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  1. Hey, I was put in for and increase for my 80 percent decision. I did completed and exam after the decision and now they want me to do another one. Can anyone tell me why?
  2. PTSD) Disability Benefits Questionnaire Name of patient/Veteran: Is this DBQ being completed in conjunction with a VA 21-2507, C&P Examination Request? [X] Yes [ ] No SECTION I: ---------- 1. Diagnostic Summary --------------------- Does the Veteran now have or has he/she ever been diagnosed with PTSD? [X] Yes [ ] No ICD Code: F43.10 2. Current Diagnoses -------------------- a. Mental Disorder Diagnosis #1: Antisocial personality disorder ICD Code: F60.2 Mental Disorder Diagnosis #2: Opioid use disorder ICD Code: F11.20 Mental Disorder Diagnosis #3: PTSD ICD Code: F43.10 b. Medical diagnoses relevant to the understanding or management of the Mental Health Disorder (to include TBI): Deferred to medical 3. Differentiation of symptoms ------------------------------ a. Does the Veteran have more than one mental disorder diagnosed? [X] Yes [ ] No b. Is it possible to differentiate what symptom(s) is/are attributable to each diagnosis? [X] Yes [ ] No [ ] Not applicable (N/A) If yes, list which symptoms are attributable to each diagnosis and discuss whether there is any clinical association between these diagnoses: Antisocial personality disorder is responsible for contentious interpersonal relationships including threats, aggression, assault; failure to accept responsibility; violation of social norms and law; impulsive decisions and behaviors; and affective instability. In the symptom list below antisocial personality disorder is responsible for impaired judgment, disturbance of motivation and mood, difficulty establishing and maintaining effective social/work relationships, difficulty adapting to stressful circumstances, and impaired impulse control. Opioid use disorder has been in institutional remission June 2018, and is not at this time contributing to the symptom picture. Substance use is well known to have deleterious effects on mood, cognition, and behavior. When active, however, these symptoms likely take a predominant role. PTSD is responsible for the remaining symptoms below, which include depressed mood, chronic sleep impairment, and flat affect. c. Does the Veteran have a diagnosed traumatic brain injury (TBI)? [ ] Yes [X] No [ ] Not shown in records reviewed 4. Occupational and social impairment ------------------------------------- a. Which of the following best summarizes the Veteran's level of occupational and social impairment with regards to all mental diagnoses? (Check only one) [X] Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation b. For the indicated occupational and social impairment, is it possible to differentiate which impairment is caused by each mental disorder? [X] Yes [ ] No [ ] Not Applicable (N/A) If yes, list which occupational and social impairment is attributable to each diagnosis: As noted above regarding symptoms, Antisocial personality disorder is primary and PTSD is secondary. c. If a diagnosis of TBI exists, is it possible to differentiate which occupational and social impairment indicated above is caused by the TBI? [ ] Yes [ ] No [X] Not Applicable (N/A) SECTION II: ----------- Clinical Findings: ------------------ 1. Evidence Review ------------------ Evidence reviewed (check all that apply): [X] VA e-folder [X] CPRS 2. Recent History (since prior exam) ------------------------------------ a. Relevant social/marital/family history: The veteran last completed a PTSD review DBQ 06/20/17, and he reported that since that exam he has moved from Columbus to Marysville. The veteran currently is in residential programming at Chillicothe VA, hoping for placement in the DOM. The veteran denied his family situation since last exam. Socially, the veteran said he is getting along well with other residents here. His girlfriend and mother visited him here. He said he is made some acquaintances in the programming as well as a couple friends. b. Relevant occupational and educational history: The veteran denied changes in education since last exam. He has completed a GED and some college, and has a license to work with fuel and chemicals for shipping. The veteran denied employment since May 2017. He worked in landscaping prior and occasionally for his mother after that. His mother's business is sales of retail and bank machines. He said his mother arranged his hours to suit him. c. Relevant mental health history, to include prescribed medications and family mental health: The veteran denied pre-military and military mental health treatment. Specifically, he denied a history of hospitalization, suicide attempt, outpatient therapy, and prescription of psychotropic medications prior to about 2001. CPRS and VBMS were reviewed with the following relevant mental health entries. 06/20/17: PTSD review DBQ. MSE: Mood and affect depressed, otherwise normal. Examiner opined significant impairment. 06/14/18: Medical certificate. The veteran requested admission due to depression, suicidal ideation, overdose attempt on Seroquel and alcohol last evening, and hearing voices telling him to kill himself every day. UDS was positive for oxycodone, Suboxone, and cannabinoids. DX: Cocaine dependence; alcohol abuse; cannabis dependence; opioid dependence; PTSD. 06/19/18: Medical certificate. Veteran seen for change in programming. MSE: Normal except for dysphoric affect. d. Relevant legal and behavioral histor y: The veteran denied arrest since last exam, however, he has 3 years and 3 months left on parole. As a juvenile, the veteran was arrested for trespassing, DUI, domestic dispute. He denied being remanded to juvenile detention. During military, the veteran was arrested for underage consumption. He also received NJPs for being late to work (up to 10 hours), possession of pornography, disrespect to a commanding officer, and drinking while on duty. After service, the veteran has been arrested for domestic violence 2, aggravated robbery 3, and theft. He served 10 years in ODRC. While in prison, the veteran reported that he ran the inmate "store" providing drugs, contraband items, and running gambling schemes. He received over 50 tickets for institutional rules violations while in prison. He was released in September 2016. e. Relevant substance abuse history: The veteran reported that historically he has rarely used alcohol, perhaps 1-2 times per month and none since June 2018. The veteran denied use of illicit drugs since June 2018. In the period immediately prior he primarily used narcotics and heroin. f. Other, if any: Nothing further. 3. PTSD Diagnostic Criteria --------------------------- Please check criteria used for establishing the current PTSD diagnosis. The diagnostic criteria for PTSD, are from the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5). The stressful event can be due to combat, personal trauma, other life threatening situations (non- combat related stressors). Do NOT mark symptoms below that are clearly not attributable to the Criterion A stressor/PTSD. Instead, overlapping symptoms clearly attributable to other things should be noted under #6 - "Other symptoms". Criterion A: Exposure to actual or threatened a) death, b) serious injury, c) sexual violence, in one or more of the following ways: [X] Directly experiencing the traumatic event(s) Criterion B: Presence of (one or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred: [X] Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s). [X] Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s). Criterion C: Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic events(s) occurred, as evidenced by one or both of the following: [X] Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s). Criterion D: Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following: [X] Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., "I am bad,: "No one can be trusted,: "The world is completely dangerous,: "My whole nervous system is permanently ruined"). [X] Markedly diminished interest or participation in significant activities. Criterion E: Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following: [X] Hypervigilance. [X] Exaggerated startle response. [X] Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). Criterion F: [X] The duration of the symptoms described above in Criteria B, C, and D are more than 1 month. Criterion G: [X] The PTSD symptoms described above cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Criterion H: [X] The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition. 4. Symptoms ----------- For VA rating purposes, check all symptoms that actively apply to the Veteran's diagnoses: [X] Depressed mood [X] Chronic sleep impairment [X] Flattened affect [X] Impaired judgment [X] Disturbances of motivation and mood [X] Difficulty in establishing and maintaining effective work and social relationships [X] Difficulty in adapting to stressful circumstances, including work or a worklike setting [X] Impaired impulse control, such as unprovoked irritability with periods of violence 5. Behavioral observations -------------------------- The veteran presented as guarded. We were able to establish adequate rapport through time. He initiated conversation and elaborated on topics, often to highlight the frequency and severity of symptoms. He was easily re-directed, however. He was cooperative in that he answered all questions asked. The veteran's mood was neutral and stable. His affect was mildly flat and mildly irritable, with limited mobility in range and intensity. The veteran seldom smiled and laughed, and seldom responded to humor. He was not tearful. There was no hopelessness and helplessness evident in his comments. There was no objective evidence of facial flushing, vigilance, arousal, tremor, perspiration, or muscle tension. Speech, thought processes, orientation, attention, and memory all were within expectations. Psychomotor was remarkable for bouncing a leg. Given vocabulary, and educational, employment, and military history, I estimate his IQ in the average range. The veteran denied recent changes in sleep, noting he experiences nightmares about 70% of the time. He appeared alert and rested and did not report functional loss due to sleep problems. He said his appetite is unchanged with some weight increase with abstinence from drugs. Thought content was negative for objective signs of psychosis and the veteran denied same. He also denied suicidal and homicidal ideation, but added "They call it passive SI. I'm getting better at telling people about it." Given several opportunities, the veteran reported current symptoms of: Nightmares; not liking to think about the military event; staying away from crowds; inability to interact with people; increased stress with work; blaming himself for the event happening; being aware of his surroundings; isolating from others; not sleeping well; drug use. The veteran reported abilities indicating that he retains considerable cognitive capacity (physical capacity is not assessed here). When home, he enjoys gardening, growing roses, and mowing his sisters grass. He told that he can drive independently. The veteran said he can perform personal care independently. The veteran told that he can use a calendar, clock, calculator, telephone, and computer. He reported that he can manage money, appointments, and medications, as well as shop and pay bills. For enjoyment he watches TV on his laptop, works out, watches OSU football, and does some light reading. He had good social skills on exam. Socially, the veteran said he is getting along well with other residents here. His girlfriend and mother visited him here. He said he is made some acquaintances in the programming as well as a couple friends. 6. Other symptoms ----------------- Does the Veteran have any other symptoms attributable to PTSD (and other mental disorders) that are not listed above? [ ] Yes [X] No 7. Competency ------------- Is the Veteran capable of managing his or her financial affairs? [X] Yes [ ] No 8. Remarks, (including any testing results) if any: --------------------------------------------------- ****This forensic report is a legal document intended for the sole use of VBA in determining the veteran's eligibility for compensation and pension. This examination is very different from other psychological examinations, such as for treatment, with considerably different criteria and, thus, often with considerably different diagnoses and outcomes. As such, great caution is needed in interpreting this information and use of this report outside its intended purpose by VHA personnel, VSO, and/or the veteran is STRONGLY discouraged. This examination does not constitute a rating decision. Rating decisions are made solely by the Regional Office after all available data have been reviewed and verified. Note that "The examiner should not express an opinion regarding the merits of any claim or the percentage evaluation that should be assigned for a disability. Determination of service connection and disability ratings for VA benefits is exclusively a function of VBA" (VHA Directive 1046). Thus, any questions or concerns regarding rating decisions should be directed to the Regional Office or an Appeals Board.**** The veteran was seen today for this PTSD Review exam. I verbally provided the usual informed consent regarding: this being a VBA assessment, not treatment; the report becomes a legal document; the forensic role of VBA; the potential outcomes of a review exam; and limits to confidentiality. A written copy of Informed Consent was offered. Throughout the interview the veteran inserted nearly every symptom of PTSD listed in the DSM 5. He noted often that these symptoms are severe and prevent him from interacting with people and working with others. This was not particularly consistent with mental status and functional data. Some patterns of thought developed throughout the interview, such as when the veteran noted that when people try to enforce rules or consequences for his behavior he makes threats and blames them for causing him to use substances. He noted that all his criminal behavior and drug use is due to the military assault, even though he also reported that alcohol and drug use began at an early age, as did arrest. For example, the veteran said that the traumatic event in service caused and or heightened his drug use in response, but he also commented that "I figured out when I was younger that using drugs and alcohol makes problems like that go away." The veteran noted that he was found to have steroids in his jacket while at Bay Pines. He subsequently was discharged from the program. He then interpreted that as "people make me fail. That (being discharged from Bay Pines) put me in a bad place and made me attempt suicide. They deny my individual unemployability because they say I'll get better with treatment, then the treatment kicks me out and I'm worse now." This behavior and thinking is quite consistent with personality disorder. The veteran was diagnosed with PTSD in prior C&P exams, the diagnosis has been carried forward by treatment providers, and by his report continues with sufficient symptoms for the diagnosis. Thus the diagnosis of PTSD continues, as likely as not due to events in military service. Antisocial personality disorder was present well before military service, so it is less likely as not caused by military events, and there is no evidence that this disorder was exaggerated by military events. Also, alcohol and illicit drug use clearly was present prior to enrollment in military, so it is less likely as not caused by military service. There is no evidence that the veteran's substance use was due to events in military service nor has it progressed beyond the normal course for this disorder. Put another way, even if the military event had not occurred it is likely that the resulting pattern of substance use would have been present. Moreover, while there is some equivalence in the literature about the direction of causality when both mental disorder and substance use are present, DSM 5 does not acknowledge any substance use disorder as "due to mental illness," yet there are numerous "substance-induced" mental disorders. INDIVIDUAL UNEMPLOYABILITY The veteran retains considerable residual mental function (physical limitations, if any, are not assessed nor considered here). The veteran can perform personal care independently. He has a driver's license and drives independently. The veteran can use a calendar, clock, calculator, telephone, and computer. He can manage money, appointments, and medications, as well as pay bills. There is no mental disorder that prevents him from attending to, learning, and persisting to complete simple and complex tasks. There is no cognitive dysfunction that would prevent same. His performance on mental status in attention, concentration, memory, abstraction, and thought processes were within expectations for age. The veteran reported limited socialization. Yet, he dated, married, and maintains a current relationship (after divorcing). He maintains some contact with family. Moreover, the veteran was a quite bright, capable, pleasant, cooperative gentleman on exam, and his social skills here were excellent. He reported isolating at home, not liking to be around people, and having difficult relationships through time. The veteran is not a member of any clubs/organizations. Indeed, personality disorder is predictive of contentious interpersonal relationships and the affective instability and impulsive decisionmaking/behavior of the personality disorder may interfere with motivation and concentration.
  3. Can I site law in a letter submitted as evidence? The veteran was diagnosed with PTSD in prior C&P exams, the diagnosis has been carried forward by treatment providers, and by his report continues with sufficient symptoms for the diagnosis. Thus the diagnosis of PTSD continues, as likely as not due to events in military service. Antisocial personality disorder was present well before military service, so it is less likely as not caused by military events, and there is no evidence that this disorder was exaggerated by military events. Also, alcohol and illicit drug use clearly was present prior to enrollment in military, so it is less likely as not caused by military service. There is no evidence that the veteran's substance use was due to events in military service nor has it progressed beyond the normal course for this disorder. Put another way, even if the military event had not occurred it is likely that the resulting pattern of substance use would have been present. Moreover, while there is some equivalence in the literature about the direction of causality when both mental disorder and substance use are present, DSM 5 does not acknowledge any substance use disorder as "due to mental illness," yet there are numerous "substance-induced" mental disorders. LAW: pay attention to examples not to use....and c an p doc uses likely, less likely as not....
  4. Denial...really? The veteran's use of opiates, cannabis, and alcohol began prior to service, thus current/recent use/abuse is not caused by an in-service related event. Given the veteran's consistent diagnosis and treatment of PTSD, and the frequency of relapse of substance use, it is as least as likely as not that his substance use (to include opioid use disorder) is aggravated beyond its natural progression by his PTSD symptoms. Per 3/15/2017 initial PTSD exam the veteran was diagnosed with PTSD, alcohol use disorder, cannabis use disorder, and opioid use disorder, all of which were in early remission. The 3/15/2017 medical opinion, the examiner opined that the veteran's opioid use disorder, and substance use in general, was made worse by his MST. The 6/20/2017 review PTSD examination indicates that symptoms present at that time were due to PTSD and not substance use as he had been abstinent from drug use with the exception of his opioid maintenance therapy. The veteran is service connected for the combination of PTSD and substance use disorders however per 11/20/2017 medical opinion regarding unemployability, the examiner noted that the veteran was service-connected only for PTSD and not substance use which is incorrect. Per rating decisions 3/27/2017 and 10/11/2017, the veteran was service connected for "PTSD with secondary alcohol use disorder, cannabis use disorder, and opioid use disorder." They are separate disorders, and not all symptoms are present all of the time. The examiner commented specifically on the veteran's PTSD symptoms and separated the veteran's substance abuse disorder symptoms. The veteran's substance use predated his military service, thus it was not caused by his reported assault. It was, however, likely aggravated by the residuals of his assault as described in treatment notes which indicate that with worsening PTSD symptoms, the veteran has reported relapsing on substances, particularly heroin.
  5. #10 below addresses the use of recording devices. DATE: 02-13-91 CITATION: VAOPGCPREC 04-91  Vet. Aff. Op. Gen. Couns. Prec. 04-91 TEXT: Failure to Submit to Medical Examination–Insistence on the Presence of an Attorney and Use of a Recording Device QUESTION PRESENTED: Has a veteran failed to report for a scheduled examination for purposes of 38 C.F.R. § 3.655 if he or she appears but refuses to be examined unless accompanied by a private attorney and allowed to record the evaluation? COMMENTS: This is in response to your request for an opinion concerning the possible "right" of Department of Veterans Affairs' (VA) beneficiaries to be accompanied by an attorney during scheduled VA medical examinations. The veteran appeared for a scheduled psychiatric examination but refused to be examined unless the veteran's attorney was present and the veteran was permitted to use a tape recorder during the evaluation. Section 3.329 of title 38, Code of Federal Regulations, provides that every person applying for or in receipt of compensation or pension shall submit to examinations when required by VA under proper authority. Section 3.655 of that title provides for discontinuance of benefits when a veteran fails "without adequate reason" to report for examination. Determination of the facts surrounding a claimant's failure to report is a factual matter which rests with VA adjudication and appellate personnel. See 38 C.F.R. §§ 3.100 and 19.111. This opinion addresses the legal issue of whether denial of assistance of counsel and use of a recording device in connection with a VA-required examination constitutes adequate reason for failure to submit to examination for purposes of section 3.655.A "right to counsel" in administrative proceedings does not exist unless it can be found in some constitutional clause, statutory measure, or regulation. Barker v. Hardway, 283 F.Supp. 228 (S.D.W.Va.), aff'd, 399 F.2d 638 (4th Cir.1968), cert. denied, 394 U.S. 905 (1969); Suess v. Pugh, 245 F.Supp. 661 (N.D.W.Va.1965) (proceeding before Professional Standards Board of Veterans Administration). Turning first to the United States Constitution, we note that the sixth amendment provides for the assistance of counsel " i n all criminal prosecutions." It has no bearing on the question of assistance of counsel in civil matters before administrative agencies. Hannah v. Larche, 363 U.S. 420 (1960); Smith v. United States, 250 F.Supp. 803 (D.N.J.1966), appeal dismissed, 377 F.2d 739 (3d Cir.1967);Suess, 245 F.Supp. at 665. The fifth amendment is less specific than the sixth and contains a very powerful guarantee, requiring that one not be "deprived of life, liberty, or property, without due process of law." U.S. Const. amendment V. However, in interpreting that clause, the courts have been reluctant to find that "due process" includes a right to representation by counsel in administrative activities of an investigatory or preliminary nature. E.g., In Re Groban, 352 U.S. 330, 335 (1957) (no right to assistance of counsel in testifying at an investigatory proceeding); Bowles v. Baer, 142 F.2d 787, 789 (7th Cir.1944) (investigations held in private, without representation by counsel-- held no provision of the Constitution required public hearing); see also Hannah, 363 U.S. at 440-51 (no right to cross-examine witnesses before commission performing investigative function). See generally Torras v. Stradley, 103 F.Supp. 737, 739 (N.D.Ga.1951) (noting cases recognizing distinction between fact-finding functions and those involving determination of legal rights).In applying this case law to the situation under consideration, we note that medical examinations conducted by VA are investigative in nature. Within VA, there is a clear delineation between the role of the Veterans Health Services and Research Administration (VHS & RA) and that of the Veterans Benefits Administration (VBA). Compare the Department of Veterans Affairs Act, Pub.L. No. 100-527, § 7, 102 Stat. 2635, 2640 (1988), with 38 U.S.C. § 4101(a). As set out in 38 C.F.R. ss 2.67 and 3.100(a), authority is delegated to VBA personnel to make findings and decisions as to entitlement of claimants to monetary benefits under laws administered by VA. Thus, even though medical examinations conducted by VHS & RA provide important information relevant to claims for benefits, the examinations are not conducted by the same individuals who participate in benefit decisions, and the reports of those examinations represent only one piece of information which will be considered by adjudication personnel in determining eligibility for benefits. Given the nature of the examination function, there is thus, in our view, no constitutional right to the presence of an attorney at a VA medical examination.With regard to pertinent statutory provisions, assistance of counsel for persons appearing before administrative agencies is addressed in the Administrative Procedure Act (APA) in the first two sentences of 5 U.S.C. § 555(b). The first sentence provides that " a person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative." The second sentence adds that " a party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding." The legislative history of the predecessor to this provision indicates that the second sentence was intended to supplement the first sentence by providing a rule to govern situations where appearance of an individual is not compelled. 92 Cong.Rec. 2156 (1946) (statement of Senator McCarran). Since the veteran in this case was required to appear for examination at the risk of termination of benefits, we believe that only the first sentence of section 555(b) is for consideration here.The predecessor to section 555 was described in congressional committee reports as prescribing "the rights of private parties in a number of miscellaneous respects which may be incidental to rulemaking, adjudication, or the exercise of any other agency authority." H.R.Rep. No. 1980, 79th Cong., 2d Sess. 18, reprinted in 1946 U.S.Code Cong.Service 1195, 1206; S.Rep. No. 752, 79th Cong., 1st Sess. 8 (1945). The reference to "any other agency authority" suggests a broad application of the section. Further, a section-by-section analysis in the House report on the measure stated broadly " t he section is a statement of statutory and mandatory right of interested persons to appear themselves or through or with counsel before any agency in connection with any function, matter, or process whether formal, informal, public, or private." H.R.Rep. No. 1980, supra, at 31.Given that Congress intended the provision to apply to a broad range of agency functions, the question remains as to whether Congress intended that any limitations apply with respect to the scope of representation activities. This issue was addressed in House floor debate on the measure by Congressman Walter of the Committee on the Judiciary, who stated " t he representation of counsel contemplated by the bill means full representation as the term is understood in the courts of law." 92 Cong.Rec. 5652 (1946). Thus, it appears that the scope of representation was intended to be consistent with that recognized in judicial proceedings. A review of analogous situations in judicial proceedings reveals that medical examinations in both adversarial and nonadversarial settings are almost uniformly conducted without the presence of attorneys. For example, parties do not have the right, under discovery rules, to have an attorney present during mental or physical examinations conducted by physicians pursuant to Rule 35(a) of the Federal Rules of Civil Procedure. E.g., Wheat v. Biesecker, 125 F.R.D. 479 (N.D.Ind.1989) (by attending the examination the attorney might have to choose between participating at trial as a litigator of as a witness); Cline v. Firestone Tire & Rubber Co., 118 F.R.D. 588 (S.D.W.Va.1988) (nature of psychological examination particularly dictates against allowing the attorney to be present).Courts considering the issue of assistance of counsel in administrative proceedings have frequently ignored the possible applicability of the APA. Wasson v. Trowbridge, 382 F.2d 807, 812 (2d Cir.1967) (APA not mentioned in discussion of right of military academy cadet to counsel during expulsion hearing); Schawartzberg v. United States Board of Parole, 399 F.2d 297 (10th Cir.1968) (upheld regulation excluding counsel from parole hearings without mentioning APA). In F.C.C. v. Schreiber, 329 F.2d 517 (9th Cir.1964), modified on other grounds, 381 U.S. 279 (1965), the Ninth Circuit held that application of the "right to counsel" as provided in the APA varies with the circumstances of the case. In its turn, the Supreme Court noted, in F.C.C. v. Schreiber, 381 U.S. 279, 290 (1965), that administrative agencies should be free to fashion their own procedures and pursue methods of inquiry capable of permitting them to discharge their "multitudinous duties."Significantly, it has been held that, under the social security statutes, a claimant for social security benefits may not insist on the presence of an attorney during disability examinations conducted by the Department of Health, Education, and Welfare. Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa.1981). The reasoning in Neumerski is illuminating. The court rejected the plaintiff's argument that the presence of counsel was justified because the proceedings had been given an adversarial taint by the agency's request for further examination. Consistent with the legislative history of the APA the court pointed out that attorneys have no right to be present at medical or psychological examinations in truly adversarial civil litigation. 513 F.Supp. at 1016. Quoting from Brandenberg v. El Al Airlines, 79 F.R.D. 543, 546 (S.D.N.Y.1978), which labeled as "frivolous" the claim that an attorney should be present at such an examination, the court indicated that " t his is especially true in psychological examinations which depend on 'unimpeded one- on-one communication between doctor and patient.' " 513 F.Supp. at 1017. In addition to the concern that the presence of an attorney would undermine the communication process of an examination, courts have also recognized that there is very little an attorney can contribute in certain settings. Cf. Cruz v. Skelton, 543 F.2d 86, 96 (5th Cir.1976), cert. denied, 433 U.S. 911 (1977) (parole board hearing does "not present a forum in which the special analytical, research or forensic skills of the lawyer are necessary, nor even likely to prove particularly helpful"). In light of these considerations, we cannot conclude that the APA provides a right to be represented by counsel at the examination itself.Turning to relevant VA statutes and regulations, we note that there is no provision in title 38, United States Code, or in VA regulations, specifically granting a claimant the right to have his or her attorney, or other representative, present during a medical evaluation. Further, the involvement of claimants' representatives in VA proceedings is clearly not without limits. For example, while the provisions of 38 C.F.R. § 3.103(e) state that claimants "are entitled to representation of their choice at every stage in the prosecution of a claim," this provision is specifically made subject to the general provisions governing representation by attorneys and other representatives of claimants and beneficiaries in the "preparation, presentation, and prosecution" of matters affecting veterans' benefits. See 38 U.S.C. § 3404(a); 38 C.F.R. § 14.626, et seq. See also 38 U.S.C. § 4005(a) (representation rights to be accorded in administrative appeals pursuant to VA regulations); 38 C.F.R. § 19.150 (full right to representation by "authorized" individuals in all stages of an appeal). Even assuming that a regularly scheduled medical examination represents a "stage in the prosecution of a claim" for purposes of section 3.103(e), the scope of representation must be considered in light of the generally recognized limitations on the role of attorneys in judicial and administrative proceedings. Such limitations, as discussed above, generally preclude the presence of attorneys at medical examinations, particularly those of a psychiatric nature. Thus, the provisions of titles 38 of the United States Code and the Code of Federal Regulations cannot be read to grant attorneys authority to participate in such activities. In view of the foregoing, we conclude that a veteran does not have a right to be accompanied by counsel at a scheduled VA examination and cannot justifiably refuse to submit to examination on the basis of denial of counsel.Similarly, there is no constitutional, statutory, or regulatory requirement that would allow beneficiaries to use recording devices during VA medical examinations. Again, it must be noted that the examinations at issue are investigative and preliminary in nature. Further, while case law on the subject is not extensive, it supports the conclusion that one has no "right" to record such activities. See, e.g., Baer, 142 F.2d at 788-89 (no constitutional infirmity where court reporter ordered to leave investigative-hearing room); In Re Neil, 209 F.Supp. 76, 77 (S.D.W.Va.1962) (APA does not extend to any party the right to bring a stenographer to report the proceedings at an agency hearing); Torras, 103 F.Supp. at 740 (witness in investigative proceeding did not have right under the APA to the presence of a personal stenographer). As discussed above with respect to the presence of an attorney, use of a recording device would threaten to impede free communication between the examinee and the examining physician. VA regulations do not authorize the use of recording devices at medical examinations, and we find that their use is not otherwise required by law. Thus, denial of the use of such a device would not be an adequate reason to refuse to submit to examination.HELD: Neither the Constitution, the Administrative Procedure Act, nor VA statutes and regulations provide a right to counsel at medical examinations scheduled by VA for evaluation of beneficiaries, including psychiatric evaluation. As, under the relevant constitutional, statutory, and regulatory provisions, there is no "right" to be accompanied by an attorney to this type of agency activity, refusal to participate unless accompanied by an attorney may be considered a failure to report for purposes of VA regulations at 38 C.F.R. § 3.655 providing for discontinuance of benefits for failure to report for examination. Similarly, a beneficiary may not insist on using a recording device at a VA medical examination, and refusal to participate due to absence of such a device may be considered a failure to report for purposes of VA regulations governing termination of benefits. VETERANS ADMINISTRATION GENERAL COUNSEL Vet. Aff. Op. Gen. Couns. Prec. 04-91 PREC-04-91.pdf
  6. Hey y'all, new guy here. Was an infantryman. I was hoping someone could answer this one for me as I am pretty green. I filed an FDC about 6 months ago. I got a call from c and p folks in Columbia MO Va and they scheduled 2 exams for physical injuries suffered. There was no call for my PTSD contention. I have been diagnosed for PTSD from a VA psychiatrist already (with the diagnostic codes) and am seeing a VA psychologist as well and am on 3 different va meds for it. Will I still need a c and p exam or can they rate me with this info? Also is Behavioral Health seperate in the hospital and should I expect a call later? I appreciate any help I can get on this! Thanks, Kevin
  7. I Finally got a C and P exam for my claims from 2003 which were deferred every since then. my claim was for left hip disorder which while I served I was diagnosed with left and right hip strain. I have a copy of the C and P exam from a month ago. I cant figure out how to understand what all this means. Does the veteran now or has he ever had a hip condition Yes 2003 Diagnosis hip strain side both Does the veteran report flair ups yes ROM Measurements for right side right hip extension 20 right hip external rotation 30 normal end point 45 painful motion begins 30 right hip abduction 25 normal end point 50 right hip adduction 15 ROM left side left hip extension 15 painful motion begins 15 Is adduction limited so veteran can not cross legs yes left leg left hip internal rotation 25 normal ends 45 painful motion begins 25 left hip external rotation 25 normal ends 45 evidence of painful motion begins 25 left hip abduction 25 normal is 50 painful motion begins 25 left hip adduction 15 normal is 25 painful motion begins 15 is the veteran able to perform repetitive test 3 times no because of pain any additional limitation of range of motion of hip following testing yes functional impainment to hip or thigh yes less movement weakend movement painful movement Opinion condition is at least as likely as not due to or a result of service in the army Where do I stand?
  8. Hello I put in for TDIU and the case is currently under review. The question I have is my Mental Health Doctor as well as the head of the clinichas placed a GAF score of 50 and have also claimed under axis III it is military related. Will I still need a C + P or will they feel it is not needed as the Head Doc says it is Military related?
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