C&p Done Without C-file -

[vetwife]

My husband just had C&P exam a few weeks ago.

It went very badly & he knew it would be a bad C&P report.

We just got it, & It is ! It is false & completely innaccurate.

Prior to the exam he found out is was a NP doing the exam. He requested a Dr & was denied. He call the RO & they told him they had nothing to do with that & he need to call VAMC. He called them again & was still denied having a DR do the exam & was told he must go & that an NP was sufficient for this exam.

Not having a choice - he went...... The "examiner" did not have his C-file nor any of his records. She asked him very few questions & filled out the entire 35 page questionaire by herself - with little information from him & no records in front of her. (She told him she didn't have the file ) and on the way out he talked to the office person who confirmed that the RO had just sent the file out that day & they did not have the C-file.

I need advise on how to get this C&P thrown out & a new one (by a DR with file present) ordered.

[rentalguy1]

PR...here is what I have so far:

A previous thread on hadit where the matter was discussed. It wasn't resolved here.

38 CFR 3.326 covers examinations. Nowhere does it specifically spell out that c-files must be reviewed.

38 CFR 3.327 covers re-examinations. Again, it doesn't specifically spell out that c-files must be reviewed.

38 CFR 4.41 covers history of the injury. Nothing specific to c-files here.

38 CFR 4.42 covers complete medical exams of injury cases. Nothing specific to c-files.

The C&P Service Clinicians Guide is just that; a guide. It is not US Code (law), nor is it a Federal Regulation (enforcement of the codes). It simply is a reference for the examiner to learn from. The actual exam worksheets are computerized now, and they even differ to varying degrees from what is found in the Guide.

I think that the only time the C-File is required is when the VARO specifically requests a medical opinion. That usually isn't the case. You have to remember that a C&P exam isn't for treatment, therefore a complete review of the patient's history written medical history isn't required. A C&P is solely to determine whether or not a claimed disability exists and to what extent, whether or not it was caused/aggrivated by service, and in the case of injury claims, whether or not the injury was traumatic, or congenital in nature.

Please, by all means, if you have an authoritative document that states the vet's c-file must be reviewed, post it. In all of the re-exams that I've had, my c-file has never been available to the examiner. Consequently, due to the lack of the c-file, and, moreover, my lack of knowledge on how the system worked at that time, none of the re-exams were favorable to me, and one in particular was adverse. I would love nothing more than to have a CUE claim against them on these grounds, but I just don't think that a case for that exists.

I am searching BVA cases to find something more specific right now. If I find something I will post it.

[rentalguy1]

From BVA Docket # 99-12-699, Decision Date 11/03/00:

"Accordingly, the Board finds that, as the revised version of

38 U.S.C.A. § 5107 eliminates the "well-grounded claim"

requirement, this revision is more favorable to the claimant

than the prior provisions of 38 U.S.C.A. § 5107 (West 1991 &

Supp. 2000) and is therefore applicable under Karnas. In

view of this revision, the Board observes that at the time of

the September 1998 VA examination, the veteran's service

medical records and C-file were not available for review. As

such, the Board concludes that the veteran should be afforded

a current VA examination, with all records being made

available to the VA examiner for a determination of the

etiology of the veteran's currently diagnosed gastric

leiomyoma, to include a determination as to whether the

veteran's gastric leiomyoma is etiologically related to his

exposure to herbicides during service."The BVA remanded this case due to the lack of availability of the c-file to the examiner, which was needed in order to establish the etiology of the claimed disability. In other words, the VARO should have requested a medical opinion in this case, because service connection had yet to be established.

[Guest jangrin]

I for one appreciate the time and effort you are putting into this. I do feel that the post I made is diffinately pro-veteran on the PTSD issue and the C&P examiner having the c-file.

Doing an exam that denies a vet service connection when other professionals are of the opposite opinion, really does make the doctor doing the exam look a bit foolish to say the least.

I have copied this and sent it in with the NOD. I did also mention a possible CUE because of the utter disregard for history and current treatment records. Especially when it states they are to havre the C-file. You may call it a recommendation I feel it is more like a directive. We'll see what the VA does with it. I will post when something happens one way or the other. I hope it goes quick but you know how it is.

The only way we will find out for sure is to challenge those things we feel are injustices. It is not always black and white. It is about protecting the veterans rights. The VA is suppose to help the veteran in the claims process not put up road blocks. I don't think I would want to be treated by a doctor who choose not to review my medical history before giving his opinion and plan for my care. Informed decisions and opinions not guesses is what we deserve.

Hope this helps-jangrin

Just my opinion-Jangrin

[rentalguy1]

Jangrin...I must have read your earlier post too quickly. The information that we are looking for is right there:

"e. When to Send the Claims Folder With an Examination Request Do not send the claims folders to examining facilities with the examination requests except in circumstances that may require claims folder review by the examiner.

Note: The claims folder must be sent for the examiner’s review in any case involving

• a request for a formal medical opinion

• an initial claim for service connection for posttraumatic stress disorder (PTSD), or

• a Board of Veterans’ Appeals remand."

Those are the three cases where it must be sent. All others are not required, escept for, and it has already been stated, when there is a need for the VARO to request a medical opinion.

[Guest jangrin]

Rentalguy, thats what I thought, but is this CUE? or is this just a directive and then they can push aside? I sent it in with the NOD but brought up that I thought is was a CUE. Unfortunately, it will be a while as this is not going to fast. My husband has to many issues going on at once. Time will tell.

I just hope we can make something happen so Vets don't get messed up on the PTSD claims by doctors who want jobs more than they want to help vets.Especially the OIF/OEF vets as they spend multiple tours and then come home and need help to deal with life as we know it. And of course the RVN vets who still don't always get a fair assessment of thier lifelong PTSD problems that everyone wants to sweep under the carpet.

Thanks for your persistance.

Jangrin

[rentalguy1]

Well, that exerpt is from M21-1MR, which is a manual, and not a law or regulation, so I don't think that it is a CUE. But, it can definately be reversed at the VARO level during the NOD/de novo review, and it can definately be remanded at the BVA level, which will spell out in the remand order that the c-file MUST be reviewed. SO, even though it's probably not a CUE, you will win in the sense that you will get your c-file reviewed by the C&P examiner.