How benefits are determined - the weight of C&P Exams

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Posted on: Tuesday, November 09, 2010
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Jim,

I've googled every combination of search terms I can come up with, but am unable to find an answer for a question I have regarding the weights given the opinion of a C&P examiner.

The short of it: Generally speaking, how are C&P exam results weighted, versus supporting evidence and, in particular, a nexus letter from a private physician?

My primary care physician wrote a strong nexus letter (actually, I wrote it and he signed it) supporting service connection for my compensation claim. I submitted the letter along with my Notice of Disagreement after the original claim was denied. The letter includes reference to my doctor's familiarity with my military and private medical records, even including a direct quote from an exam write-up in my service medical records. It also notes the length of time he's been my primary care physician (10+ years), the various medications, therapies, etc., that he's prescribed for my condition, the fact that there are no obvious factors aside from the nature of the work I performed during my time in service that could have caused the condition, the fact that none of my family members suffer from the condition, etc. It also ends with his statement that in his opinion my condition "more likely than not" was caused by my military service."

I was scheduled for a C&P exam a little over a month ago and soon after requested a copy of the examiner's report, which I received today. In the examiner's comments it is written:

The veteran has a degenerative condition (both disc bulges and mild stenosis) in her cervical spine that is not the result of any traumatic event. I am not aware of any occupational factors associated with her service duties that would predispose to development of these conditions. It does not appear that these degenerative conditions were caused by or a result of her service. She had an episode of neck pain shortly before discharge that might or might not have signaled the onset of presentation of this condition. Given that she then served for an additional 2-1/2 years in the national guard with no further documented complaints, I would have to be of the opinion, for the reasons enumerated above, that it is less likely as not that the veteran's degenerative disc disease is caused by or a result of her complaints and condition during her military service.

So, as I wrote above, I'm simply wondering if it would be typical for the VA to favor the C&P examiner's findings over those spelled out by my medical records and nexus letter.

One other thing: The C&P examiner wrote, "I am not aware of any occupational factors associated with her service duties that would predispose to development of these conditions." He did ask me what my job was, but didn't seem at all familiar with my answer: Communication and Navigation Systems Technician. He didn't appear to know what that meant, but didn't ask for any clarification. Nor did he ask what my duties consisted of. The problematic ones, which I believe caused my neck problems, included a lot of heavy lifting and standing at a workbench for hours at a time. Shouldn't he have asked about that/taken it into consideration?

I realize any specific predictions regarding this case/my question are impossible...but are the C&P examiner's notes and opinions the final word?

Many thanks in advance.

Reply:

You've entered into a complex arena that is full of science, facts, opinions and biases. There is no specific rule that lends credibility to one opinion over the other. In the final analysis, the decision maker will have to weigh what he/she reads and use personal judgment to weigh one statement over the other.

If the opinions each seem valid and each opinion seems to be based in fact, any reasonable doubt is supposed to tilt toward the veteran. That doesn't always seem to happen though.

To learn more about reasonable doubt, click here.

The individual who makes the call is the Ratings Veterans Service Representative...RVSR. The RVSR should compare and contrast each doctors opinion and looking at the accumulated evidence, decide which fits your scenario the best.

All too often the RVSR may believe that your civilian family doctor may be favoring you out of a desire to keep a good customer happy. The C & P examiner is often viewed as a less involved, therefore more objective, viewer of the record. This is also the reason that "buddy
letters", statements in support of your claim, from witnesses like your parents, teachers or pastors aren't likely to be given much attention. After all, what would we expect those people to say?

However, at other times the civilian physician may be more credible due to training, length of time in practice and specialty board certification. For example, if a VA examiner is an M.D. with no specialty training and then opines on an orthopedic condition, your statement from an orthopedic surgeon will almost always trump.

When we address chronic bone and joint conditions that are often described as "degenerative", it all becomes more difficult. As we age, we can all anticipate some degenerative changes in our skeletal structure. Most of us will show arthritic changes, we will lose some height and we become less flexible. These are normal changes and
generally will not be seen as service connected.

If we wish to make a nexus from a current degenerative condition and connect that condition to an event or events that occurred on active duty, VA requires that the event(s) of service be clearly recognized in the record. For example, an airborne soldier who is suffering from arthritic knees today will be required to show that he was jumping from airplanes, the frequency of the jumps and how long he was on jump status.

To further support his case for a service connection to the degenerative arthritis of his knees he should be able to show some record of a complaint of knee problems and subsequent treatment while on active duty. The two events will establish an anchor for the
service connection.

At least as important as all that, maybe more importantly, the veteran will show that within one year of ETS he was seeking medical attention for those bad knees. Credibility is lessened with passage of time to make this sort of service connection. If a year or two passes with no problems and no treatment, it may be easy to say he toughed it out and
that the condition was there all along. If a five or ten year period passes with no record of complaints or treatments, it becomes much more difficult to build a case for service connection. Beyond ten or fifteen years with no records of treatments, VA is likely to see those painful knees as a circumstance of aging and in no way service connected.

For more on the principles related to establishing service connection, click here.

OK...what do we do to ensure that we have all due consideration?

If the award letter you will receive isn't favorable and you believe that is an error by VA, you appeal. As a rule I suggest that some 70% of the initial decisions will be flawed in some way and will require an appeal. I view appeal as a routine and ordinary part of the process
so nothing to be excited about.

In your case it appears that you believe that the examiner didn't give you an appropriate exam. He opined on your condition without asking questions you feel were relevant. Thus, you will appeal on the grounds of an "inadequate exam". This is simple to do and only requires that you write a letter to your regional office to notify them that you disagree with their findings and you wish to appeal. Explain why, briefly, and that will trigger a new C & P exam that is likely to be much more thorough.

While you wait for the new C & P exam, you then start to work to have an Independent Medical Examination (IME) done by an expert. The IME is often your very best evidence as it is conducted by an individual who has superior training and credentials to conduct such exams.

The IME may be done by an orthopedic surgeon or a physician who specializes in disability IME exams. I recommend the latter as they are usually much more familiar with the appropriate verbiage that VA wants to read.

The IME and report may be a full examination and records review or only a records review. The IME may be expensive and you are always required to pay in advance. If the IME happens to disagree with you and finds that your condition isn't likely service connected, there is no refund of the fee. You are paying for an honest and unbiased report and that's a risk you will take.

More about IME here http://www.vawatchdog.org/IME_-_IMO.html The bottom line is that degenerative and arthritic conditions are very challenging to establish as service connected for the purpose of an award of a disability rating. Without a solid chain of evidence showing the causative event in service and then a documented steady progression of the severity of the condition, VA will almost always put up a vigorous defense against these claims.


 

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