CP Exam Contested --- how to proceed

[purexattrition]

I was given a "less likely than not" smack down by my CP examiner (as prior existing MH issue, so not service connected), but some of the things he wrote in his reasoning were direct contradictions to statements in my other documentation (showing that he either didn't read them properly, or that he was intentionally attempting for some reason to cause a denial). In any event, since it's still in the "preparation for decision" phase, I wrote up a document saying I wanted to contest the CP Exam based on (yada yada) and brought it to the regional office so they could add it to my file. Has anyone done this before? Will this be taken into consideration? Do they make you retake the CP exam, or simply continue with the decision and have you appeal? At this point I've pretty much given up any hope that I'll be getting any benefits, but if anyone has had success after such a decision, I'd love to hear your input. Thank you. (Also, if there is any way to file a complaint about an examiner for either gross negligence or intentionally putting false information in a report, I'd like to know how to do that as well, since he put multiple condemning remarks in my report that were the exact opposite of whats stated in the medical documents he was reading through.)

[WhyNow]

Hi, to get regulations governing C & P exams look under the Code of Federal Regulations Chapter 4. Another great resource is joining Veteran 2 veteran on facebook. That is an information sharing site. Very resourceful. Present your question in the search box and a trained representative will respond with regulations covering your topic. Good Luck.

[broncovet]

You can attack the exam in at least 3 ways:  1) ask for errors to be amended, 2) challenge the competency or thoroughness of the exam upon appeal  3) Get another docs favorable opinion such as an IME/IMO or another VA doc.    Just remember,  it takes medical evidence to refute medical evidence, lay evidence wont suffice.  

1. If there are errors of fact in the exam, ask to have your records amended per 3.1579:

§ 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

 

Another way is to attack the credentials of the examiner upon appeal.  Was the examiner competent, that is, did (s)he have medical training or experience in your issue?   Did the examiner state they reviewed your records?  If not, that exam is not thorough and may be thrown out.  Did the examiner offer a medical rationale as to why they arrived at the conclusions?  

 

Still Another way is to get another IME/IMO or even another VA doc to write a conflicting opinion.  BOD says the more favorable exam will apply, unless the VA gives a justification for relying upon the less favorable exam, such as the less favorable exam was more thorough as the examiner reviewed the records.  

[Guest]

What does your treating doctor say about your condition?  VA or civilian doctor it really does not matter but a veteran should not go to a C & P exam without a clear diagnosis.  If your treating doctor has reviewed you SMRs/STRs and opinion that your mental health condition was caused by or aggravated by your military service it would go a long way better than a C & P examiners opinion.

[pwrslm]

If the record contained positive information that anyone with a reasonable mind would think that the positive info would prove SC, then the rater is required to document reasons and basis for not using the information, or including its value/weight in the rating process.

The rating authority is required to assess the entire record., 38 USC  4.1 states "It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. ", and 4.6 states ". Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. ".

 

While a competent exam by the C&P examiner is a right that they cannot set aside, the rating authority also has a defined obligation under USC to insure that all the information about your condition is used when making a rating determination.  Depending on the basis stated by the C&P examiner, the omission of medical history in the process of providing a competent medical determination about your medical condition, can be considered as malpractice in some situations. (The falsification of medical records through omission of facts which the examiner stated was reviewed as a part and parcel of the actual examination may also be a federal crime.  The VAOIG is responsible for these cases.  The law expects a level of competence in medical professionals.)

Edited January 29, 2016 by pwrslm

[Berta]

Thanks for posting my favorite regulation! 38 CFR 4.6.

I think the ROs violate this reg far more than we know.

Your original post stated:

"I was given a "less likely than not" smack down by my CP examiner (as prior existing MH issue, so not service connected"

What medical basis or medical evidence did the examiner use for that or did they make it up?

Do you have a documented MH issue that existed prior to your service?

Even if you did ,you were accepted into service as fit for service.

Can you scan and attach here the Reasons and Bases and Evidence list that caused the denial?

[flores97]

Purexattrition, check out Veterans Law Blog(Chris Attig site), post"junk science invades VA like ants at a picnic". He tells you the exact wording to put in your c&p exam challenge.