Claims denied without C&P Examination

[lotzaspotz]

My husband filed claims in late Jun 2016 for GERD and ED, secondary to meds he's been taking a very long time for service connected disabilities  (pituitary tumor residuals, HTN included in the pituitary residual award, adrenal disorder, and IHD blood thinners).  With his claims, we sent records from his treating non-VA doctors, a list of all his prescriptions, as well as where they're being filled (most from the VAMC here) and Rx number, plus documentation from the online sites for each specific drug that lists the possible side effects.  We found out today via Ebenefits that both were denied and this was done without a C&P exam.  We haven't received the decision yet, so once we get it, then file the NOD, I'll then see about getting IMO's from those same doctors once I can get a look at an SOC.

I'm thinking they screwed up in two ways:  assuming the conditions were strictly age related, and allowing a non-healthcare professional (layperson who was a rater) to evaluate on paper medical conditions.  38 CFR is supposed to prevent either from happening.

This is the first time in 23 years that he's ever been denied without first undergoing a C&P examination.  Have any of you had this happen with your initial claim(s)?  

Edited September 18, 2016 by lotzaspotz

[broncovet]

Your VARO has discretion on whether or not to order a C and P exam.  If there is sufficient evidence to grant the claim, then a C and P exam would not be needed.  However, if there is insufficient evidence, the VA has latitude of either ordering a C and P exam or just denying it.  

It used to be that claims would be denied because they "were not well grounded".  While this term went away several years ago, a Veteran still has to meet a certain threshold before an exam will be ordered.  

Let me give a couple  examples.  If the Veteran does not have the requisite discharge, then a C and P exam will be moot, and it will be denied regardless so no exam.  

If the Veteran has no diagnosis, and no evidence of a condition, then no exam will likely be ordered.  Again, VA has discretion here.  

When the "well grounded claim" was quashed, I think with the VCAA, then this "lowered the bar" for Veterans to at least be considered with a C and P exam.  However, there still is a threshold degree of evidence that should be provided to substantiate the Veteran meets the Caluza Triangle. Of the three Caluza (aka Hickson elements)  1) current diagnosis, 2) in service event or aggravation and 3) nexus, ONLY the numbers 1 and 3 can be fixed with a C and P exam.  YOu see, a C and P exam wont provide evidence of an in service event or aggravation, because that has already passed.  The reason is that in service event has already passed, and the Veteran's lay testimony that he, indeed, had an inservice event can not be verified by the C and P examiner.  So, if there is no in service event, the VA just denies, as a C and P exam wont fix this.  

A C and P exam "could" provide a diagnosis, and it "could" provide a nexus, tho.    However, you rarely, if ever, see a C and P examiner provide a diagnosis in the first instance.   The C and P examiner may state, "a diagnosis of depression was made (by another physician) in 1995", but he will almost never diagnose a disorder unless other doctors have already made such a diagnosis.   This said, lets say your hubby was prescribed Prozac by a mental health specialist who prescribed it, without specifically stating, "I diagnose mdd".  This happens a fair amount of the time.  YOur doctor will sometimes TREAT a condition without specifically stating that he diagnoses MDD.  In this instance, a C and P exam is clearly indicated, just to "clarifiy" that the previous doctor who prescribed Prozac was not doing so "off label" to treat a different condition other than MDD.  (Doctors sometimes prescribe medications "off label", that is, for condtions that the medication was not listed for, in the PDR or by the drug company).  

This gets us to nexus.  The VA "should" call for an exam if the Veteran has a diagnosis and an in service event, but no doctor bothered to actually state a link in a form required by VA.  Private doctors often say, "This condtion MAY have been caused by xx".   While this is almost certainly true, that statmenet is insufficient for VA to establish a nexus as the term "may" is speculative and VA wants a definative, that is, whether its more likely than not that military service caused your malady.  

Whether or not a C and P exam is called for, is a finding of fact, that is reviewable by the BOard.  The board, can say, for example:

Dr. A stated that he could not say for sure whether or not the PTSD was caused by military service.  The Board finds that a new exam is needed by a board certified PTSD specialist ......

 

 

[broncovet]

By the way, appealing on the bases that the VARO failed to call for a C and P exam is a rather interesting appeal tactic.   Unless, in the board's judgement, there is "no possibility of substantiating the claim" with a C and P exam, then you will ususally generate a remand for a c and p exam.  

If you read the BVA chairmans' report, you will see that a remand is the most common result for a board decision..about half are remanded and denials and awards share the other half.    I think a good part of remands are for a c and p exam.  I mean, gee, what is the board going to do?  I remand this claim for a more favorable rater?  Of course, if there is missing evidence (likely), the board should remand it and have that missing evidence considered, too.  

[Buck52]

I think its BS and a waist of $$$ to have to get a C&P if you have a well grounded claim, Locked and Loaded concrete evidence.

I think the VA sends us to  C&P hoping that the examiner will find something to deny the veteran claims.

Not that many Veterans get by without a C&P

[Buck52]

If a veteran don't have a in service event record   a C&P won't help.

I have to disagree with that.....even if a veteran don't have a in-service event as record ,  he can use his lay statement and provide the time /date within 10 days of the event  with duty records or buddy statements and as close to the date of the event happen , if it's for PTSD Stressor's he can use in fear for his life and why  and have evidence of where he was the event occured using the lay statment and buddy statments

 As the C&P Examiner is suppose to address this in the exam

[Navy4life]

On 9/17/2016 at 8:43 PM, lotzaspotz said:

My husband filed claims in late Jun 2016 for GERD and ED, secondary to meds he's been taking a very long time for service connected disabilities  (pituitary tumor residuals, HTN included in the pituitary residual award, adrenal disorder, and IHD blood thinners).  With his claims, we sent records from his treating non-VA doctors, a list of all his prescriptions, as well as where they're being filled (most from the VAMC here) and Rx number, plus documentation from the online sites for each specific drug that lists the possible side effects.  We found out today via Ebenefits that both were denied and this was done without a C&P exam.  We haven't received the decision yet, so once we get it, then file the NOD, I'll then see about getting IMO's from those same doctors once I can get a look at an SOC.

I'm thinking they screwed up in two ways:  assuming the conditions were strictly age related, and allowing a non-healthcare professional (layperson who was a rater) to evaluate on paper medical conditions.  38 CFR is supposed to prevent either from happening.

This is the first time in 23 years that he's ever been denied without first undergoing a C&P examination.  Have any of you had this happen with your initial claim(s)?  

Lotz;

The first thing is to wait for the denial letter to see exactly the wording of the denial and what evidence they used for the denial.  Once you have that, then you can file the NOD if you think his claims warrants the NOD.  The reason I say this, is that you must prove that the GERD and ED are secondary to the med's he is taking for already S/C contentions.  It would be best to get an IMO/Nexus letter from his treating physician for this. Not all VA doctor's will do this but there are some.

Secondly, there is no where in the CFR that requires a C&P exam to be done for a claim(s) submitted.  This will be interesting to see why he was denied w/o an C&P exam.  The decision letter should state your denials and show the evidence they used as I stated above.

Your question of his "age" could play a factor in his ED for sure but not a flat out denial.  How old is your husband?  How long has he had the ED?  

When you do file the NOD, I would highly advise you to state in your NOD you are requesting an "in-person" DRO hearing whether it is formal or in-formal.  If you go the in-formal route and the denial is further upheld, the SOC will state that you are allowed a formal hearing before certifying to the BVA.

Again, you will receive the decision letter soon and it is not an SOC FYI

 

[lotzaspotz]

Right, it's the decision letter we're waiting for, then we'll file the NOD and wait for the SOC.  My husband (he's 67) was granted SC for sleep apnea secondary to meds taken for service connected conditions, prior to the existence of DBQ's in 2007.  We provided the same type of evidence, that is, a prescription list, clinical evidence of secondary effects of those meds that included sleep apnea, with formal diagnosis as we did this time, and there was no C&P performed prior to the grant.  I know times have changed and we didn't expect as smooth a process as he went through back then, but we at least expected a C&P.  As I said, the conditions for which he's been prescribed all these meds are service connected (in lieu of occurring while active duty) - the first part of the Caluza triangle.  We have sent doctors records that he has been diagnosed with conditions that require ongoing treatment - the second leg of the triangle.  We have sent evidence of a clinical relationship between these meds and their side effects - the conditions for which he is being treated - the third leg of the triangle.  

Once I get the paperwork, that will tell me a lot more and in the meantime, I'll find out if his doctors are willing to sign DBQ's or render IMO's.  It will be interesting to see if his age is going to be cited in the rationale for denial without ever having been personally examined.  38 CFR subsection 4.19 states age cannot be considered as a factor in evaluating service connected disability (except for purposes of pension), and 3.159 states that laypersons cannot render medical conclusions.  As often as the VA reminds disabled veterans of that fact, it also applies to VA raters who have no medical background or credentials.  

Thanks, everybody!