10 Tips to Help You Keep the VA C and P Exam in Perspective

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What is that Perspective?

 

It comes down to recognizing that the purpose of the C&P Exam is NOT to convince the Doctor that your injury is service-connected but to let them conduct their Exam and draw their conclusion. 

Ultimately, your current disability is or is not related to military service. Regardless of what the Doctor says or what the VA Rater says, the limitations or symptoms are either unrelated to your time in service. Author Chris Attig VeteransLawBlog.org

 

A doctor's opinion can't change what is or is not. It's just another piece of the puzzle of proof. And the C&P Exam is just another piece of that puzzle. It is not the only piece – but if we view it as such, we often make our claims harder than they should be. And we certainly make them more stressful.

Reprinted here with permission from Veterans Law Blog

#1. Every C&P Exam has 2 Goals.

The first goal is to have the doctor confirm that your injury, disability, or limitations are related to your military service – to prove the Nexus Pillar – and/or to establish the degree you are disabled – the Impairment Pillar.  The second goal is to draw out the  “evidentiary gap” in your claim through a C&P exam. The evidentiary gap is the difference between what is IN the record and how the VA SEES what is in the record.   If you are denied service connection, it is almost always because of an evidentiary gap – and rather than throwing a haystack at the RO and then yelling at the VA for not finding the needle – let the Examiner tell you what is missing by reading his/her opinion.

They tell you what is missing by what they focus hardest on. The key is NOT to provide excessive amounts of information in your C&P exam – keep your answers short and “make” the doctor get into your file to review the evidence. It is THEIR report which shows the evidentiary gap – not your statements in the C&P.  Which brings us to the next tip….

#2: Answer only the questions the doctor asks.

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If the doc asks, “How are you doing”, and you throw the entire history of your claim at her over the next 15 minutes, what happens? She zones out. She doesn’t hear what you are saying, and may find it hard to care about what you are saying. I get emails daily – some are 8-9 pages of micro-detailed histories of a VA Claim. It’s hard to read them.  It’s hard to understand them.  It’s hard to pick up the phone and call that person because I know I will get more facts that I don’t need.

 Listen, I’m really good at doing this work, and while there are some real shit-bird doctors out there, there are some really good ones.  They know how to call out the information they need, to get the facts to understand the situation. So just answer the question you are asked – not the question that you want to answer.  But when you do answer the question, follow Tip #3

#3: Keep it Simple and Basic.

Limit what you say to symptoms and limitations or nexus to brief statement.  If you can’t answer the question “Why is your injury related to military service” in under 20 seconds, you are talking too much.   Here’s a great example of how you might respond to a VA C&P Examiner’s question about nexus: “You should defer to my Claims File as that has my complete position on why my injury is related to my service….but, very generally…..  Because of the in service injury to my right knee, I began to overcompensate and now my left knee needs replacement.” or “I was raped in basic training, and during the rape, my attacker broke my jaw. I now cannot eat or swallow properly.” or “I was diagnosed with prostate cancer while in service.” The more you talk, the more ways an examiner has to deny your claim without ever looking at the file.  The less you talk – the more direct and to the point you are – the more they have to read the file. 

#4: Be Polite and Courteous – and Know What the Examiner has to Deal With.

I’ve said it before – there are some real shit-bird docs in the VA system.  Even if you are a VA C&P Examiner reading this, I think you would agree with me that you can think of a colleagues that is not doing what he or she is required to do. There’s the examiner that comes into the room – grumbly and angry – and tells you that you have five minutes to tell your story. There’s the examiner that will hear something different than what you said – and twist your words to fit his/her medical theory. And there are the examiners that just plain don’t get it – they may not have the medical training needed to draw the conclusion that they are being asked to draw.

All of these examiners have something in common – they are working in an overburdened system that overloads them with information and gives them a minute amount of time to sort through that information. Your C&P Examiner has a short time to talk to you. He or she will have 15-20 (or more) exams to do in a day.  Each of those exams will be for a Veteran with at least 750+ pages of records to comb through.  Sometimes they will have to draw conclusions about complex conditions that they are not trained to handle. And a good bit of the time, they will make mistakes. They will get it wrong.

It’s not the end of the world if they do.  But what is important – in the grand scheme of fixing this system – is that we treat every C&P Examiner with a modicum of courtesy and respect. Say hello. Smile. Be pleasant and courteous.  Know that even if this doctor concludes that there is no nexus between your military service and your condition, it will not be the end of the world.  There are ways to “correct” a bad C&P Exam. And there are other types of opinions that you can use – like the Disability Benefits Questionnaire (DBQ).

Get their name, and talk to them about their background – and after the exam, write  down thorough notes about what happened – good and bad – in the exam.  What did they test? What did they measure? What body parts did the doctor look at – and not look at.
If you are going to legally attack a bad C&P Exam, you will need this information to challenge the methodology, measurements, and conclusions.
And you won’t be able to do this if you start the exam on a bad note.
So – above all – be courteous, civil and concise.

#5:  Don’t Act Like a “Professional Claimant”. 

C&P Examiners do exams – dozens a day – every day. For weeks on end.   When you are exposed to this many Veterans, you start seeing patterns.   Especially if you are a doctor trained to identify and analyze patterns of symptoms and limitations in a medical condition.

Listen – C&P Examiners  can spot the Professional Claimant a mile away. And if they see you as a Professional Claimant, it will taint the exam and the outcome of the exam.

So resist using legalistic phrases, theories, concepts.

Talk like a human being – not a lawyer or a VSO.

Tell the doctor about your symptoms.  Your limitations.

Have a concise statement as to why you think your disability and your service are related.  (Take a look at the first post in this series to get an example of how to put together such a concise statement).

And whatever you do, don’t go off on rants about the VA Process, or complex legal theories, or past errors.

The system is screwed up – we all get that.  But one VA C&P Examiner isn’t going to fix the whole system or remedy every past error in your case.

So keep it simple and basic: talk only about  the symptoms and limitations of your disability, and have a  one-sentence statement about nexus to tell the doctor when you are asked.

#6: Do NOT Advocate to – or Debate With – the C&P Examiner.

C&P Examiners are doctors – not lawyers and not judges.  

Though their opinion will carry some sway – a lot of sway – with the Rater in your claim, in the end it is just an opinion. 

Let them draw their opinion.   If it is negative, or doesn’t fit the facts, there are other doctors with other opinions that the Rater or BVA can balance and weigh to find the truth.

Do NOT try to prove your claim to the examiner.  Most Vets that do try to prove their claim end up overwhelming the C&P Examiner with facts that he or she may or may not be able to process in the moment.  They will overload them with case law and legal language – much of which is irrelevant to the Doctor.

And remember – there is a mortal battle between doctors and lawyers. Since the first lawyer sued the first doctor, they have always had a very cat-and-dog relationship (I say this somewhat “tongue in cheek”).  If you start talking like a lawyer, you are going to shut that doctor off to understanding your medical condition, and I can guarantee that your exam will end with a negative opinion.

Think about it in the context of your most recent job or profession – if someone walked in and started barking all this legalese while telling you how to do your job, what would your reaction be?

You’d feel bullied or attacked. You’d feel insulted and marginalized.  You might zone out on the person talking, and miss what they are really trying to say.  Or you might do whatever you had to do to get that person out of your office, or cubicle, or maintenance bay.

Nobody likes being bullied.  So don’t advocate your claim to the C&P Examiner – it’s not the time and place to advocate for your claim.

It is the time to talk about symptoms and limitations – and to DRIVE the examiner back into your C-File and medical records to study the claim.

Rather than launch into the medical and legal theory of your claim, and spend 15 minutes forcing the C&P Examiner to “zone out,” why not push them to look at the records?

Consider this exchange:

Doctor:  Tell me about your sleep apnea symptoms since you left the military.
     Veteran:  My medical records and claims file detail all of the symptoms – the many apneas throughout the night, my need for a CPAP, the daytime sleepiness problems from getting a good night's sleep – but the bottom line is that since service, I wake up several times each night gasping for air, and the only relief I get is when I wear this CPAP machine.

You got your point across – succinctly.  You pushed the Examiner to look at the facts (if she doesn’t, that will be obvious in her decision).  And you did it concisely and courteously.
Bottom line – the C&P Exam is not the time to be an advocate or a lawyer.
Keep your discussion limited to symptoms and limitations and your one-liner about why you think it is service-connected.

#7: Know What is “At Issue” in the C&P Exam.

In earlier tips, I told you to talk only about symptoms and limitations, or if you had to, have a brief statement (20 seconds and 1 sentence) that explains why you think your condition is service-connected. But this begs the question – how do you know what will be discussed in your C&P Exam? This comes back to knowing the 4 Pillars of a VA claim.  Your C&P exam will invariably involve issues in only 2 of those pillars: diagnosis, nexus (Pillar 2), or impairment rating (Pillar 3). You can read about all 4 Pillars by clicking here. If your exam is for a condition that has not been service-connected,  it is a good chance that it is either a “nexus” or a “diagnostic exam.”

Let’s talk about the diagnostic exam. Remember that the VA has a Duty to Assist.

While I always tell Veterans not to confuse the “Duty to Assist” with “Actual Assistance,” there is one scenario where I think the VA does a good job of assisting Veterans in their claims.

That scenario arises if you have not yet had your medical condition diagnosed – in certain situations, the VA is required to send you for a Diagnostic Exam to diagnose your medical condition before a decision can be made about service connection or impairment rating.   If, however, there is no reasonable possibility that the condition could be service-connected even if diagnosed, the VA does NOT have to send you for a Diagnostic Exam.

If your exam is not diagnostic, then you can be sure that the doctor will want to talk to you about “nexus” and the “impairment rating” criteria.

So here’s what you should do – first, prepare your brief statement as to why you think your condition is related to military service – keep it short and sweet (see Post #1 for a great example) and remember that the goal is to force the Examiner into the C-File to study your medical and military service records.

Next, look up the rating criteria in 38 CFR Table 4 to determine what factors the doctor will want to know when deciding on your rating percentage.

Click here to learn how to find out what your Impairment Rating criteria are.  Focus on these symptoms and limitations in your discussion.

Lastly, if you have enough time before your exam, prepare a summary of your medical records for the doctor to review – even if he or she already has the C-File.

I explain exactly how to do this in my Training package – How to File a VA Claim.

In that video, I will teach you how to assemble and organize the medical evidence that proves your claim for service connection by using my unique “VA Claim Map.“

It’s not hard to do and will help you organize your claim.  Many doctors have appreciated the summary of the claim that we sometimes send with our clients to C&P Exams.

#8: If you talk about your condition, paint a picture.

When I tell my clients this tip, I tell them to think of “Toilet Bowls.”

I had a client going in for a C&P Exam to re-evaluate the impairment rating on his knee condition. The prior VA Examiners had never considered the “instability” in his knee joint when low-balling his rating in the past.  So we knew this exam would focus on the instability of the Veteran’s knee.

In our prep for the C&P Exam, I asked my client to describe his knee instability.  Here’s the story he told me.

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“When I use the restroom at work, I cannot get off the toilet bowl without help.  I tried, but I broke the toilet paper rack because it could not support my weight without breaking.  I was laying on the floor in my own piss while my co-workers helped me stand up and get my pants on. I have this problem at home and in public restrooms everywhere – I cannot stand up off the toilet on my own because my knee is so weak and unstable.” 

That story is particularly effective in describing problems with  knee stability.  Why? Because the Veteran painted a picture that used a toilet bowl – and nobody can forget those visual images.

Now, I’m not saying to describe all your symptoms using a “Toilet Bowl” example – what I am saying is that you should paint a picture for the examiner of how the symptoms affect your daily life and work activities.

In a claim for aid & attendance, don’t say: “I need help getting dressed”.  Instead say: “My 16 year old daughter has to help me zip my pants every morning because my Parkinson’s prevents my fingers from being able to work my own zipper.”

In a claim for PTSD rating, don’t say: “I have trouble getting along with co-workers”.  That’s not a picture – it’s just a statement that every other Veteran is probably telling the same examiner.  Paint the picture, and say: “I spend 2 hours a day hiding in the bathroom at work on the floor of the handicapped stall because  I’m so scared of being around other people with my PTSD.”

See what I’m saying?

Don’t state symptoms.  Paint a picture.

But be careful – don’t embellish…everyone can spot someone engaging in self-serving hyperbole or exaggeration (you know the type – in the military we called them “Bulls**t Artists”).

Just describe the problems your symptoms are giving you in your daily living and working activities by painting a picture of when and how often they surface.

#9:  Get the Doctor’s name and a Copy of your C&P Exam

I’ve shared this tip before – when the exam is done, ask the Doctor for his/her business card – or just their name if you can.  Be friendly about it – not confrontational.

Why do you want to do this? Because the Veterans Court has said that unless you challenge a doctor’s credentials, you are allowing the VA to presume that they doctor was competent and the exam was adequate.  So, get the doc’s name.  Then read up on how to challenge the doctor’s credentials in a Notice of Disagreement if your C&P Exam comes back adverse or negative.

 Take good notes at your C an P exam or regular VA appointment.

And then – I cannot stress this enough – get a copy of the C&P Exam.  Before the Ratings Decision comes out, if you can.  Here’s how to go about getting a copy of the C&P Exam using the Freedom of Information Act (FOIA).

#10:  After the Exam – Write Down your Notes.

A growing issue in the arena of Veterans Benefits is the adequacy of the exams that VA C&P Examiners provide.
You may not have a lawyer now, but if you do someday, it will be incredibly helpful to your attorney to know the step-by-step process of what happened in your C&P Exam.
What tests did the Doctor perform?
What questions did he ask?
Did she use any tools or instruments to take any measurements?
After you leave your exam, take 20 minutes, sit down, and write – to the best of your recollection – a step by step of what happened in the exam.
Doesn’t need to be perfect.
Doesn’t need to have every word. Just enough for someone to look at later and assess whether the tests that the Doctor did – if they did any at all – were adequate to achieve the purposes of the exam.    Just write the key facts of what happened, what was measured, and what tests were performed.
If you are feeling particularly lawyerly, type your notes into a Sworn Declaration like this one, and sign and date it the day of the exam.  Tuck it away in your records and then, if your attorney or representative needs it later, you have a document contemporaneous to the exam that discusses what happened and didn’t happen.  This will make your statements about the inadequacy of the exam years down the road far more credible – because they weren’t blurred by time or memory bias.

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