Va Med Records And C & P Exams

[vaf]

I'm looking for the statute or regulation that discusses the requirement that the C & P examiner already have read the veterans file, and in fact, has the veterans file present during the C & P. Can anyone help, I think it's in 38 USC, Section 5107, but I'm having problems finding it and need it by Tuesday next week.

Will keep looking, but if anyone has it bookmarked, please let me know.

Thanks!

[vaf]

Never mind, found it! Here it is if anyone else is interested.

http://www1.va.gov/ogc/docs/Prc20-95.doc

[wallyg]

Vicki,

With the new rules, that may have been superceeded!

In any case, the VARO will quote the last paragraph at you, when you protest a C&P on that basis.

[vaf]

I'm thinking it goes back to what "thorough and contemporaneous" means when the examiner hasn't read the file, doesn't have the file, and is expected to comply with that requirement. How can an exam be thorough if the examiner is operating under an isolated snapshot of a much bigger picture.

I wonder if it has been superceded, do you know? Thanks!

[john999]

This would be a good reason to bring the most recent and strongest evidence with you to the exam and give them to the doctor.

[vaf]

A friend referred me to a CVA case No. 03-1623, Longstreet v. Principi, dated more recently, October 15, 2005. Part of the veteran's argument was that the Secretary of the VA failed to provide him a competent examination because his claims and medical files were not present at the exam. This made it an incomplete exam under 38 CFR 4.1 and 4.2. The relevant paragraph, I think, is below.

" Regarding the December 2002 medical exam, the record indicates that Mr. Longstreet was referred for this exam with regard to his claim for a higher disability rating for his dermatitis (Medical report states priority purpose as "Increase.") and not for his chloracne claim. Moreover, the Board never cited to the December 2002 medical report in addressing Mr. Longstreet's chloracne claim and cited to that medical report only with regard to his claim for an increased disability rating for dermatitis, which was remanded. The Board also correctly recognized the importance of the medical examiner's having the complete claims file for a disability rating examination when it issued its remand order with regard to the dermatitis claim and by explicitly directing the medical examiner to review the case file and state in his report that he had done so. "

I see this as a rather big deal, especially when an exam like this occurs in an effort to reduce a rating. This is not to dispute the need for an IMO, we're lining up one of those, too. However, I think every time an exam is performed, the veteran should ask if both files are present, and if the examiner actually read the relevant history behind the exam being performed. If not, the veteran as a right to contest the validity of the examination.