Reporting a bad C&P exam/examiner

[El Train]

I put in for an increase for PTSD with TBI (new). I had an outside IME/DBQ done by a Psyc. DR. and a general MD with the increase request.  The Psyc. Dr. was pretty critical of the first PTSD C&P exam as being very shallow and incomplete.  The VA sent me to QTC for another C&P.  I made the mistake of giving the outside Psyc eval. to the C&P Dr. doing the increase exam.  She was not amused (her words) with his critical IME/DBQ.  Her exam reflected it.  A week later I had another VA QTC TBI (2.5 hours).  He also covered stressors and PTSD.  Very different outcome from the prior week.  In fact it destroyed hers with facts and tests.

Bottom line, she crafted her C&P as to not agreeing with any current, past, diagnosis or treatment.  Also, a liar (claimant reports as an unreliable reporter).  Now I'm not amused.

What is the best way to report her less than factual C&P.  I pretty much want them to throw it out, use my evidence or re-do the whole thing.  Not sure why that would be necessary.  No, I have not gotten a decision on the PTSD increase or TBI approval.  The TBI shouldn't be an issue whatsoever.  But I've had the VA side with the more critical C&P's vs. outside Dr's opinions.

Appreciate any advice.

[vetquest]

I would first contact the RO C&P office.  I would ask for another exam and also write a statement about claimant being and unreliable reporter.  This basically states that you cannot be trusted to report facts as they are, malingerer or exaggerator.  This is something that I have not seen before in a C&P, I have been called a drug addict and malingerer but never been called an unreliable reporter.  In fact on my BVA win the BVA stated in several places that I was a reliable historian.  

The following is information that you can use to appeal an unsatisfactory rating: 

The Benefit of the Doubt doctrine is outlined in 38 USC § 5107(b) and 38 CFR § 3.102.  Specifically, it states, “by reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.”  Essentially, this means that if there is an equal balance of positive and negative evidence of a veteran’s entitlement to a benefit, VA is supposed to rule in favor of the veteran.  This is further established in 38 CFR § 4.3, which states, “When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.”

 

3.2. Non-Adversarial System

There is a "basic principle of the VA claims process that claims will be processed and adjudicated in an informal, nonadversarial atmosphere, and that to ensure a just outcome under this rubric VA will assist claimants in many ways."  Evans v. Shinseki, 25 Vet. App. 7, 14 (2011); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (stating that although the arguments made in a VA Form 9 appeal to the Board often frame the nature of that appeal: "there is nothing magical about the statements actually on the Form 9, given the VA's non-adversarial process.").  A claimant for VA benefits has avenues to seek redress before the Secretary within the non-adversarial VA system (motions for reconsideration at the Board, motions alleging clear and unmistakable error in Board or VARO decisions, requests for vacation of Board decisions based upon denial of due process, and even requests for equitable relief from the Secretary have long been available).  See 38 U.S.C. §§ 503, 5109A, 7103, 7111; 38 C.F.R. §§ 20.904, 20.1001, 20.1400.