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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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sleeper692

Are There Specific Rules Governing C&p Exam Procedures?

Question

What I am looking for is a specific code, such as something buried in the CFR that describes what an examining physician must do during a C&P examination. Are there specific requirements spelled out that must be taken, such as "note history, note whether c-file was reviewed and conduct a comprehensive physical examination....," etc? I've searched but I couldn't find anything definitive but I may not be looking in the right place or know exactly what I should be looking for.

I know there are various worksheets for certain C&P exams but they are by no means all inclusive. At least not from what I've seen from the link on the VA web site. I'm looking for specific codification requiring a physical exam (or not) of the affected areas or a general exam in lieu of a specific exam. In the event that my recent C&P exam is used to deny my claims, I'm curious if I will have grounds to challenge the competency of the exam if it comes down to that.

Edited by sleeper692

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4 answers to this question

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The Clinician’s Guide [2002] and any of its parts (worksheets) are intended solely as a guide for clinicians, and it is not

legally binding on a clinician to perform all portions of the examination protocol. However, there are

requirements for certain examinations, e.g., specific audiologic testing for hearing impairment and a METs

measurement by stress testing, or, if not feasible, a METs estimate, for certain heart diseases that must be

provided by the examiner to make the examination sufficient for rating purposes. A clinician should understand

the specific questions being asked by the Veterans Benefits Administration (VBA) or the Board of Veterans’

Appeals (BVA) for rating purposes and then determine the type of examinations and which clinicians should

perform them. Clinicians are expected to use good clinical judgment in deciding which examinations are most

appropriate to answer the specific questions asked, and they should utilize appropriate textbooks of medicine as

guidelines when making diagnoses. http://www.warms.vba.va.gov/admin21/guide/cliniciansguide.doc

Note: Search BVA for "examination + inadequate for rating purposes"

For example:

In Tucker v. Derwinski, 2 Vet. App. 201 (1992), the Court noted that the failure to review the record rendered the examination on which a reduction was based inadequate because the disability was not viewed in relation to its history, citing to 38 C.F.R. § 4.1. The Board points out that it is not the failure to review the Veteran's claims files per se that renders the examination inadequate, but rather whether the examiner is familiar with the disability in relation to its history. See generally Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In this case, the Board finds that the failure to review the claims files did in fact render the examination inadequate. The examiner did not mention the history of problems encountered at the January 2008 examination, and thus it is unclear whether those same problems were again present and affected the results. More importantly, the examiner expressed his understanding that the Veteran did not have any history of tinnitus. Service connection is in effect for tinnitus (effective May 28, 2004), and the Veteran has testified that it is the tinnitus which caused the problems noted at the January 2008 examination. At his hearing, he suggested that the interference from tinnitus may have led to the March 2008 examiner prodding him inappropriately to perform better than he would have naturally.

Inasmuch as the history of the problems encountered at the January 2008 examination and the interference with testing of the Veteran's tinnitus were clearly important for an examiner evaluating the severity of the hearing loss, the March 2008 examiner's failure to review the claims files rendered that examination report inadequate for rating purposes. The Board therefore finds that the March 2008 examination can not serve to demonstrate that the Veteran's hearing loss had improved.

Given the fatal deficiency in the March 2008 examination report, as well as the inadequacy of the January 2008 examination report, there was no evidentiary basis to conclude that the Veteran's hearing loss had improved. 38 C.F.R. § 3.344©. There was no other evidence on file at the time of the reduction that suggested any improvement in the disorder. Consequently, there was no basis for the reduction, and the 20 percent rating is restored, effective from the date of the reduction.

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M21-1MR http://www.benefits.va.gov/WARMS/M21_1MR3.asp

Chapter 3 - Examinations

Table of Contents8/3/11Section A - Examination Request8/3/11Section B - Scheduling Examinations8/3/11Section C -Control of Examinations8/3/09Section D - Examination Reports8/3/11Section E - VA Medical Facilities12/29/07

Chapter 4 - Rating Specific Disabilities

Table of Contents8/3/11Section A - Musculoskeletal Conditions8/3/11Section B - Conditions of the Organs of Special Sense8/3/11Section C -Infectious Diseases, Immune Disorders, and Nutritional Deficiencies12/13/05Section D - Respiratory Conditions8/3/11Section E - Cardiovascular System Conditions8/3/09Section F- Endocrine Conditions12/29/07Section G - Neurological Conditionals and Convulsive Disorders8/3/11Section H -Mental Disorders8/3/11Section I - Conditions of Other Systems8/3/09

Chapter 5 - Evaluating Evidence and making a Decision

8/3/11Table of Contents

12/13/05

Chapter 6 - The Rating Decision

Table of Contents8/3/11Section A - Intermediate Rating Decisions and Deferred Issues4/4/2011Section B - Determining the Issues8/3/11Section C - Documenting the Decision8/1/06Section D - Codesheet Section12/13/05Section E - Coded Conclusion12/13/05

Chapter 7 - Examinations

Table of Contents8/3/11Section A - Finalizing the Rating Decision8/3/09Section B - Reviewing the Rating Decision8/3/11

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In your part regarding "The Board points out that it is not the failure to review the Veteran's claims files per se that renders the examination inadequate, but rather whether the examiner is familiar with the disability in relation to its history. See generally Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008)." The last part "whether the examiner is familiar with the disability". This is the part were I believe vets are getting shafted. When, I had my Parkinson's C&P examination at QTC they had some young intern GP come all the way from the Panhandle of Texas to San Antonio. No training Parkinsons. Had to have an Office Clerk tell him what he needs to do next. I guess that is why I have a Lawyer :rolleyes:

Papa

x

x

x

The Clinician's Guide [2002] and any of its parts (worksheets) are intended solely as a guide for clinicians, and it is not

legally binding on a clinician to perform all portions of the examination protocol. However, there are

requirements for certain examinations, e.g., specific audiologic testing for hearing impairment and a METs

measurement by stress testing, or, if not feasible, a METs estimate, for certain heart diseases that must be

provided by the examiner to make the examination sufficient for rating purposes. A clinician should understand

the specific questions being asked by the Veterans Benefits Administration (VBA) or the Board of Veterans'

Appeals (BVA) for rating purposes and then determine the type of examinations and which clinicians should

perform them. Clinicians are expected to use good clinical judgment in deciding which examinations are most

appropriate to answer the specific questions asked, and they should utilize appropriate textbooks of medicine as

guidelines when making diagnoses. http://www.warms.vba.va.gov/admin21/guide/cliniciansguide.doc

Note: Search BVA for "examination + inadequate for rating purposes"

For example:

In Tucker v. Derwinski, 2 Vet. App. 201 (1992), the Court noted that the failure to review the record rendered the examination on which a reduction was based inadequate because the disability was not viewed in relation to its history, citing to 38 C.F.R. § 4.1. The Board points out that it is not the failure to review the Veteran's claims files per se that renders the examination inadequate, but rather whether the examiner is familiar with the disability in relation to its history. See generally Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In this case, the Board finds that the failure to review the claims files did in fact render the examination inadequate. The examiner did not mention the history of problems encountered at the January 2008 examination, and thus it is unclear whether those same problems were again present and affected the results. More importantly, the examiner expressed his understanding that the Veteran did not have any history of tinnitus. Service connection is in effect for tinnitus (effective May 28, 2004), and the Veteran has testified that it is the tinnitus which caused the problems noted at the January 2008 examination. At his hearing, he suggested that the interference from tinnitus may have led to the March 2008 examiner prodding him inappropriately to perform better than he would have naturally.

Inasmuch as the history of the problems encountered at the January 2008 examination and the interference with testing of the Veteran's tinnitus were clearly important for an examiner evaluating the severity of the hearing loss, the March 2008 examiner's failure to review the claims files rendered that examination report inadequate for rating purposes. The Board therefore finds that the March 2008 examination can not serve to demonstrate that the Veteran's hearing loss had improved.

Given the fatal deficiency in the March 2008 examination report, as well as the inadequacy of the January 2008 examination report, there was no evidentiary basis to conclude that the Veteran's hearing loss had improved. 38 C.F.R. § 3.344©. There was no other evidence on file at the time of the reduction that suggested any improvement in the disorder. Consequently, there was no basis for the reduction, and the 20 percent rating is restored, effective from the date of the reduction.

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