Welcome to our Facebook live presentation today CCK talks about challenging a VA examination
We're going to get into that but we have an exciting announcement to make. We are coming to you from our new location
It is still in Providence, Rhode Island. We moved across the river
We are now 321 South Main Street Providence
Rhode Island 02903 were the same CCK just in a different location
ready to come to work and serve our nation's veterans.
Our nationwide practice continues and so we just wanted you to know that while we have a new physical space,
we'll still be doing the same quality work that we have always done. We have the same phone number. This will affect nothing.
Hopefully, it'll just make us a little step better for everybody else.
But today we're talking about challenging at VA exam. Joining me today-- I'm Zach Stolz
If I didn't say that yet right here is Alyse Galoski
And that's Christian MacTarnigan and they're attorneys here. The three of us primarily work on court appeals,
but our entire firm, as people who watch us regularly know,
Represent veterans at every step of the way from the regional office of the board of veterans appeals to the court to the Federal Circuit
All the way to the Supreme Court if you need us to. So today
We're going to talk a little bit about all of those levels. Probably not the Supreme Court, but about challenging VA
Examinations if and when that is necessary, how you go about doing it.
We're gonna try to be a little bit quick and hit the broad strokes
If you want more information, please visit us at CCK-law.com
There's much more information about this topic and this topic, believe it or not,
could be discussed probably for two or three days, today we're gonna do in about 10 minutes
So bear with us as we go through the high points of challenging a VA examination
First question is going to be for Alyse Galoski right here. What is a VA exam?
And when do they happen in the VA appeals process? Sure
So a VA examination is basically an evaluation that or an examination ordered by the VA
Sometimes you can see it referred to as a compensation and pension exam
Sometimes it's referred to as a disability benefits questionnaire
But really the distinguishing factor is the fact that it's something that the VA ordered for you
And it can happen at any point in the appeal
It can happen before your service-connected or after. And one of the things to remember about
When a veteran walks into the Department of Veterans Affairs and files a claim for compensation
VA has what is called the duty to assist veterans and as part of its duty to assist it is, in many cases,
Obligated to go out and get an examination for a veteran and sometimes it's many examinations and it could be specific
examinations for for psychiatric conditions
or orthopedic conditions or anything like that
We're going to get into that a little bit, but that's a little bit of the background of why this thing even exists
And so what happens at a VA... Let's call it a C&P examination. Stands for compensation and pension. Mm-hmm
It is short-handed to VA C&P examinations
And sometimes when you're with a busy VA person or a busy rep
They're not going to slow down and tell you it's compensation and pension but that is what C and P stands for
So what happens during that exam Alyse? So yeah, it's gonna depend on what the purpose of the examination is
And you'll know that based on why the VA ordered an examination for you
For example, if you are trying to establish service connection
The purpose of your examination will likely be to look for a nexus. That is what's gonna connect your disability
Currently with what happened to you in service.
Some things that they might be asking to establish a nexus is how long you've had a certain disability
When you first noticed it, if you ever had any
symptoms in service
If you have any other symptoms that might be contributing to the disability if you have a family history, basically
They're trying to figure out what is causing the disability you have now and see if they can link it to your service
Another type of an examination might be an examination that you have when you're looking for an increased rating in that instance
They're actually going to be looking at the severity of your disability
So they'll be asking you how your symptoms affect your day to day.
That's really the biggest part
they're gonna be looking at how severe your symptoms are rather than
necessarily whether they're related to service because usually by that point it's already been established, but sometimes you might have a
Examination that does both. So the short answer is that it depends on the purpose of the examination.
But yeah, they will ask several questions and as many people know
The idea behind a compensation and pension exam and in the entire compensation
kind of adjudicatory process or decision-making process
we're trying to find
That someone has a current disability,
That it's related to their time and service, and then they need to figure out as Alyse was saying how severe it is
So that it can be related to the diagnostic code to get compensation for however severe the condition is and whatever
Problems it may cause at someone's occupation. So Christian, let's turn it over to you for a little bit
What are the differences between a physical condition examination and a mental examination? Yeah, so
Yeah, absolutely
So they're actually very different. So let's assume for purposes of this answer that you're already service-connected for the condition
So if you're going probably the two most common types of examinations we see
For physical or the most common for physical is some sort of orthopedic
Examination. I like to use the knee as an example, I have a lot of cases that involve the knee
Which makes perfect sense a lot of wear and tear in the service, a lot of knee injuries in the service.
So let's say they're trying to VA is trying to see how severe a knee disability is
there's sort of a couple of broad-stroke things that are gonna happen at that examination. Most importantly is
range of motion testing findings
Va uses this thing, I think it's called a Goniometer
It basically is a protractor that they move next to your knee to see how far you can literally move it
so that's going to be one large part of that examination and that's really
Important because like you were talking about Zach, what VA is gonna use these examinations for is to try to give you the appropriate
disability rating and
the
diagnostic codes for your knee are based on loss of range of motion or,
the other main part of the examination, or functional loss that you have. Functional loss is things like problems with
Standing or walking. So they're gonna ask you. How long can you walk?
How long can you stand without sitting? How painful is it? Does it get more painful at times?
So that's sort of gonna be your basic run-of-the-mill orthopedics. You can just take that
They'll do it similar for the elbow for the neck for the back. They're all basically going to have similar broad strokes. So
Mental health or a psychological examination is going to be very different
so a lot of that's gonna have
There's going to be no sort of testing on how far you could move or how far you can walk
That's really going to have a lot to do with what you alluded to before Alyse
How does your psychological condition affect your everyday life? How does it affect your relationships? How does it affect your ability to work?
how long have the symptoms happened? And so
In a lot of these examinations, there's going to be a lot of checkboxes
You know, are you feeling depressed? Do you have memory loss? Things like that.
And I know that we'll probably get to a little bit of this and we have full
Talks about this on our website, but being honest and open with your examiner is probably one of the most important things to have
In the back of your mind when you're going to one of these C&P examinations.
And then how much weight-- so
We've talked about kind of going through these, hit the high points of what happens during these,
so now what? An adjudicator gets it somebody at the regional office or at the board how much weight are they gonna give this? So
in my practice
VA tends to give a lot of weight to the C&P examinations
But they're supposed to take a look and make sure that it all looks good, without getting too much into it
Does it make sense? Is there enough information there for them to rate it? Does the information sort of
not contradict? So they're supposed to look to see whether they should be giving it a lot of weight
They tend to give it a lot of weight
But they also, and we have a lot of talks about this on our website as well, they also
Should look to all sort of the evidence that goes to your rating
So I talked about functional loss
the exams gonna be really important but some of the other evidence in the record that maybe the veteran writes in a lay statement or that
other that medical provider gives about how long they could walk, how it affects their knee things like that, should also be relevant.
So we talked about how these are important and at CCK, we also help in developing evidence and
Veterans are entitled to go to their own
Doctors and get opinions and these can be weighed with and against some VA examinations.
And so it's not just that the examinations are the only piece of evidence that that the VA is going to look at
But they are important pieces of evidence. Absolutely. And so because of the importance of this
Veterans might want to get a copy of their exam. They're entitled to that, right Alyse? They are.
How would they go about doing it? And we would encourage you to do. So if you are
Represented you can have your representative help you
if you're not, you can actually reach right out to your regional office and they will give you a copy. You are entitled to a
copy of that. And what about examiner's
qualifications?
There is a case called Nohr, it came out in the Court of Appeals for veterans claims
It was actually argued by Robert Chisholm of Chisholm Chisholm and Kilpatrick
And so it's important obviously to get the exam. But you do want to make sure that your examiners are qualified.
Can you talk a little bit about that? We're able to challenge those qualifications-- or at least
Get them so that we know what we're dealing with with these examiners. Yeah, and I think one thing that's important to know is that
Examiners, they're presumed competent
But once you actually challenged their competency, a new case came out called Francway,
all you have to do is actually assert-- make an assertion against their
competency and that is going to go ahead and put the ball back in VA's court. VA is then going to have to
Explain why they found that examiner competent.
You're also entitled to a copy of
The examiners the background so you're entitled to a copy of their resume
or other information about their qualifications.
That's also in the Francway case so these are things that you are entitled to per the Federal Circuit. So
So, you know challenging and examiner's competency is absolutely something that you can do.
If necessary. It's sometimes not always the easiest thing to do, but it's an option.
And how do you look Christian-- to see-- how can you tell it's something that we deal with kind of day to day
Yeah, so we know what an unfavorable exam--we call them unfavorable
It just means that the examination does not establish one of those three things we talked about earlier
You know, maybe an examiner says no this isn't related to the person's time of service
Maybe the examiner says it's not as severe as the veteran believes it to be. Yeah
Maybe the examiner says that you don't even have that condition and it can't be service-connected. So those are some examples
What do you kind of look to to see if it's a favorable-- something that we can work with to help the veteran
Get what he or she is looking for and what kind of constitutes an unfavorable one? Yes
so in the case of service connection an unfavorable medical opinion would be one that says your
Current disability is not related to service. So that would be what an unfavorable decision in the service connection context would look like
in terms of
of a rating-- an unfavorable decision
would and I think you sort of started to talk about this-- would show that your condition isn't quite as severe as
As you might otherwise think and one thing that I love to see in my practice
Is sort of the veteran can be their advocate in sort of helping to understand
Whether the examination is sort of as full and complete as it's supposed to be because that's another thing, you know if the veteran
Has severe problems with their knee-- knee is just an easy example, there's no particular reason why
I'm using this other than it's just easy to keep coming back to
If the examination says you don't have flare-ups, right?
But you do have flare-ups and then the examination says that you have a certain level of functional ability
But it's actually lower than that
right
That would be an unfavorable exam because it's not truly reflecting how severe your disability is and like we've mentioned before
What a rater is going to do--
--Because that's what they're they're trained to do what they're supposed to do--
They're going to look at the exam and they're gonna give you a rating based on what the exam says.
So if it doesn't show your level of severity or there's something wrong with the explanation about why
You shouldn't be service-connected for something. Those are going to be unfavorable exams
Those are gonna be bad exams
And then Alyse talked a little bit about how to challenge some of those and how to make sure that VA
Complies with its duty to assist and that is something that we at CCK do every day
At the regional offices at the board at the courts
And it is certainly something that our friends at DAV do or other veteran's service
Organizations or whoever is representing you --this is something that you do need to be informed about and do need to work with your representatives
On making sure that the medical evidence is saying what it needs to say and gives an accurate picture-- a truthful accurate picture
of what you are going through. So with that, any final thoughts? We'll start with Christian and work our way to Alyse. Yeah
In terms of taking the concept of challenging examiner competency
They're not automatically going to give you -- they're not automatically gonna give you your exam
You really have to ask for it.
So let's make sure that
If you want to see your exam you're asking for it quickly
And then don't be afraid to write a letter
to VA explaining how that exam might not exactly have everything that it needs in it or
You know you can do this through your representative as well-- or there's some sort of problem with the examination
I just-- keep in mind that this is important, but it's not completely
gonna tank your case. If it doesn't have everything that needs to have in it. Alyse? Please attend your C&P exam.
There we go-- that's a good one.
So VA does have a duty to assist you
But once you don't show up to your exam, it is very difficult to say that they haven't met that burden
to the extent where you are really
You're not doing yourself any favors that you don't attend your exams.
So even if you're feeling hesitant, if you don't feel like they're gonna give you a fair shot you have to go
Because if you don't go then you're gonna be out of remedies. That's a good point. That's a good thing to close it on
Absolutely. From CCK
And please visit us at CCK-law.com for more information about today's talk and or many many other talks on VA disability
benefits and other legal subjects
I'm Zach Stolz, Alyse Galoski, Christian MacTarnigan. Thank you very much. Have a good day. Thank you.