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Inaccurate C&P exam


Devildoc2448
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I had an inaccurate C&P exam for depression on 18 February 2020. The examiner basically minimized my diagnosis, symptoms and ability to work. Her report was the very opposite of what my psychiatrist and therapist have diagnosed. I’ve been seeing them for 3 years, so I feel they know my illness better. The C&P exam was made available in my healthe vet record on 6 April and the board made their decision on 7 April. I had no chance to disagree with the raters findings. 
The day I did read the exam report and noticed the differences and a incorrect ICD coding, I called my therapist and she got the rater to make an addendum with the correct ICD code. I don’t know if the VA reviewer got to see the correction because they made their decision the next day. 
How can I dispute the C&P exam?  Is it  possible to request another C&P exam?

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1 hour ago, Devildoc2448 said:

I had an inaccurate C&P exam for depression on 18 February 2020. The examiner basically minimized my diagnosis, symptoms and ability to work. Her report was the very opposite of what my psychiatrist and therapist have diagnosed. I’ve been seeing them for 3 years, so I feel they know my illness better. The C&P exam was made available in my healthe vet record on 6 April and the board made their decision on 7 April. I had no chance to disagree with the raters findings. 
The day I did read the exam report and noticed the differences and a incorrect ICD coding, I called my therapist and she got the rater to make an addendum with the correct ICD code. I don’t know if the VA reviewer got to see the correction because they made their decision the next day. 
How can I dispute the C&P exam?  Is it  possible to request another C&P exam?

Unfortunately you are going to have to file an appeal, HLR, BVA. Your call on the route you take but you can take the C & P exam to your treating therapist and have them to write up a response to it.

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Devildoc2448 Unfortunately, I agree with pacmanx1. You have some good things going for you. The rater saw you for an hour (?), your docs have been seeing and treating you for many sessions over a 3 year period. They know you much better. So they should have an equal or stronger opinion on your condition. You need to review their evidence and be sure it is strong enough to get the rating you deserve. If not, get additional evidence. Don't give up; improve on what you have if you can and then appeal.One way to do it is to get a rating, even if it is only 10 or 30% first, and then appeal that for a higher. You might be able to accomplish that with the HLR without additional evidence. But appeal and keep your EED going.

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You don't have to file an appeal, you can file a supplemental and have them re-review. Its faster than a full appeal, and the SOC afterwards is appeal-able if necessary just like normal. 

Form 20-0995

Do NOT file a HLR form 20-0996- that one does NOT consider new evidence, only evidence of record at the time the claim was decided. 

https://www.va.gov/decision-reviews/supplemental-claim/

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Yes, you can challenge a C and P exam: https://cck-law.com/blog/how-to-challenge-va-cp-exam

Filing a supplemental claim is unlikely to result in the effective date you want, "unless" the new evidence you submitted meets the criteria in 38 CFR 3.156, where appealing would preserve the effective date.   Otherwise, there would be no need for appeals, everyone would just file new supplemental claims.    Filing an appeal is the way to preserve your effective date.  

You posted:  

Quote

I had no chance to disagree with the raters findings. 

Yes, you have a chance to disagree with the raters findings, by filing a timely NOD (if it was a VARO decision) or NOA (if it was a BVA decsion).  

 

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Supplemental claims filed within 1 yr of the decision retain the effective date of the original claim. 

 

New evidence is mentioned under 38 CFR 3.156 as part of a original claim and effective date, but the definition of what is new evidence for  specific for a supplemental is 38 CFR 3.2501. It says basically the same thing, but its wording might be easier to understand than the other one. 

 

https://www.law.cornell.edu/cfr/text/38/3.2501#a_1

 

§ 3.2501 Supplemental claims.

Except as otherwise provided, a claimant or his or her authorized representative, if any, who disagrees with a prior VA decision may file a supplemental claim (see § 3.1(p)(2)) by submitting in writing or electronically a complete application (see § 3.160(a)) on a form prescribed by the Secretary any time after the agency of original jurisdiction issues notice of a decision, regardless of whether the claim is pending (see § 3.160(c)) or has become finally adjudicated (see § 3.160(d)). If new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record. If new and relevant evidence is not presented or secured, the agency of original jurisdiction will issue a decision finding that there was insufficient evidence to readjudicate the claim. In determining whether new and relevant evidence is presented or secured, VA will consider any VA treatment records reasonably identified by the claimant and any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed (see 3.103(c)).

(a) New and relevant evidence. The new and relevant standard will not impose a higher evidentiary threshold than the previous new and material evidence standard under § 3.156(a).

(1) Definition. New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed.

(2) Receipt prior to notice of a decision. New and relevant evidence received before VA issues its decision on a supplemental claim will be considered as having been filed in connection with the claim.

(b) Evidentiary record. The evidentiary record for a supplemental claim includes all evidence received by VA before VA issues notice of a decision on the supplemental claim. For VA to readjudicate the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision.

(c) Duty to assist. Upon receipt of a substantially complete supplemental claim, VA's duty to assist in the gathering of evidence under § 3.159 of this part is triggered and includes any such assistance that may help secure new and relevant evidence as defined in paragraph (a) of this section to complete the supplemental claim application.

(d) Date of filing. The filing date of a supplemental claim is determined according to § 3.155, with the exception of the intent to file rule found in § 3.155(b) which applies to initial claims.

(Authority: 38 U.S.C. 501, 5103A(h), 5108)
[83 FR 172, Jan. 18, 2019]
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There are, of course, differences between filing a NOD and filing a supplemental claim.  For example:

1.  Filing a Nod allows you to go direct to the BVA, filing a supplemental claim "keeps" it in the VARO at least for the time being.  

2.  The VA has apparently "lowered" the threshold for "new evidence", changing it from "new and material" evidence to "new and relevant evidence".  New and material evidence suggests that, in order to meet this threshold the evidence be "outcome determinative" (material), while new and relevant evidence need only be "relevant" not outcome determinative.  

The differences here come into play especially regarding dates, with the old law requiring the new evidence be relevant.  

 

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