructive sleep apnea and the CPAP) as a secondary condition caused by the asthma. If you don't claim it that way the OSA could be denied...VA has interesting ways of looking at things.
I'll go out on a limb and say you're likely to end up with a fairly robust VA disability rating...up to as much as 100% disabled...if you'll simply open a disability claim. This is very hard to try and quantify without seeing your medical records to determine exactly when you were diagnosed but if there is any formal military record to show that you were becoming ill while on active duty you could be owed a lot of retroactive pay.
If this is a bit overwhelming or if you have other questions and concerns, don't hesitate to get back in touch with me...this is a big deal in your life and we want to get it right! Good luck.
Lab work?
Question:
In the past I was able to have my blood work done at my family doctor's office and I brought a copy of it to my VA yearly exam. My problem is that the VA has a hard time taking my blood without trying several times. My old VA doctor has retired and now my new doctor says that I have to have my blood work done by the VA or I'll lose my all my prescriptions.
Jim's Reply:
There are 2 reasons that VA doctors want you to have your labs done at the VA.
They'll tell you that different labs have different standards that 'values' are measured by. The doctor wants to see what he or she is used to seeing and trusts. This is sort of legit, sort of bogus. Although one lab may have a different range of values for a given test, the report clearly states what those values are and it gives you the normal and abnormal limits. Any competent caregiver can look at any lab's work and figure it out with no problems.
The real reason is that they want to be sure you're drug tested. The VA screens everyone who walks through the doors for substance use and abuse. If you pop positive on a drug test nothing will happen to your benefits but some of your prescriptions may be altered. If you currently take any opioid or other drugs that are prescribed by a mental health provider VA may stop filling those prescriptions for you.
I support VA treating substance abuse as a health problem rather than a criminal matter. I do not support the clandestine approach that VA typically takes with every encounter.
So far as VA having trouble drawing your blood...that isn't VA, that's the person drawing it. It can happen anywhere to anyone...former phlebotomist speaking. I was one who could draw blood from a stone and I occasionally missed. After 2 unsuccessful sticks, politely ask for another phlebotomist.
Don't use that as an excuse to avoid VA. Good luck!
Prostate Cancer?
Question:
I am undergoing radiation therapy for prostate cancer. Is it my responsibility to keep the VA informed about the status of my cancer or will they be in contact with my urologist?
Jim's Reply:
Are you a Vietnam veteran who has a service connected rating for the cancer? If you have filed a claim for a disability rating your VA will stay in touch with you as you go along. The usual process is that the eligible vet is diagnosed, he files a claim and either accepts treatments or watchful waiting. During the process VA will establish future exams for you to keep track of your condition so that a final rating can be adjudicated. Good luck sir.
VA grows locations for C&P contract exams
The Medical Disability Program Office (MDEO) administers the Medical Disability Exam (MDE) contract program. MDEO contracts allow vendors to provide examinations to Veterans and service members who are seeking disability benefits from VA.
Compensation and Pension Examinations VA C & P Exam
The rating
Question:
Hello Jim. You helped me out in the past. I finally heard back from VA on my claim. Question is: I had lung cancer - Claim was based upon my Blue Water Navy exposure to Agent Orange. VA did service-connect my lung cancer and residuals of my partial lung removal (lobectomy) but assigned it a 0 disability rating? I think that has to be in error (have yet to receive their package explaining how they determined 0 rating).
I had C & P exam with results that had my FEV1 score was below 55% predicted which by my calculations equates to 60% rating. One of the other tests showed FEV1/FVC ratio as higher in the 80% range but from what I found online with past appeal decisions the VA seems to be using FEV1 primarily as the Gold standard on how severe the COPD may be. Is this your understanding on this test? The other ratio is less reliable the longer you have had COPD. I had my lung cancer surgery in 2007. Would there be any other reason you can think of why they would service connect my lung cancer/residuals and assign a 0 disability rating? They also service connected my scar due to the surgery but with a 0 rating. They use both tests I have noted above for decisions, but it is stated as an either OR situation. If one test is worse than the other how do they rate? There was a prior case in law that said the Raters prefer to use the FEV1 test as that one is more accurate in determining disability. Are you familiar with that case? Thanks a lot Jim for your help on this.
Jim's Reply:
I can answer everything simply: VA is in error.
You will have to formally appeal every detail. VA seems to make a sport of lowballing agent orange cancer victims in their recovery. "Lose a lobe, no big deal!" I can't count how many times I've seen this.
If you don't formally and timely appeal, nothing at all can or will happen. I'd suggest that you provide a brief statement outlining just what you told me and then be ready to repeat it verbatim at your next C & P exam. Soon after your appeal is recorded you'll be scheduled for a new C & P. If they schedule you with the same examiner, ask for another.
Exactly, precisely how you should be rated will be found in The Schedule. https://www.benefits.va.gov/WARMS/bookc.asp The Schedule takes a bit of studying to understand but soon enough you'll see just what your rating should be. While you don't want to be a know-it-all, at your new C & P exam you can opine on how it should be done.
You should also dive deep into The Clinicians Guide so you can learn what a C & P exam should produce for you. This guide is still the gold standard for the C & P exam.
I understand that this isn't great news and that there's a lot of fuss for you to deal with in the future. It's unfortunate that this is just typical of some of the sloppy work that VBA puts out these days and how poorly agent orange cancer victims are thought of.
I'll emphasize that unless and until you file an appeal, nothing can happen. You have to kick-start the process with a NOD and appeal and you're the only one who can do that.
I'll leave you with a tip. You've lost a big piece of your lung. Many veterans find that will leave them short of breath even as they rest. Their sleep is upset because of shortness of breath.
The veteran who is short of breath while resting may benefit from a home oxygen supply. A CPAP/BIPAP machine can also be prescribed to treat your service connected post cancer treatment syndromes. VA doctors are usually very happy to set you up with the latest oxygen therapy technology to help you rest at night and to help you maintain the usual activities of daily living (ADLs) we all want to enjoy.
Service connected home oxygen therapy because you're SOB will bring with it a 100% rating. Talk with your doctor, get some O2, feel better, file the claim. Good luck sir.
Question:
I am rated at 90% with a PTSD rating at 70%. I have OSA, central apnea and complex apnea. I started experiencing sleep apnea after being discharged from the service. A forensic psychologist who is also on the board of sleep medicine reviewed my records and connected my sleep apnea to my severe PTSD symptoms. He can write me a six page Nexus letter with citations and scientific studies showing how sleep apnea and PTSD relate to one another. He also completed a DBQ stating the same. The VA wants to schedule me for a QTC exam with one of their doctors. I was told to take my sleep studies, TV Q, and Nexus letter in when I go to ensure examiner sees the information. Can you give me any insight that I might not be aware of. Your input would be greatly appreciate it as I will be at the exam this coming week. Thank you in advance.
Jim's Reply:
I think that you're about as well prepared as anyone I've worked with. The best advice I can give you is to do the best you can to present your case to the examiner while recognizing that the examiner may not accept any documents from you and may insist on sticking to a scripted Q & A dialogue.
VA examiners aren't required to accept any documents from you. Documentation supporting your claim is routinely sent in by you or your rep as a part of your file for review by the rater, not the examiner. VA C & P exams are tightly controlled and the examiner is only allowed to focus on exactly what the rater has requested.
Some examiners are more rigid than others and if your examiner isn't open to reviewing your documents, no worries...accept it and don't worry about it.
In the final analysis anything the examiner reports is only a part of the process. Good luck.
Prostate Cancer?
Question:
I was diagnosed with prostate cancer July 2020, in September 2020 my prostate was robotically removed. I was about to apply for disability benefits but realized since the prostate is no longer with me neither is the cancer. I have been left with incontinence and ED, am I a dog barking up the wrong tree?
Jim's Reply:
When an eligible (usually Vietnam) veteran learns he has prostate cancer he should apply for the disability benefit immediately. The diagnosis of prostate cancer (usually a biopsy) is all it takes to trigger the temporary 100% benefit you're awarded for having a service connected cancer when you file the claim.
Many men decline treatment these days in favor of 'watchful waiting' or no treatment at all. The veteran who chooses watchful waiting will retain the 100% temporary rating until he dies or seeks treatment for the cancer.
Once you have the cancer treated it's apparent you're no longer eligible for a 100% cancer rating. Veterans are seen a few months after treatment for a C & P exam to determine what, if any, residual disabling effects are left from the treatments. In the prostate cancer patient the most common residual effects are uncontrolled or barely controlled leakage of urine, increased frequency and urgency of urination, particularly at night, and erectile dysfunction.
Those factors will be used to determine the after-treatment permanent rating. The rating is usually 20%, 40% or 60% depending on how many absorbent pads you require each day.
You should proceed to file a claim for service connected prostate cancer as soon as possible. You're just over the one year mark for retroactive benefits. In other words, if you can explain the delay in filing your claim (COVID delays, etc.) you may (or may not) be eligible for significant back pay. In any case if you get the claim in now you'll be scheduled for a C & P and VA will take it from there.
If the result isn't what you wanted to hear, you can appeal with the help of an accredited veterans law attorney. Good luck sir.
VA claim exam (C&P exam)
After you file your disability benefits claim, VA may ask you to have a claim exam
(also known as a compensation and pension, or C&P, exam).
There is no other part of the Department of Veterans Affairs disability benefits application and adjudication process that is so intimidating as the Compensation & Pension (C & P) exam. Grizzled veterans who have jumped out of airplanes and confronted the enemy in countries around the planet are known to cower in fear of meeting a C & P examiner. The examiner may be a Veterans Health Administration employee or a contractor with a company like LHI and offer varying exams and services. There are other contractors who perform C & P exams and they may operate at a VA facility or out of private offices where they normally practice.
Research The United States Department of Veterans Affairs Board of Veterans Appeals
database of decisions to find a claim similar to yours.
Use what you learn there to fashion your own claim and appeal.
Citation Nr: 1730666
In December 2007, the Veteran underwent a Compensation & Pension Exam
Citation Nr: 20044701
The Board notes the Veteran appealed a reduction from 20 percent to 10 percent
disability rating for his service-connected fibromyalgia.
C & P Exam
Question:
Jim, I had a QTC examination and have been searching for any information on my exam. I can find nothing. Evidently, the VA does not want our veterans to find out what is in their files. Do you have any knowledge as to how to find OUR medical history within QTC or are we not allowed this information? Without the information, it makes it difficult to reply to the VA without knowledge of what is in our exam reports. That's like going to war with no ammo. The vets' questions and your answers have helped me quite a bit. Thank you.
Jim's Reply:
A Compensation and Pension examination is not entered into your medical record as it is not a health care event. You do not establish a doctor-patient relationship and no treatment, prognosis or therapy is offered. This document is not a part of your medical history, rather it is an administrative tool used to determine a very narrowly focused question or questions about your disability claim. The C & P exam is a part of your electronic VBMS claim that's in process and you do not have a right of access to that.
There is nothing for you to reply to. Until your claim is completed and you have the decision in hand, there is no reason for you to have a copy of the C & P exam. If you were to get a copy and see something you disagreed with and then fired off a letter about it, your claim would stop processing and return to start.
Then you'd be questioned as to whether or not you are withdrawing your claim (a common assumption when the vet interrupts the process) and then eventually you'd be subjected to another C & P exam. You may also be flagged as a problem.
You could easily add a year or more to the time it takes to adjudicate your claim and gain nothing at all or even lose the battle, have your claim closed in error and have to start all over. The fact is that the C & P exam isn't the only factor that weighs in on a decision. The rater will use the information in the report along with your history and the decision will be made using all the information to come to a fair conclusion.
VA disability claims are a process. If you interrupt the process before it completes, you can cause a lot of delays and damage to your claim. Patience is a virtue! Good luck.
LHI assists the U.S. Department of Veterans Affairs in providing quality compensation and
pension examinations to Veterans seeking benefits for service-connected health issues
Service Treatment Records?
Question:
After years suffering with PTSD with sleep apnea without anything being in my STR records for fear of ridicule. How can I get service connection?
Jim's Reply:
Service connection of a disability requires that the veteran claimant provide some basis for the claim. You tell me that there is nothing in your STR about PTSD or OSA and that makes your claim more challenging.
However, many of us who didn't avail ourselves of medical care while we were active duty will find that within the first year we're out we have all kinds of evidence generated at VA exams, private care doctors and so on. If you have sought health care in the first year after your exit from active duty, that is seen as a solid connection to your active service.
The more of this kind of documentation you have the better. If you're past the first year after discharge, your task becomes more difficult as time passes. If you've waited a decade to seek compensation for service connected conditions and you have zero evidence of why VA should do that, your challenge becomes near impossible.
I know of mental health claims for PTSD based on sexual assault that was never reported and those claims were won after clinical psychologists agreed that symptoms were appropriate for an event having happened but those are few and far between.
If you believe that you have enough after service evidence of treatment to support your claim you should proceed to file with what you've got. If and when you're denied you can retain a veterans law attorney to help you appeal and you won't have any out of pocket expenses. Good luck.
The examiner may be a physician or a physician assistant or a registered nurse practitioner or you may be offered a hearing exam by an audiologist and so on. Most exams are perfunctory and often confusing to the veteran. Your key to success is simple; Speak the truth about your symptoms without embellishing symptoms but not minimizing anything. Make brief notes to yourself of anything you want to say. If you don't have a cheat sheet, you'll forget...you know you will. Don't ever display anger or be a smartass. There is nothing you can do to make this any better but to maintain your cool.
Separating Fact From Fiction
The Must Do & Must Not Do of the C & P Exam
* The examiner does not make the decision about your claim.
* You may take records with you but the examiner may refuse them.
* The examiner won't treat you or prescribe medicines.
* NEVER try to fake any symptom. If you aren't prescribed a neck brace, don't wear one.
* The examiner will only perform the task assigned by an order of the regional office.
* You do not have to allow the examiner to cause you pain or discomfort during the exam by manipulating joints, etc.
* The examiner does not have any insight about how your claim will be decided. Don't ask.
* You may request that a family member or friend join you during the exam. The examiner may agree or refuse your request.
* DO NOT attempt to secretly record any part of the exam.
* DO make notes for yourself before you go. This is the only way you'll be sure to tell the examiner all the details you want to share.
* DO NOT over-exert yourself trying to please the examiner. This exam is about your worst symptoms, not the best.
* DO be courteous at all times. Don't complain to the examiner about all the indignities you've suffered. Focus on the reason you're there.
* DO use your common sense. This exam probably won't make or break the decision about your claim but it can help.
38 CFR Book C, Schedule for Rating Disabilities tells you the standards you must meet to be awarded a % rating for
a given condition. Below we've selected
a few of the most frequently
needed sections of The Schedule
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