unnecessary C&P exam?

[FlyboyLeRoy]

I have been seeing a doctor for the past 2 years. I submitted a fully developed claim with a dbq & nexus from my doctor who is a specialist of the body system. All things needed are submitted and from my personal doctor who treats me for said conditions. is it normal for the VA to still schedule you a c&p exam? Thats exactly what they did and I'd imagine the only purpose is to deny your claim. 

[ShrekTheTank]

The VA will do their own exams.  There is nothing to really do about them, but go.  I would take your piror exams with you to the C&P and from my experience will use them and upload them again.  Mine used them in the decision and it made it go faster.

I am not saying it always turns out the best, but I have won 90% of them after I started doing this.  

[pacmanx1]

1 hour ago, FlyboyLeRoy said:

Is it normal for the VA to still schedule you a C & P exam?

Yes, this is simply normal procedure with the VA to request their own medical (exam) opinion.  I even had the VA request a C & P exam even after I had my VAMC medical specialist write her medical opinion in support of my claim. As Shrek stated, just go to the exam and make sure you submit your private IMO. 

[FlyboyLeRoy]

8 minutes ago, pacmanx1 said:

Yes, this is simply normal procedure with the VA to request their own medical (exam) opinion.  I even had the VA request a C & P exam even after I had my VAMC medical specialist write her medical opinion in support of my claim. As Shrek stated, just go to the exam and make sure you submit your private IMO. 

Even though it was submitted with initial claim? It’s already on file. 

[ShrekTheTank]

1 minute ago, FlyboyLeRoy said:

Even though it was submitted with initial claim? It’s already on file. 

Yes take them in again!  

[broncovet]

The VA has discretion on whether or not to order an exam.  

The decision on whether or not an exam is needed "is not" our decision to make, just like we dont make decisions on our own claim, such as whether or not to grant the claim.  

Generally, an exam is ordered when the VA thinks there is insufficient evidence to grant the claim without it.  There may be something "missing".  

Ordering an exam does not mean they are looking for evidence to deny, but that is possible.  They are supposed to be looking for evidence to grant.  

 

Some possible reasons VA may order an exam, that you may have overlooked:

1.  The examiner did not provide a CV to demonstrate he/she is a competent EXPERT witness in the field.  Just because they have a doctor's degree in Psychology, does not man they can render an expert opinion on whether or not your knee injury was caused by military service.  

2.  The exam was insufficient for rating.  

3.  The examiner may not have given a medical rationale as to "why" he rendered said opinion.  

4.  The examiner needs to state, "he reviewed your records".  Without your medical history, a medical exam can be inaccurate, and is more of a guess.  

5.  The examiner writing was illegible.  

6.  Other reazons, such as symptoms were not given or it was vague or unclear.  

7.  Multiple exams gave conflicting results, and another exam was needed to reconcile the conflicts.  

Quote

As Shrek pointed out, the VA has discretion on ordering an exxam, BUT YOU DO NOT HAVE discretion on whether or not to attend "if" you want your benefits.  

   There are penalities for failure to report for an exam, as in this regulation:

https://www.law.cornell.edu/cfr/text/38/3.655

Edited May 22 by broncovet

[Rattler]

I had the same problem last year. broncovet is spot on with what he posted I waved the C & P Exam with this info and the VA ignored it. What they cannot do is use an exam to  when you have submitted medical evidence. 

"- Federal statute requires VA to weigh private DBQs equally with C&Ps (38 USC 5101 as amended by 116 315, title II, 2006(d), Jan. 5, 2021, 134 Stat. 4976). This equal status is now expressed most explicitly by the policy regarding increased rating claims: "Do not routinely request an examination if a disability benefits questionnaire, completed by a private or VA physician, was submitted" (M21-1 IV.i.1.B.1.g). However, this same principle applies to all types of claims."
 

"-I submitted DBQs that are adequate for rating my claim. M21-1 V.ii.1A.3.j allows that "A statement from any physician can be accepted for rating purposes without further examination if it is otherwise sufficient for rating purposes" and has a proper diagnosis. This policy derives from 38 CFR 3.326 which makes a similar declaration. Further, my DBQs meet the definition of "competent medical evidence" (38 CFR 3,159(a) OD. If my DBQs are insufficient in any way, then VA must contact me or my private physician for correction (38 USC 5101). It is improper to send a private DBQ to a C&P examiner for clarification when they did not write it in the first place. Such action could only be construed as an effort to "develop to deny" by VA."

"-VA cannot "develop to deny" a claim. Since I have already submitted a complete package of private evidence, any further development with C&Ps would violate VA policy: "Decision makers may not arbitrarily
or capriciously refuse to assign weight to a claimant's evidence or develop with the purpose of obtaining evidence to justify a denial of the claim" (M21-1 Vii..3.B.1.a). This prohibition was emphasized in a law
review article published by the BVA: "additional evidence should not be procured for the sole purpose of denying the veteran's claim" (1 Veterans L Rev. 94 (2009)). Even CAVC has strongly affirmed this policy:
"Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for
its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose" (Mariano v Frincipi, 17 Vet. App. 312 (2003))."

Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA to undertake further development if purpose was to obtain evidence against appellant’s case)

https://www.va.gov/vetapp05/files1/0506791.txt

Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt to introduce new evidence sufficient to make up the shortfall” in the agency's decision

https://www.va.gov/vetapp14/Files7/1456000.txt

 

 

DBQ Election, Duty to Assist Waiver, & C & P Decline Notice to VA Regional Office (2).pdf