Musculoskeletal VA Disability Claims – Sharp v Shulkin May Make Higher Disability Percentage Ratings Possible

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USCAVC Sharp v. Shulkin No. 16-1385 Mr. Sharp, an Army Korean War veteran who suffers from numerous musculoskeletal injuries, argued that Veterans Affairs medical examinations he received were inadequate because the examiner failed to “ascertain adequate information — i.e., frequency, duration, characteristics, severity, or functional loss — regarding his flares by alternative means,” according to court documents. Mr. Sharp contended that the 10% disability rating he received for his injuries was therefore insufficient because his “September 2015 evaluation was inadequate for evaluation purposes and the Board’s finding to the contrary was clearly erroneous.” In September 2017, the claims court agreed.

The Sharp case clarifies the responsibilities of the C and P examiners and the BVA in giving opinions on pain flare-ups in musculoskeletal disabilities claims. The court ruled the current system was inadequate.

Read the full article below:
https://taskandpurpose.com/vets-may-now-able-get-higher-disability-ratings-service-connected-injuries/

Title 38: Pensions, Bonuses, and Veterans’ Relief PART 4—SCHEDULE FOR RATING DISABILITIES  Subpart B—Disability Ratings

The Musculoskeletal System
§4.40   Functional loss.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.
§4.41   History of injury.
In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. The duration of the initial, and any subsequent, period of total incapacity, especially periods reflecting delayed union, inflammation, swelling, drainage, or operative intervention, should be given close attention. This consideration, or the absence of clear cut evidence of injury, may result in classifying the disability as not of traumatic origin, either reflecting congenital or developmental etiology, or the effects of healed disease.
§4.42   Complete medical examination of injury cases.
The importance of complete medical examination of injury cases at the time of first medical examination by the Department of Veterans Affairs cannot be overemphasized. When possible, this should include complete neurological and psychiatric examination, and other special examinations indicated by the physical condition, in addition to the required general and orthopedic or surgical examinations. When complete examinations are not conducted covering all systems of the body affected by disease or injury, it is impossible to visualize the nature and extent of the service connected disability. Incomplete examination is a common cause of incorrect diagnosis, especially in the neurological and psychiatric fields, and frequently leaves the Department of Veterans Affairs in doubt as to the presence or absence of disabling conditions at the time of the examination.

eCFR

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Back and Cervical Pain – Bulging Disc and the C and P Exam ROM Test – Hadit.com For Veterans Who’ve Had it With The VA

I have a C&P coming up in October for Neck/Back pains. While in Iraq in 2004, I fell off of a 916 semi-truck and have buddy statements to verify this.


 

Read more about Musculoskeletal VA Disability Claims

site:hadit.com Musculoskeletal + “flare up” – Google Search

Jun 11, 2017 … If the examination is not being conducted during a flare- up: [ ] The examination is medically consistent with ….. wears brace when he leaves the …

Common Mistakes – Attending the C&P Exams by Hill and Ponton

Matthew Hill: And today we’d like to talk to you a little bit about … We’re talking about a series on big mistakes vets make, and problems that are presented in their claim, that interfere with them getting the benefits they deserve. Today, we just want to talk briefly on C&P exams, comp and pen exams, the compensation and pension exam.
Essentially, these exams are issued by the VA. The VA has a duty to assist you to win your claim. If they feel that what’s missing, to prevent benefits, are either medical opinion about the disease being connected to service, or medical opinion about the rating, the severity of the disability, then they’re generally going to send you to C&P exam. We only see cases where there’s already been a denial, but the biggest –

Carol Ponton: So usually there’s been a compensation and pension exam.

Matthew Hill: I mean, that usually is the biggest reason for denial, right Carol?

Carol Ponton: Exactly. So what is a compensation and pension exam? The person that’s deciding your case looks at the evidence and says,

  • Are we’re missing something?
  • Are we missing the service connected problem?
  • are we missing the diagnosis?
  • how bad your condition is?

They will set up a compensation and pension exam, to have you evaluated. Now, they are going to say, on their notes, exactly what they’re looking for. You don’t know, but if you call the people that have set this up, they will tell you it’s a PTSD exam, if that’s what you’re claiming, that it’s an exam for your back, maybe they’re going to do some testing on you, blood work, to see if you have diabetes. They will let you know, so you need to be prepared for that exam.

If you’re going in for a PTSD, you should get … There’s a form that the VA has, and it lists problems that anybody who has PTSD has, nightmares, flashbacks, lack of trust, anger, and if you don’t have a problem in each one of those little categories, you don’t have PTSD, according to the VA, so you really need to figure out what are they looking for, because it’s not that our veterans don’t have it, it’s they usually talk about what’s bothering the most that day.

They may have lots of nightmares, but they have an anger problem, and on the way to the VA exam, they got in a fight with somebody that was driving near them. You need to make sure what are they looking for, so that you give them all of those things.

[embedyt] https://www.youtube.com/watch?v=ZQBI9MM2T7o&vol=0&width=300&height=169&cc_load_policy=1[/embedyt]

Source: Hill & Ponton, P.A. Checkout their blog for more great information.

Matthew Hill: I would say on that, if you know the exam you’re going in for, you get a buddy statement or two, people who live with you, or close friends, to just write what they observe in you. Not how great a guy you are and all this stuff, but, “Today, I see Fred. I see him wincing when he bends over. He has to sit down after walking up a flight of stairs-“

Carol Ponton: “I help him with his yard because he can’t do it anymore.”

Matthew Hill: And those are things you want to take with you. We always recommend that our veterans take somebody with them, a witness, a wife, or a child, or somebody. The majority of the time, they’re not going to let, as in 90% of the time they’re not going to let that person back into the exam room with them. However, if you have these buddy statements, and you can at least hand them to the person, I’d keep copies for myself but you have these buddy statements that you hand to them, the doctor should review that, hopefully, and have and understanding of how bad it is, but then also note that in their review.

Carol Ponton: But to be safe, you should turn that into the VA separately.

Matthew Hill: Yeah.

Carol Ponton: We also find that the VA will often give you a form to fill out, and you need to make sure that form is complete. If they’re talking about your back, talk about the pain going down your leg, or the fact that you’re incontinent, or the fact that that makes you depressed. This is your chance to put everything down, because often, veterans will go in, and they’re there 10 minutes or less, and then they end up seeing this huge compensation and pension report, goes on for pages, and they go, “Where did they get all this information?”

Matthew Hill: It makes it look like the doctor really sat down and took time with you, when you know he didn’t.

Carol Ponton: But a lot of times they just copied it off whatever the form was that you handed in, so if that’s the case, you want to make sure this form is complete. The other thing that I tell veterans is this is the one time somebody, a doctor from the VA, is going to see you, so if you’re going in, and most of the time, you’re at home in your pajamas, and you don’t shave, and you don’t get your hair cut, don’t dress up for this person. They want to know how are you really functioning in life, and if that’s the way you are-

Matthew Hill: It’s your chance to show them what your day-to-day existence is, and you don’t need to put makeup on that.

Carol Ponton: And that’s a big mistake that I see. The veterans, maybe the spouse, maybe the person that lives with them says, “Oh, you can’t go looking like that. You need to take a shower. You need to do this.” Well if you don’t usually do it, don’t do it. Let them see how this condition has affected you.

Matthew Hill: Well, this is our blog on C&P exams, and their importance, and how we see they can be messed up and veterans not get the benefits they deserve due to what happened there. Thank you for tuning in, and again, we have several other big mistakes we see that you should be able to find on this channel.
Related:

Preparing for Your C and P Exam

The exams should be to what you’re asking for, what kind of compensation. If it’s the first claim to say that something is related to service, like a back claim saying, “I believe that my back was injured in service and that’s why I currently have this disability,” the question isn’t really so much the extent of this disability now; the question is whether it’s related or not.
But most of the C&P exams we see are for the rating to say, “Is this the proper rating?” The veteran goes and, as Carol said, hopefully they’ve called to see what kind it is, but we feel like there is more than just calling that should take place. Source: Hill and Ponton
[embedyt] https://www.youtube.com/watch?v=Z5rWSoEooXU&width=300&height=168&modestbranding=1[/embedyt]
Transcript:
Matthew:  Hello, and welcome to the Hill & Ponton Veterans Video Blog. I’m Matthew Hill.
Carol:  I’m Carol Ponton.
Matthew:  Today we’d like to talk to you about C&P exams – more specifically, how you as a veteran should prepare for them.
When you get a notice in the mail for a C&P exam, it’s important to understand what it’s for. Unfortunately, a lot of times, they don’t send you that information.
Carol:  But if you call the number, they will tell you exactly what it’s for and you should do that. That’s the number on the notice that you got for the exam.
Matthew:  The exams should be to what you’re asking for, what kind of compensation. If it’s the first claim to say that something is related to service, like a back claim saying, “I believe that my back was injured in service and that’s why I currently have this disability,” the question isn’t really so much the extent of this disability now; the question is whether it’s related or not.
But most of the C&P exams we see are for the rating to say, “Is this the proper rating?” The veteran goes and, as Carol said, hopefully they’ve called to see what kind it is, but we feel like there is more than just calling that should take place.
Carol:  You need to know how the VA rates people. What’s the point of the exam? What are they looking for?
For instance, backs. If you have horrible, limiting back pain, you wouldn’t think that your entire rating is based on how far you can bend before the pain stops you, but that’s it.
A lot of people go in and they’re talking about the pain and how it devastates them, but they bend too far and they get a zero or a 10%. You need to know what the VA is looking for.
That’s just backs.
They actually have what’s called DBQs. Those are a guide, an outline that the C&P examiners use when they’re figuring out how to evaluate you for your C&P exam.
Matthew:  Yeah. DBQ is Disability Benefits Questionnaire. I will link to that in the blog notes on this.
Essentially, it is exactly how they rate you. There are a bunch of boxes that the examiner can check. It’s important that you have an opportunity to look over that before you go just so you can look and say, “Well, what of these applies to me.”
Clearly, all of it will not apply to you, and there might be some that do apply that you just don’t know because it’s a medical term. But the more knowledge you have before going in, the better.
Carol:  Let’s go to the back again. Usually, most people can’t get more than a 40% rating for their back. Unless your back is fixed in one place so it really doesn’t move, that’s all you’re going to get.
Where you get the additional ratings is in the problems that the back causes. For instance, how about radiculopathy where you have that pain, that electrical feeling that goes down your leg, or you have numbness in your feet? What if you become incontinent?
All of these things relate to the back but if you don’t bring them up, don’t wait for them to mention them. It’s important that you bring this out.
Matthew:  That’s a really good point. This isn’t like a treating doctor’s visit. When they ask you how you’re doing, you don’t say, “Oh, I’m okay,” or, “I’m doing well today.” That’s going to be written down and, unfortunately, used against you.
When you go in there, you need to be ready to offer as much detail as possible. As Carol said, you don’t wait for the question. You say, “Oh, and we didn’t talk about this: my incontinence related to my back,” or whatever it is. You need to go in.
Carol:  “The fact that I fall because my legs give way. That electrical shock is very strong, and it really impairs me.”
Matthew:  It’s just things you need to be aware of going in there. Now, a couple of other things with C&P exams: we always recommend that they take somebody with them. A lot of times, our veterans will ask if we as their attorneys can go, and that would just be a nightmare. The VA would throw us out of the building.
We ask the veterans to take a spouse, take a good friend just to be there to watch. Wives are the best. When a veteran will say, “Oh. My pain is at a six.” The wife will say, “You haven’t gotten out of bed in eight days.” Make sure that the truth is known.
Also, they’re there to make sure that if something doesn’t go as it should at the C&P exam, there are two sets of eyes to talk to that instead of just the veteran. A lot of times, unfortunately, we see that the VA won’t even allow the buddy or the wife into the exam room. I still think it’s important to go.
Carol:  To be able to say he was only in there five minutes. The reason that supposedly you can’t bring somebody in is privacy. Well, it’s your privacy, and you have the right to waive it.
But let me tell you what I saw in a Board of Veterans Appeal decision the other day that was really disheartening. This client had gone to the C&P exam, spent five minutes, did not do any of the measuring about how far they could bend and wrote a 4138 where he swore to what happened. He did that. His wife said how little time they spent with him.
The VBA totally disregarded that. They said that we’re going to consider the regularity that this doctor would have done exactly what he needed to do. It didn’t happen that way. That really hurt the veteran’s case.
The more information that you can give to the VA about what’s happening, and if you feel that the exam wasn’t fair, tell the medical facility there. They need to know. They’re paying these doctors. They need to know did this doctor really evaluate you? That’s where you can get a change.
Matthew:  To wrap up, just remember that when you go to these exams, it’s not a friendly affair. You need to come prepared with information about how your pain and how your problem is affecting you. You need to try and understand how they’re going to rate that, and if you can bring people with you, that’s the way to go.

10 Tips to Help You Keep the VA C and P Exam in Perspective

C and P Exam Definition Source: CCK-Law.com

A C and P exam, is a medical examination of a veteran’s disability, performed by a VA healthcare provider, or a VA contracted provider.  VA uses C&P exams to gather more evidence on a veteran’s claimed condition before issuing a decision and assigning a rating.  Most commonly, C&P exams are used to (1) confirm or deny service connection, and/or (2) establish the severity of a veteran’s disability.  Before the exam, the examiner will review your entire claims file, which contains previously submitted evidence and medical treatment records.  The exam itself usually only lasts about 15-20 minutes but can range anywhere from 5 minutes to several hours.

During the C&P exam, the examiners will ask questions about your disability and how it affects aspects of daily functioning.  VA examiners might complete a Disability Benefits Questionnaire (DBQ) as well.  Each DBQ is drafted to correspond with a specific condition and is formatted for examiners to “check a box” next to descriptions that most accurately depict the disability in question.  After the exam, the examiner will write up a report that includes a review of the exam’s findings, any clinical test results, and any medical literature used by the examiner.  The C&P exam is then added to your claims file as part of the evidence VA adjudicators will use to make a decision.

What is that Perspective?

Honestly, it comes down to recognizing that the purpose of the VA C and P Exam is NOT to convince the doctor that your injury is service-connected but to let them conduct their exam and draw their conclusion. Ultimately, your current disability is or is not related to military service. Regardless of what the doctor says or what the VA Rater says, the limitations or symptoms are either related or not to your time in service.” Chris Attig Veterans Law Blog

A doctor’s opinion can’t change what is or is not. It’s just another piece in the puzzle of proof. And the C&P Exam is just another piece of that puzzle. It is not the only piece – but if we view it as such, we often make our claims harder than they should be. And we certainly make them more stressful.

Reprinted here with permission from Veterans Law Blog

1. Every C&P Exam has 2 Goals.

The first goal is to have the doctor confirm that your injury, disability, or

limitations are related to your military service – to prove the Nexus Pillar – and/or

to establish the degree you are disabled – the Impairment Pillar

Caluza Triangle

The second goal is to draw out the “evidentiary gap” in your claim through a C&P exam. The evidentiary gap is the difference between what is IN the record and how the VA SEES what is in the record. If you are denied service connection, it is almost always because of an evidentiary gap. Rather than throwing a haystack at the RO and then yelling at the VA for not finding the needle – let the Examiner tell you what is missing by reading their opinion.

The key is NOT to provide excessive amounts of information in your C&P exam – keep your answers short and “make” the doctor get into your file to review the evidence. They tell you what is missing by what they focus hardest on. It is THEIR report which shows the evidentiary gap – not your statements in the C&P. This brings us to the next tip….

2. Answer only the questions the VA C and P examiner asks.

If the doc asks, “How are you doing,” and you throw the entire history of your claim at her over the next 15 minutes, what happens? She zones out. She doesn’t hear what you are saying and may find it hard to care about it. I get emails daily – some are 8-9 pages of micro-detailed histories of a VA Claim. It’s hard to read them. It’s hard to understand them. It’s hard to pick up the phone and call that person because I know I will get more facts I don’t need. Listen, I’m really good at doing this work, and while there are some real shit-bird doctors out there, there are some really good ones. They know how to call out the information they need to get the facts to understand the situation. So just answer the question you are asked – not the question you want to answer. But when you do answer the question, follow Tip #3

3. Keep it Simple and Basic.

Limit what you say to symptoms and limitations or nexus to brief statements. If you can’t answer the question “Why is your injury related to military service” in under 20 seconds, you are talking too much. Here’s a great example of how you might respond to a VA C&P Examiner’s question about nexus: “You should defer to my Claims File as that has my complete position on why my injury is related to my service….but, very generally…..  Because of the in-service injury to my right knee, I began to overcompensate. Now my left knee needs replacement.” or “I was raped in basic training, and during the rape, my attacker broke my jaw. I now cannot eat or swallow properly.” or “I was diagnosed with prostate cancer while in service.” The more you talk, the more ways an examiner has to deny your claim without ever looking at the file. The less you talk – the more direct and to the point you are – the more they have to read the file.

4. Be Polite and Courteous – and Know What the Examiner has to Deal With.

I’ve said it before – there are some real shit-bird docs in the VA system. There’s the examiner that comes into the room – grumbly and angry – and tells you that you have five minutes to tell your story. There’s the examiner that will hear something different than what you said – and twist your words to fit their medical theory. And there are the examiners that just plain don’t get it – they may not have the medical training needed to draw the conclusion they are being asked to draw. Even if you are a VA C&P Examiner reading this, I think you would agree that you can think of a colleague who is not doing what they are required to do.

Smile. Be pleasant and courteous. Know that even if this VA C and P Examiner concludes that there is no nexus between your military service and your condition, it will not be the end of the world.

Smile. Be pleasant and courteous. Know that even if this doctor concludes that there is no nexus between your military service and your condition, it will not be the end of the world. There are ways to “correct” a bad C&P Exam

Your C&P Examiner has a short time to talk to you. They will have 15-20 (or more) exams daily. Each exam will be for a Veteran with at least 750+ pages of records to comb through. These examiners have something in common – they work in an overburdened system that overloads them with information and gives them minutes to sort through it. Sometimes they will have to draw conclusions about complex conditions they are not trained to handle. And a good bit of the time, they will make mistakes. They will get it wrong.

It’s not the end of the world if they do. But what is essential – in the grand scheme of fixing this system – is that we treat every C&P Examiner with a modicum of courtesy and respect. Say hello. Smile. Be pleasant and courteous. Know that even if this doctor concludes that there is no nexus between your military service and your condition, it will not be the end of the world. There are ways to “correct” a bad C&P Exam. There are other types of opinions that you can use – like the Disability Benefits Questionnaire (DBQ).

Get their name, and talk to them about their background – and after the exam, write down thorough notes about what happened – good and bad – in the exam.  What did they test? What did they measure? What body parts did the doctor look at – and not look at.

Suppose you are going to legally attack a bad C&P Exam. In that case, you will need this information to challenge the methodology, measurements, and conclusions. And you won’t be able to do this if you start the exam on a sour note. So – above all – be courteous, civil, and concise.

5. Don’t Act Like a “Professional Claimant”. 

C&P Examiners do exams – dozens a day – every day for weeks on end. When you are exposed to this many Veterans, you start seeing patterns. Especially if you are a doctor trained to identify and analyze patterns of symptoms and limitations in a medical condition.

  • Listen, C&P Examiners can spot the Professional Claimant a mile away. And if they see you as a Professional Claimant, it will taint the exam and the outcome of the exam.
  • So resist using legalistic phrases, theories, and concepts.
  • Talk like a human being – not a lawyer or a VSO.
  • Tell the doctor about your symptoms. Your limitations.

Have a concise statement of why you think your disability and service are related. (Take a look at the first post in this series to get an example of how to put together such a concise statement).

And whatever you do, don’t go off on rants about the VA Process, complex legal theories, or past errors.

The system is screwed up – we all get that. But one VA C&P Examiner isn’t going to fix the whole system or remedy every past error in your case.

So keep it simple and basic: talk only about the symptoms and limitations of your disability, and have a one-sentence statement about nexus to tell the doctor when you are asked.

6. Do NOT Advocate – or Debate With – at your VA C and P Exam.

C&P Examiners are doctors – not lawyers and not judges. 

Don't Argue - at your VA C and P Exam Most Veterans that try to prove their claim end up overwhelming the VA C and P Examiner with facts they may or may not be able to process at the moment. They will overload them .
Don’t argue with the examiner.

Don’t argue.

Though their opinion will carry some sway – a lot of sway – with the Rater in your claim, in the end, it is just an opinion.

Let them draw their opinion. If it is negative or doesn’t fit the facts, there are other doctors with other views that the Rater or BVA can balance and weigh to find the truth.

Do NOT try to prove your claim to the examiner. Most Veterans that try to prove their claim end up overwhelming the C&P Examiner with facts they may or may not be able to process at the moment. They will overload them with case law and legal language – much of which is irrelevant to the Doctor.

And remember – there is a mortal battle between doctors and lawyers. Since the first lawyer sued the first Doctor, they have always had a very cat-and-dog relationship (I say this somewhat “tongue in cheek”). If you start talking like a lawyer, you will shut that Doctor off from understanding your medical condition. I can guarantee that your Exam will end with a negative opinion.

Think about it in the context of your most recent job or profession – if someone walked in and started barking all this legalese while telling you how to do your job, what would your reaction be?

You’d feel bullied or attacked. You’d feel insulted and marginalized. You might zone out on the person talking and miss what they are trying to say. Or you might do whatever you had to to get that person out of your office, cubicle, or maintenance bay.

Nobody likes being bullied. So don’t advocate your claim to the C&P Examiner – it’s not the time and place to advocate for your claim.

It is the time to talk about symptoms and limitations – and to DRIVE the examiner back into your C-File and medical records to study the claim.

Rather than launch into the medical and legal theory of your claim, and spend 15 minutes forcing the C&P Examiner to “zone out,” why not push them to look at the records.

Consider this exchange:

Doctor: Tell me about your sleep apnea symptoms since you left the military.

Veteran: My medical records and claims file detail all of the symptoms – the many apneas throughout the night, my need for a CPAP, the daytime sleepiness problems from getting a good night’s sleep – but the bottom line is that since service, I wake up several times each night gasping for air, and the only relief I get is when I wear this CPAP machine.

You got your point across – succinctly. You pushed the examiner to look at the facts (if she doesn’t, that will be obvious in her decision). And you did it concisely and courteously.

The bottom line – the C&P Exam is not the time to be an advocate or a lawyer.

Keep your discussion limited to symptoms and limitations only, and your one-liner about why you think it is service-connected.

The bottom line – the C&P Exam is not the time to be an advocate or a lawyer.

Keep your discussion limited to symptoms and limitations only, and your one-liner about why you think it is service-connected.

7. Know What is “At Issue” in the VA C and P Exam.

In earlier tips, I told you to talk only about symptoms and limitations. If you have to, have a brief statement (20 seconds and 1 sentence) that explains why you think your condition is service-connected. But this begs the question – how do you know what will be discussed in your C&P exam? This comes back to understanding the 4 Pillars of a VA claim. 

Your C&P exam will invariably involve issues in only 2 of those pillars:

You can read about all 4 Pillars by clicking here


As you read the sample format below, think whether this kind of organization might help a VA Rater more easily understand your claim and – at least in my experience – empowers THEM  to issue a quicker decision for YOU.

A. CONDITION: DIABETES.
Pillar 1:  Eligibility as a Veteran
I have shown that I am an eligible Veteran. Explain the details of how you became eligible, and cite to the page in your VA C-File that has the evidence PROVING that you are eligible.

Pillar 2:  Service Connection
I have shown that I am entitled to service-connection of my diabetes because I showed evidence of my high blood sugar in service, have provided a medical statement from the VA Medical Center showing that I have was diagnosed with Diabetes after my discharge, and have an expert medical opinion explaining how my Diabetes is at least as likely as not related to my military service.

Again, be sure to cite to the page in your VA C-File that has the evidence PROVING that you are eligible.  It doesn’t matter whether you THINK you have proven service-connection. What does matter is that you provide EVIDENCE that you did prove each element.

Pillar 3: Impairment Rating.
I have attached a DBQ (Disability Benefits Questionnaire) from my VA Medical Center Doctor that shows the current state of my diabetes, and in comparison with 38 CFR Table 4 (Diagnostic Code 7913) I believe I am entitled to a 40% rating for my Diabetes.

Pillar 4: Effective Date.
It is my opinion that I am entitled to an effective date of [Choose the earliest date you think the law will support]. However, I will reserve my arguments about effective dates until after the VA Ratings Decision granting service-connection and a 40% Impairment Rating is issued.

Suppose your exam is for a condition that has not been service-connected. In that case, it is a good chance that it is either a “nexus” or a “diagnostic exam.”

Let’s talk about the diagnostic exam. Remember that the VA has a Duty to Assist?

While I always tell Veterans not to confuse the “Duty to Assist” with “Actual Assistance,.” There is one scenario where I think the VA does a good job of assisting Veterans in their claims.

That scenario arises if you have not yet had your medical condition diagnosed – in certain situations, the VA is required to send you for a Diagnostic Exam to diagnose your medical condition before a decision can be made about service connection or impairment rating. If, however, there is no reasonable possibility that the condition could be service-connected even if diagnosed, the VA does NOT have to send you for a Diagnostic Exam.

Suppose your exam is not a diagnostic exam. In that case, you can be sure that the doctor will want to talk to you about “nexus” and the “impairment rating” criteria.

So here’s what you should do – first, prepare your brief statement as to why you think your condition is related to military service – keep it short and sweet (see Post #1 for a great example) and remember that the goal is to force the Examiner into the C-File to study your medical and military service records.

Next, look up the rating criteria in 38 CFR Table 4 to determine what factors the doctor will want to know when deciding on your rating percentage.

Click here to learn how to find out what your Impairment Rating criteria are. Focus on these symptoms and limitations in your discussion.

Lastly, if you have enough time before your exam, prepare a summary of your medical records for the doctor to review – even if they already have the C-File.

I explain exactly how to do this in my Training package – How to File a VA Claim.

In that video, I will teach you how to assemble and organize the medical evidence that proves your claim for service connection by using my unique “VA Claim Map.“

It’s not hard to do, and it will help you keep your claim organized. Many doctors have really appreciated the summary of the claim that we sometimes send with our clients to C&P Exams.

8. If you talk about your condition, paint a picture.

When I tell my clients this tip, I tell them to think of “Toilet Bowls.” I had a client going in for a C&P Exam to re-evaluate the impairment rating on his knee condition. The prior VA Examiners had never considered the “instability” in his knee joint when low-balling his rating in the past. So we knew this exam would focus on the instability of the Veteran’s knee.

In our prep for the C&P exam, I asked my client to describe his knee instability. Here’s the story he told me.

“When I use the restroom at work, I cannot get off the toilet bowl without help. I tried but broke the toilet paper rack because it could not support my weight without breaking. I was lying on the floor in my own piss while my co-workers helped me stand up and get my pants on. I have this problem at home and in public restrooms everywhere – I cannot stand up off the toilet on my own because my knee is so weak and unstable.” 

That story is particularly effective in describing problems with knee stability. Why? Because the Veteran painted a picture that used a toilet bowl – and nobody can forget those visual images.

Now, I’m not saying to describe all your symptoms using a “Toilet Bowl” example. I am saying that you should paint a picture for the examiner of how the symptoms affect your daily life and work activities.

In a claim for aid & attendance, don’t say: “I need help getting dressed.” Instead, say: “My 16-year-old daughter has to help me zip my pants every morning because my Parkinson’s prevents my fingers from being able to work my own zipper.”

In a claim for PTSD rating, don’t say: “I have trouble getting along with co-workers.” Paint the picture, and say: “I spend 2 hours a day hiding in the bathroom at work on the floor of the accessible stall because I’m so scared of being around other people with my PTSD.” That’s not a picture – it’s just a statement that every other Veteran is probably telling the same examiner.

See what I’m saying?

Don’t state symptoms. Paint a picture.

But be careful – don’t embellish…everyone can spot someone engaging in self-serving hyperbole or exaggeration (you know the type – in the military, we called them “Bulls**t Artists”).

Just describe the problems your symptoms are giving you in your daily living and working activities by painting a picture of when and how often they surface.

9. Get the VA C and P Examiners name and a Copy of your C&P Exam.

I’ve shared this tip before – when the exam is done, ask the doctor for their business card or name if you can. Be friendly about it – not confrontational.

Why do you want to do this? Because the Veterans Court has said that unless you challenge a doctor’s credentials, you are allowing the VA to presume that the doctor was competent and the exam was adequate. So, get the doc’s name. Then read up on how to challenge the doctor’s credentials in a Notice of Disagreement if your C&P Exam returns adverse.

And then – I cannot stress this enough – get a copy of the C&P Exam. Before the Ratings Decision comes out if you can. Here’s how to get a copy of the C&P exam using the Freedom of Information Act (FOIA).

10. After the Exam – Write Down your Notes.

Take good notes during and after the VA C and P exam.

Take good notes at your C and P exam or regular VA appointment.

Ask your VA C&P exam question in our community forum

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Related

 

VA Compensation and Pension Exam – Do’s and Don’ts – VA Compensation Pension Exam

A Guideline for your VA compensation and pension exam

A VA Compensation and Pension Examiners’ perspective relating to psychiatric exams. It is a good guideline for all exams, but they only did psych exams. 

The VA has examined me for multiple problems, and this is my format when I go to be examined. A little common sense and clarity of thinking will go a long way towards getting you what you are entitled to. Written by: Steve A. Neff MSW 

This person is going to judge you. It’s their job, and that is why you are there. To be adjudicated fairly. How would you like to be remembered? A skuzzy stereotypical veteran? Or a troubled one who is doing the best they can? – Steve A. Neff MSW 

Do not talk about alcohol or drug-related issues. You are not there to be assessed for those problems. You are there to be evaluated for your psychiatric functioning as today relates to your service history. If the examiner asks about alcohol or drugs, politely remind them that you are not there for those issues if you’ve ever had them, but for how impaired you are in your daily functioning. It’s best to avoid even talking about them. Got a VA horror story? I can tell you a worse one. Don’t waste your time with how badly you believe you’ve been mistreated. The examiner only has a short time to figure out how impaired you are, and they need the facts. Incoherent, concise sentences, and not rambling rants that lead nowhere

Answer the questions to the best of your ability. If you don’t know, say so. This is nearly a no-brainer but be honest. Don’t embellish your stories with fanciful tales. Just the facts, please.

Be able to document everything you tell the examiner. If possible, have letters from people you served with, unit diary copies of incidents during your time and space, and letters from family members. You may run into someone like me who checked stories out. 

Family member letters usually don’t add much weight to your case because families are there to support you, and examiners understand that.

If sleep is a problem, don’t sleep the night before. Go in on the ragged edge of tired out. But do your best not to be rude and insensitive. Payback in a VA C&P exam is you lose. Not all examiners are that way, but I have met a few that should not have been examiners.

When responding to examiners, you need to pick the worst moment relating to that question. You need to be rated for the worst times you have had. I always chose a really bad day and related all of my answers to that day. The day I could not sleep, was anxious and startled easily, was grouchy to my wife and friends, felt like my heart was coming out of my chest, and nothing went right for me. That day should have been in the last 30-90 days. If it was a year ago, you might not need to be having this exam. The questions you are being asked are on a script in front of the examiner. After examiners do this for a while, they get a sense of what is in front of them. It’s not too difficult to determine when someone is lying and struggling with memory. The above does not mean that examiners cannot be scammed because they can be.

What to Expect during the Medical Examination

You should expect the examiner performing your medical examination to evaluate the condition(s) listed on your claim for benefits. Depending on the number and type of disabilities claimed, the length of the examination will vary. Psychiatric examination or for multiple disabilities requires more time to evaluate. If necessary, the examiner may ask more questions about your disability history, review pertinent medical records, or order additional testing or examinations.

I discovered veterans lying and dealt with them by reporting this to the proper authorities at the VA. It’s a Federal criminal act to lie to gain monetary compensation. And the odds are you will be prosecuted. It simply isn’t worth it.

Examiners are generally good people trying to do a challenging job. Make it easy for them. I always advocated having the individual’s husband/wife in the room with me during the exam. As an examiner, I enjoyed having someone’s spouse with them. Husbands and wives can tell the truth much better than veterans. Ask your wife how well you’ve done in the past ten days versus your opinion of how you’ve been doing. Quite a dramatic difference if you are truthful!

Remember to report how you REALLY are doing and not how you’d like to be doing. One of the questions I always had a hard time asking was, “How are you doing today?” Most veterans want to be doing MUCH better than they really are. It’s like we know we can be doing better, and have done better, but our pride does not want to let anyone know how badly we really are doing. Veterans would answer the above question: “Well, I’m doing pretty good.” Should I write, “The veteran reports that he is doing pretty good?” Not if you want your claim adjudicated fairly.

  • Be on time or a little early
  • Be polite. Yelling at the examiner for the injustices you perceive will do nothing but alienate them.
  • Curse at your own risk. You can get your point across better with proper English.

The best answer I ever got from a veteran was from a former Marine Vietnam Veteran who said, 

If I’m here, I can’t be doing very well now, can I? I haven’t been able to sleep for the past ten days over worrying about this exam, and my wife says I’m really grumpy, and the bill collectors call all of the time.

This veteran just told me he couldn’t sleep due to anxiety, the heart of PTSD, was depressed (remember grumpy?), another critical facet of PTSD, and he’s had problems with his work history if he can’t pay his bills. He wasn’t angry about what he said. He was so matter of fact it took me a bit to realize what he had said. He could have been talking about having a cup of coffee for all of the emotions he expressed.

These are things I can explore further with the veteran. I don’t have to hunt or pull teeth for information. This veteran controlled the exam because he knew clearly about his problems and what he wanted to say. I spent some extra time with him. He ended up 100% service-connected for PTSD. He had his ducks in a row, paperwork all present, and had done enough clinical work before the exam that he knew his problems and, more importantly, how to express them to another person.

Steve A. Neff MSW