C&P Exam: Mentioning Inaccuracies to RO Before Claim is Decided

[FlyHigh1995]

Thank you to everyone who shares information and experiences!

My question: Is it wise for me to attach a memo to my claim detailing the inaccurate info. on my C&P exam since I have proof it’s inaccurate? I just figure it can’t hurt and maybe it will result in me having to avoid an appeal if I can make RO aware of discrepancies now.

I almost feel like I need a camera & microphone to record exams; which I wouldn’t do, it’s probably against the rules...but when medical professionals lie on reports...it’s tempting.  I would like to say she made mistakes, but she blatantly falsified information. Unfortunately, this seems common practice during alot of VA exams.

I recently had a C&P exam with a Nurse Practitioner for a Gerd/Hiatel Hernia increase. I’m currently 10%. I have symptoms for 60%, including occasional vomiting of blood and emergency room visits. I also claimed services connections for a couple of medical issues. After reading the VA examiners responses to the DBQ questions, I noticed she blatantly falsified info. Stating she performed exams she never actually physically did. She stated I hadn’t had labs or endoscopy for a Gerd; which are actually in my records. She checked the “No” box to questions regarding whether or not my disability affected my work, even though I told her “Yes” and I actually went into great detail as to how my work is affected. 

I actually had a non VA doctor (who used to actually be a Comp & Pen Examiner with the Va) fill out DBQs, including one for Gerd. She reviewed my records and put all the right language on DBQ including that she reviewed my SC records and prior C&P exams and statements like “ as least as likely as not...etc...” . I thought Comp & Pens were not necessary if veterans submit completed DBQ from a Non Va doctor.

 I plan to get an IMO if I have to appeal.

[broncovet]

Dont "attach" a memo.  Reason:  Lay evidence is insufficient to "trump" medical evidence on medical matters.  

Only medical evidence can refute medical evidence, and, unless you are a physician, you are not competent to give tests, interpret tests, or even opine if they have been given.  Your c and p examiner should have reviewed your records and  he can offer a medical opinion regarding medical tests you have taken in the past, such as blood tests.  He does not have to give you medical tests in his office to render an opinion, he can rely on previous medical tests to form his opinion.  And, it is an opinion, and, it is not the least bit unusual for even good doctors to have widely different opinions on your conditions.  

Instead there are methods to correct errors in your cfile.  They are:

1.   Get your records amended:  The procedure is here:  https://www.law.cornell.edu/cfr/text/38/1.579

2.  Challenge the competency of the examiner.  While the competency of the examiner  is presumed, you can challenge it.

https://www.attigsteel.com/va-advocacy-skills/va-medical-examiners-competence-presumption-rizzo/

3.  As you already mentioned, refute this evidence with an IMO.  

4.  Go to college and get a medical degree and become an expert and write your own IMO/IME

     Its my opinion that the courts will "reject" lay evidence that conflicts with medical evidence, on medical matters.    Worse, they may even consider your testimony as not credible when it conflicts with medical evidence.  This could bring your entire testimony in doubt.  You dont want to go there.  Its a bad place to be.  Correct your records the right way, as I outlined above, and not with your own lay evidence.  The judge will likely presume your doctors testimony is probative even if the opposite is true.  

 

Edited February 8, 2019 by broncovet

[Berta]

I assume she was contracted out by VES, QTC, or LHI.

Their contact is here under a search.

Call them up and tell them what you told us.

If that does not help, call the WH Hot Line at 1-855-948-2311.

And/or file an IRIS cmplaint.

You certainly seem to have medical evidence that combats the C & P opinion.

You can try to get this fixed sooner than later or be prepared for a possible denial,  a need for a costly IMO, and hopefully not a ride on the VA  hamster wheel.

You said:

 "Unfortunately, this seems common practice during alot of VA exams."

Yes it is and only veterans can change this crap.

The GAO knows this, vet lawyers know this, a Congressman is looking into this issue, but vets themselves have to be proactive when this happens.

This happened to me in 1996, when the VA took advantage of the fact that my husband was dead and they completely manipulated not only a C & P examiners opinion, they withheld probative evidence from him.

Since the veteran could not speak for himself, by then I was the surviving claimant and I raised Hell with the doctor,

only to find out the RO did not give him the most probative evidence he needed.

So it wasn't  his fault but nowadays this crap has become deliberate.

The VA is refusing to release a C & P exam to me because I griped to the WH Ht Line about it.

I won that claim too, under CUE, in less than 3 weeks.

I do not believe anyone with any medical background at all prepared it.

I guess my next step is to contact the IG.

That claim succeeded anyhow.But it isn't the point-why should any of us put up with a C & P exam that is not based on established medical fact in the documented record.

 

 

 

 

 

Edited February 8, 2019 by Berta

[broncovet]

One way to refute a NP exam is with an MD.  It may be in your best interest to find out the name of the examiner, and check to see if her license has been revoked, or if this NP has other legal issues.  There is much here on refuting a bad c and p exam.  

The worst part of VA doing this is that it tends to favor Vets who are wealthy enough to afford an IMO.  

Edited February 8, 2019 by broncovet

[vetquest]

One thing you mentioned is that she said there was no evidence when the evidence was available.  Talk to your representative about this.  I once had a C&P thrown out because the doctor did not read or annotate the evidence of record that was available at the time.  It throws out the impartial status of the examination.

[Galen Rogers]

It seems to be a hit or miss when it comes to the C&P examiners. I went to two different Nurse Practitioners. The first one did not review all of the files in my claim (MRIs) and said her job was to do new DBQs and not review my doctor's DBQs in my claim. So I had denials from her exam. The second one that covered my deferred claims was very meticulous and even reviewed files while I was there with her to validate things were in my SMRs and still current ailments.

[FlyHigh1995]

Thank you for the advice and recommendations! It seems the claims system is set up to deter veterans. They hope you give up after they deny you (I’ve actually been informed of this by a former VA employee).  In the past I just gave up...this time I will appeal and seek help from a VSO or attorney. I hope it’s true that some lawyers only charge 20% of retroactive pay and no other fees. I’ve been told VA pays the attorney directly if claim is won. I know a lot of them offer free consultations and will only accept a case if they think you have a valid winnnable appeal as to not waste the veterans or their time.

But I may be presuming too much...maybe the RO will consider the DBQs I submitted from a doctor more valid than the incomplete/inaccurate DBQ the VA Nurse Practioner submitted. Ebenefits moved my estimated claim decision from Mar to now June. I claimed as a FDC in Dec 2018.

Fighting for benefits is costly & along with my full time job, I will have to get a part time job to cover any IMO or legal expenses if need be. I already spent money on three DBQs. Which were under $300 a piece...which I’m thankful because other doctors/specialist quoted me at $1500 or more & most doctors refuse to fill them out.