Contesting a VA C&P Exam (Compensation and Pension)

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Contesting a VA C&P Exam (Compensation and Pension)

Disclaimer, this document is NOT intended as a EXACT or PERFECT document!  It is based on my experience and knowledge which changes and or maybe increases daily.  Each case IS different and EVERYONE should have a VSO/NSO/REP to help them along the way.  These are very serious subject addressed here and will have an impact on your Case or Rating, good or bad and it all depends on how well you are prepared and represented at these!

 

That in mind and said,

 

Abbreviations and Terms Used:

BVA – Board of Veterans Affairs

RO – Regional Office

DRO – Decision Review Officer

NSO – National Service Officer

VSO – Veterans Service Officer

Rep – Veterans Representative (could be an Attorney as well, but someone other than you representing you)

C&P – Compensation and Pension Exam

C File – VA Claim File

SC - Service Connected

SOC – Statement of Case

NOD – Notice of Disagreement

CFR -  Title 38 Code of Federal Regulations

Nexus Letter – A letter from a Medical Professional with an Opinion concerning your condition.

DBQ – VA Disability Benefits Questionnaire

 

Discussed in this Tip:  What is a Compensation and Pension Exam (C&P) and what you can do to contest it.

Since finding out through reading and other avenues, I have had the pleasure of writing many SOC’s contesting C&P Exams.  What I have found out and how I go about this, I will do my best to properly inform you of how to go about this.

Also, keep in mind that these Examiners are posed with a question from the Rater as to your particular Exam.  How this question is presented to the Examiner actually drives how the Examiner will do the exam and complete the DBQ.  He/She is there to answer the question they are given.  To find out how the question was or is presented to the examiner, you will need to request an update to your C File asking for ALL contents since your last…. Including internal communications concerning your claim and file.

Why and where in CFR is it mentioned about C&P Exams, 38 C.F.R. § 3.159(a)(1).  This states that VA “Provided by a person who is qualified through education, training or experience”.

I’ve provided links to CFR regarding qualifications at the end of this document.

You will also want to view this document which is a VHA DIRECTIVE 1134, Dated November 28, 2016 and it covers your VA Health Providers (VHA) writing Nexus letters and or DBQ’s for your Claim.  As you will find, the VHA Directive states “VHA health care providers and consistent with other VHA policies, to assist patients in completing Department of Veterans Affairs (VA) and non-VA medical forms and to provide patients with medical statement with respect to their medical condition(s) and functionality.”

 

The C&P Exam;

 

The following was taken from a VA Directive from 2014, I’m sure it has been updated since. 

  • A compensation and pension (C&P) disability examination may be requested for determining whether a current diagnosed disability is related to an event, injury, or disease incurred or aggravated in military service or to provide other medical evidence necessary for VBA to render a decision concerning entitlement to VA benefits.  When a disability examination is requested for VA benefits claim adjudication purposes, the examination is provided in accordance with 38 CFR 3.326
  • Supporting the “No Wrong Door” philosophy by developing a plan for VA medical facility C&P clinics to assist Veterans in support of Veterans’ requests to have DBQs completed.  The plan should include coordinating with VHA treating providers in ensuring the Veteran receives a “warm hand-off” to the local VHA C&P clinic or other resources when the VHA treating provider is unable to complete a DBQ when requested by a Veteran

 

REFERENCES:   (you can search CFR on these subjects or use the Linking Provided)

a. 38 U.S.C. 5103A. Duty To Assist

b. 38 CFR 3.159.  Department of Veterans Affairs Assistance in Developing Claims

 c. 38 CFR 3.326. Examinations

d. VHA Handbook 1601B.05.  Links to VA’s VHA Publications

 

DEFINITIONS: 

a. Disability Examination. For purposes of this directive, a disability examination is a medical professional’s opinion, personal observation, and/or evaluation of a claimant. It can be conducted in person, via the ACE process, or by means of telehealth.

b. Opinion. For purposes of this directive, an opinion refers to a medical professional’s statement of findings and views, which may be based on review of the claimant’s medical records or personal examination of the claimant, or both

This VA Directive i fell under at the time of writing this is from 2012 and has some different language than the 2014 document.

The most current VA Directive is VHA DIRECTIVE 1134 which you can download or view here.

In a nut shell, when the RO sends you to a C&P exam, they are looking for a second opinion from their ‘guys’.  Regardless the fact that CFR states if a veteran provides a Doctor’s Letter on the subject, there is no need to request a C&P exam.  The can and still do this and more often than not, the exam isn’t really a true exam.  Yes, there are Doc’s out there working in these clinics that do through exams but they are few and far between in my opinion. 

If your experience has been like mine, you show up for the exam and are late getting into the doctor because they are behind.  Once in, they are more concerned with watching the clock and do not do a thorough exam pushing you out the door in 15 min…. kind of like a Dominos Pizza commercial but well under 30 minutes and when you finally get the results, your dumbfounded by how it was completed and the evidence left out, not including statements you made to the doc, shown the doc etc. but I will get into that in “tearing apart the C&P” below.

In Most cases, a veteran is sent to the RO C&P Clinic for the exam but in some areas, the VA will contract outside companies and “medical Professionals”  to do this for them as well.

With the VA RO C&P, usually, within a week to two (2) weeks after the C&P you can log onto myhealthevet and use the “Blue Button Download” and find the DBQ there. 

With the “Contracted” services for C&P’s, you will need to submit a FOIA to retrieve a copy of this exam.

 

Contesting a C&P Exam, What to look for on the DBQ.

The first thing you should do is sit down and read the DBQ (C&P Exam) submitted by the VA Examiner you saw.  Take your time and either highlight or take notes to any errors you find on this form. 

Some important things to look for are (these are important in contesting the Exam);

  • Were VA Treatment records reviewed?  (should see a box checked indicating this)
  • Were or was your Electronic file reviewed. (should see a box checked indicating this)
  • Other evidence the Examiner may have reviewed or failed to review.
  • Look for the Doctor or examiner to cite medical studies that support his/her opinion.
  • Look for any and all inconsistency in what the examiner writes or checks.
  • You are also allowed to question the Examiners Credentials as an Expert.  To do this, you can go to http://www.va.gov/providerinfo/index.asp  You will need to find your VISN and VAMC in which the exam took place then do a search for the examiner you saw which will show you his/her credentials Most likely, unless they did send you to a “Specialist”, they will be a general med or something like that.  If VA sent you to an outside Contractor for this, you will need to do some research and should be able to look them up via internet.  Most of these doctors (if not retired and doing this to supplement their retirement) have or do practice somewhere.  What you want this for is to counter them as a general med doc versus your doctors Nexus Letter or DBQ you submitted as evidence.
  • Look for any likeness from other C&P’s you may have had before on the same issue.  You’re looking for a “Copy and Paste” comment etc.
  • And any other thing that seems out of place, missed or referenced.
  • You also want to question the quality or detail of the exam.  Whether or not the examiner just looked at you or he/she actually poked, prodded… in other words, a “Real” exam. 

               

Once you have gone through this with a fine tooth comb, you will want to sit down and pull out the evidence you submitted.  Defiantly the Nexus Letter or DBQ from your doctor.  Also dig up any medical records that you can find in your C File that this examiner seems to have ignored.

If you are using this as a guide, the I’m assuming at the end of the DBQ he/she submitted to the Rater stats something to the effect of, and this is what mine stated on my Sleep Apnea as a Secondary;

When looking up your Exam Doctor, provide a copy of what you find with your NOD.  Was or is that doctor trained and experienced in the field of your exam.   In other words, did you see an ENT for a knee exam (just an example) then question and request the examiners qualifications as an expert on the exam/condition you were seen for.

A good example is when I went to a C&P for my Sleep Apnea as a Secondary, the doctor outright said he knew nothing about this and had to consult with a colleague and of course his opinion was not favorable.  My wife witnessed this so she also wrote a statement to that effect.  This examiner was a general med board certified and obviously not an expert on Sleep Apnea.

 

    7. Remarks, if any:

    -------------------

    Sleep apnea studies reviewed from VA Poplar Bluff, MO 3/26/2014 where mild  OSA was diagnosed.

   

Opinion: It is less likely than not that his sleep apnea is related to his

                  service connected thoracotomty and residual pneumothorax reason being  no

                  direct relationship between these conditions are clearly stated in

                   literature reviewed.

 

In this C&P, my wife and I showed up and the doc immediately asked about a sleep study that needed to be done.  I told him I had one done by VA in which my PCP (VA) ordered and issued a CPAP and it was in my C File as Evidence for the claim.  He said he couldn’t find it and asked if I could fax it to him when I got home.  This blew my mind as you would think.  After the 20 min question/answer exam he outright stated “I think I have all I need but I do not know anything about Sleep Apnea and need to talk to a Collogue about this.  I knew immediately how this C&P was going to end.

 

The Write Up or SOC;

 

So now that you have gone over the DBQ submitted by the Examiner and taken many notes, its time to compile it.  You are most likely mad at this point so I suggest setting it down for a day or two so you can do this in a level headed manner and not coming off sounding like a disgruntled vet.

In the above example of my C&P, I waited about a week and half for it to show up in myhealthevet blue button download.  After reading it through, I found MANY issues where the examiner had checked “NO” when he out right saw these things (such as large/long scar 43 cm from my lung surgery in 1987.  (“total area of all related scars greater than 39 sq cm (6 square in)?)) yet the question above he marked “YES” to “related scars (surgical or otherwise) that may relate to any conditions or to the treatment of any conditions listed in diagnosis section above”

After finding many inconsistencies in this, and after a couple days of cooling off, I sat down with the info and evidence I submitted for this claim and the VA C&P Exam DBQ.

This is how I went about ripping this C&P apart but as this was also a claim that is linked to another in the FDC I originally filed, I addressed those as well.  As you will notice, I had requested a DRO in this respons and that DRO generated a request from the DRO Officer to the same examiner which you find that opinion below this example.

 

 

 

Attachment to VA Form 21-0958

----NOTICE OF DISAGREEMENT----

Request for Decision Review Hearing

In Reply refer to: REF# 000/abc

 

Subject:            Request for Decision Review Hearing

                        000/abc

                        File Number 12345678

                        Your Name

Page 1 of 5

 

 

February 6, 2015

Sir/Madam,

I am formally requesting a “Decision Review hearing” at the Little Rock RO, with regards your decision dated Jan. 9, 2015 (post marked 01-12-2015) where as the “Issue/Contention” for Sleep Apnea was denied and the reasoning was not what I had claimed in my Claim.  I claimed this condition as a “SECONDARY” and provided evidence to support a “Secondary to Service Connected” condition.  I submitted all VA Sleep Study documentation, Order and Issuance of a CPAP Device as well as a Nexus in support.  I claimed that due to the medication provided for my service connected disabilities, Sleep medication (Medication prescribed by VA to aid in sleep) and with the approval of the PTSD/Depression and Anxiety portion of my FDC (Fully Developed Claim).  The Below Medications listed and prescribed for conditions were provided and used as evidence.  I also request a “Decision Review Hearing” for the “Decision” of award for “Adjustment disorder with mixed anxiety and depressed mood (Claimed as generalized anxiety disorder and depression)” to include PTSD in this “Issue/Contention” as my VA medical records show and support diagnoses of PTSD and Treatment for PTSD as well as a Private Practice Diagnoses that was provided and further diagnose PTSD.

Medications to aid in sleep/Mood Stabilizer and Sleep, provided and prescribed by VA:

  • Quetiapine Fumarate, taken every night at bed time for Mood Stabilizer and Sleep.
  • Mirtazapine, Taken every night at bed time for Sleep and Depression.
  • Diazepam, taken at bed time or as needed for Sleep and Anxiety.

Medication to help/manage pain, provided and prescribed by VA:

  • Naproxen, taken twice a day for inflammation.
  • Fentanyl  Transdermal Patch, changed every 72 hours for Pain management.
  • Hydrocodone, taken twice a day for break out pain.

 

I provided evidence that links these medications as a cause for Sleep Apnea and again claimed this as a “SECONDARY” not as “Service Connected” which would explain why it is not in my active duty medical records, this condition was “Aggravated” by a Service connected disability which is as follows and evidence that was provided to you.

 

  • Aggravated by the Chronic pain from my Service Connected Back injury.
  • Aggravated by the medications from treatment of my Service Connected Back Injury.
  • Aggravated by the PTSD/Depression/Anxiety portion of my FDC (Claim) which was granted as “Service Connection for Adjustment Disorder with mixed anxiety and depressed mood”

 

Further more, I question weather the C&P exam doctors were provided with ALL evidence as when I attended the exam on 24 December, 2014 with Dr. Ben T. Wilson, he could not find the evidence I had submitted along with accessing the VA Sleep Study, Doctor Order for the CPAP and Issuing of the CPAP.  He asked me to bring them when I came back for my PTSD/Anxiety and Depression Exam with Dr. Alexander on 30 December, 2014, which I did but do not know if he received

 

----NOTICE OF DISAGREEMENT----

Request for Decision Review Hearing

In Reply refer to: REF# 000/abc

                                                                                                                                                                                                Page 2 of 5

them.  Again, I requested the Sleep Apnea be claimed as a “SECONDARY” and after review of Dr. Ben T. Wilson’s DBQ, I found issue with the following statements he made in the DBQ:

  1. He did not include “        [ ] Interviews with collateral witnesses (family and others who have known the Veteran before and after military service)
  2. Under Diagnosis, he checked the “YES” box for “Does the Veteran have or has he/she ever had sleep apnea?”
  3. Under Medical History he sated “States has had symptoms of sleep apnea since being in the service. Diagnosed 2013.  Wears CPAP for 8 months now may be helping some. 
  4. b. Is continuous medication required for control of a sleep disorder condition?   [ ] Yes   [X] No

c. Does the veteran require the use of a breathing assistance device?  [X] Yes   [ ] No

d. Does the Veteran require the use of a continuous positive airway pressure (CPAP) machine? [ ] Yes   [X] No

  1. Under “Findings, sign and symptoms, he reported:  [X] Yes   [ ] No

[X] Persistent daytime hypersomnolence

  1. Under Diagnostic Testing:

 a. Has a sleep study been performed? [X] Yes   [ ] No   

If yes, does the Veteran have documented sleep disorder breathing?  [X] Yes   [ ] No

  1. And Finally, his Opinion;

Opinion: It is less likely than not that his sleep apnea is related to his service connected thoracotomty and residual pneumothorax reason being no direct relationship between these conditions are clearly stated in

literature  reviewed.

 

To address these points are as follows;

 

  1. My wife was present and in attendance in this C&P and they did speak.
  2. Here, he checked the box for “YES” “Does the Veteran have or has he/she ever had sleep apnea?”
  3. I NEVER said or insulated it started in Service, I did explain that it was noticed and my wife made me look into it sometime last year (2014) in which VA requested a “Sleep Study” then repeated the study and diagnosed Sleep Apnea then I was issued the CPAP.  I also made it clear that I was requesting and claiming that this condition was “SECONDARY” as stated in my Claim and Statement of case (SOC).
  4. B.  This is incorrect, as I provided a medication list stating that in fact I do take meds for “Sleep Disorder” and also reviewed medications with the Doctor during the C&P.  Also, as stated the above Medications explanations above.

C.  How can this box be checked as “No” when he himself under item “3” above states that “Wears CPAP”?  Also, it is in my VA records, the issue of a CPAP and equipment along with the recommendation for one and my Primary Care (VA) ordering the CPAP?

D.  This confuses me as in item “3” he states himself that I wear a CPAP (“Wears CPAP for 8 months now may be helping some”).  I added this as in item #4(b) of my list above, he checked the box stating that I do not require the use of a CPAP.  Im lost as to why he, in item #6 above checked “yes”.  So he should have seen my VA Sleep Studies, VA Doctor Ordering the CPAP and the recommendation for a CPAP from the Sleep Study.

  1. Here, he confirmed that there are sign and symptoms and further marks the “yes” box for “Persistent daytime hypersomnolence”.
  2. Again, here he states that he acknowledged that there was a sleep study, two to be precise and also checks or confirms that I have documented sleep disorder breathing by checking the box “yes”.
  3. This “Opinion” really confuses me as I did NOT claim Sleep Apnea as service connected to start with, it was claimed as “SECONDARY”.  Sleep Apnea was NOT claimed nor did I mention it in my FDC (Claim) nor any connection for “Thoracotomty and residual pneumothorax” as he sates, so I don’t know where this came from?  Maybe from the request of the C&P Rater on my case?  I claimed Sleep Apnea as a SECONDARY to my

 

----NOTICE OF DISAGREEMENT----

Request for Decision Review Hearing

In Reply refer to: REF# 000/abc

Page 3 of 5

 

SC Back, Medications, Muscular skeletal damage and under the Mental Health part of THIS FDC (Claim).  NOTHING was said about my COPD, Thoracotomty or Pneumothorax in my filed Claim!

 

If you would please review my SOC submitted with my Claim papers, I specifically refer to Sleep Apnea portion of my Claim as follows:

 “2.  With regards to my Sleep Apnea, I have attached the following for your consideration.

This part of my claim should be approved as a “Secondary” to my Service connected back pain, Traumatic Chest Wall Scaring, Medications prescribed by VA for Pain, Depression and with your approved PTSD/Anxiety Disorder/Major Depressive Disorder part of this claim.”  And provide ALL the evidence.

 

In a BVA Citation/Ruling #03315553, which also pertains to Sleep Apnea as a Secondary and the Veteran was awarded Sleep Apnea as a SECONDARY and states,

 

Law and Regulations

  • Is Aggravated by a service-connected disability.  38 U.S.C.A $$ 1110, 1131, 5107 (West 2001);  38 C.F.R $$ 3.303, 3.310, (2003); Allen V. Brown, 7 Vet. App. 439 (1995).
  • “In addition, service connection may be granted for disability which is proximately due to or the result of a service connected disease or injury.  38 C.F.R. $ 3.130(a) (2002)”
  • “In addition to the criteria set forth above, the US Court of Appeals for Veterans Claims (Court) has fashioned a rule to the effect that where a service-connected disability causes an increase in, but is not the proximate cause of, a non-service-connected disability, the Veteran is entitled to service connection for that incremental increase in severity attributable to the service-connected disability.  Allen V. Brown, 7 Vet. App. 439, 448 (1995)”

 

With concern to the “Adjustment disorder” rating, I would like to request that review of this be done to add PTSD to the diagnoses as I have provided ample evidence from Private Doctor Diagnoses, Triggers, VA Diagnoses of PTSD and VA Treatment (counseling) for PTSD/Anxiety/Depression due to said diagnoses and condition/s.  I feel that I have proven without a doubt that this is a condition from which I suffer and am dealing with as Per CFR’s rule of “Reasonable Doubt”.

 

After review of the VA’s C&P Exam DBQ, I found several errors or omissions from my C&P Appointment.

  1. Diagnostic Summary – How does my VA Counselor have me rated under this as well as a Private Practice Diagnoses (DSM-5 Criteria) under this not have any weight.  I was diagnosed by my primary as having PTSD and am currently being treated for PTSD/Anxiety/Depression.
  2. Evidence Review – “Was the Veterans VA claims file (hard Copy paper C-File) reviewed?”  with a “NO” checked.  Isn’t this where my evidence is found?  Later in this rebuttal, ill refer back to this.
  3. Records reviewed –
    • “Veterans Health Admin medical records (Treatment records)”
  4. Item “F” – the statement of “Sometimes about fire in the forest”
  5. 3 Stressors –
    • a Stressor #1  “Does this stressor meet criterion checked “NO”
    • b Stressor #2  “Does this stressor meet Criterion checked “NO”
  6. PTSD Diagnostic Criteria
    • Criterion A:  “Exposed to actual or threatened a) death, b) serious injury”  “no response provided”
    • Criterion B:  “Presence of (one or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event occurred: “  “No response provided”

 

----NOTICE OF DISAGREEMENT----

Request for Decision Review Hearing

In Reply refer to: REF# 000/Aac

Page 4 of 5

 

  • Criterion C:  “Persistent avoidance of stimuli associated with the traumatic event, beginning after the traumatic event occurred as evidence by one or both of the following.”  “no response Provided”
  • Criterion I:  “Which stressor contributed to the veterans PTSD”  “No response provided”
  1. Remarks

Addressing item #2 directly above, if the VA claims file was not reviewed, how could a proper C&P or diagnoses be given in light of all the evidence I submitted with my Fully Developed Claim.  I question as to weather the examiner was given ALL documentation submitted with my claim as was the case concerning my “Sleep Apnea” Portion of this FDC.

 

Addressing Item #3 directly above, it would appear again that the examiner was not given ALL information provided in my claim for review, it further appears that only “Veterans Health Admin Medical records” were only reviewed which should have provided the examiner with ample evidence of PTSD through Primary Doctor Diagnoses and my mental health treatment records showing the treatment for PTSD among others.

 

Addressing item #4 directly above, This statement, im assuming is what the examiner stated I said is incorrect.  I informed the examiner that should I see fires on the side of the road in the woods, camp fires or news of forest fires, I have several bad dreams over the following week or so where I was back in Yellowstone fighting the wild fires.  I also provided in my Claim (FDC) a couple of pictures that I still had that showed us there.  This is a “Stressor” I submitted.  My life was in danger at times, specifically having to run to burned out areas while fighting fires with my “shake and bake” (or fire tent) at hand to deploy if instructed.  This is in my VA Treatment records.

 

Addressing item #5 directly above,

  • Stressor #1 –The examiner marked “NO” for this.  I had a fully collapsed lung happen while performing mandatory Physical Training (PT).  This was and is a life threatening event as the pressure build up from the collapsed lung can cause death.  I get pain often in my left lung area and from the surgery they performed.  This causes me to re-live that instance, day, days in the hospital (19) and after the hospital.  I have quit running because of this and do a little physical activity as I can because it causes bad dreams for about a week after each episode.  How does this not meet criteria?
  • Stressor #2 – The Examiner marked “NO” for this.  During the 3 months which my Active Duty Army Unit was deployed by order of the President of the United States to fight the Wild Fires in Yellowstone National Forest (1988), While I have problems remembering all of the 3 months, I do distinctly remember having to run from a fire line we were cutting because the fire jumped the line and crowned in the tree tops spreading all around us.  Now I understand that not everyone would understand, but during training to go fight the fires, we were told that if we had to use our Fire Tents, we would come out severally scared, if we survived.  I don’t know about anyone reading this, but being burnt alive scares the crap out of me.  The smoke was so thick we couldn’t see 20 feet in front of us and we could hear the fire roaring and exploding trees.  To give you an idea of what we did, I had 7 pairs of combat boots melted during the time spent fighting the fires.  Now when I see someone burning leaves, doing controlled burns along the roads and even a camp fire, I am taken back to my time fighting Yellowstone fires with bad dreams.  This is also in my VA Treatment records and I don’t understand how this does not meet the criteria.

 

Addressing item #6 directly above,

  • Criterion A:  “No Response provided”.  “Exposure to actual or threatened a) DEATH, b) SERIOUS INJURY”.  I think I explained this in the “Stressor #1 & #2.  I was exposed to “Threatened Death and or Serious Injury”.  Fighting Wild Fires isn’t life threatening?  Ask a few forest fire fighters and see what their response would be.  Having a fully collapsed lung that could have ended my life? 
  • Criterion B:  “No Response provided”.    Fighting Wild Fires and having a collapsed lung isn’t “Traumatic events”?
  • Criterion C:  “No Response provided”.    Not wanting to do anything physical because it causes the pain that in fact then causes bad dreams of the event.  Avoiding anything on TV or talk about forest fires, seeing burning and or fire which causes re-living by bad dreams and thoughts of my time fighting the Yellowstone Wild Fires in 1988 along with the experiences there.

----NOTICE OF DISAGREEMENT----

Request for Decision Review Hearing

In Reply refer to: REF# 000/abc

Page 5 of 5

 

  • Criterion I:  “No response provided”.  It is well documented that my “Stressors” are in fact relevant to this.

Aren’t these in fact deciding factors for the criteria of PTSD as diagnosed in my VA Treatment file and Private Practice Diagnoses that was provided in my FDC?  Why was “No Response provided” in these sections when I discussed these with the examiner?

 

Addressing item #7 directly above,

  • How if a good review of my VA medical treatment records, VA Diagnoses and private practice diagnoses that were provided and directly relating the diagnoses of PTSD/Anxiety/Depression to “Service”, was the determination of a separate rating given? 

With the evidence provided in my FDC, there is propondours evidence that would prove beyond a doubt of a proper diagnoses.  Even on the low end of the spectrum, I have provided and proved per CFR “Reasonable Doubt”.  If you still wish to continue the rating your office granted, then that is ok but I respectfully request that PTSD be added to it.  My VA Mental Health Treatment provider still intends to treat me for PTSD/Anxiety/Depression regardless of your findings as was discussed with this provider under her recommendation.

Everything stated and reported in this document is true and faithful to the best of my knowledge and provided evidence and statements made by myself in this and attached documents.

 

Sincerely and Respectfully Submitted;

(signature here)

Name 

VA File # 123456789

 

 

Since this was also in response to a “Denial” of my Claim, again, as you can see, in the NOD I had requested a DRO Hearing and I also contested C&P’s conducted by them on those issues.

The DRO Hearing resulted in the Officer requesting a follow-up opinion from the same examiner on my Sleep Apnea which I found out by a periodic down load and review from myhealthevet Blue Button.

 

This is his Opinion;

                                MEDICAL OPINION SUMMARY

                 -----------------------

    RESTATEMENT OF REQUESTED OPINION:

 

                  a. Opinion from general remarks: secondary to meds and stress illnesses

               

    b. Indicate type of exam for which opinion has been requested: sleep apne

 

    TYPE OF MEDICAL OPINION PROVIDED: [ MEDICAL OPINION FOR SECONDARY SERVICE

                   CONNECTION ]

 

    b. The condition claimed is less likely than not (less than 50%

    probability) proximately due to or the result of the Veteran's service connected condition.  

                    c. Rationale: no medical evidence that adjustment disorder with mixed anxiety

                       and deprressed ood and/or ptsd and/or lumbar strain with DDD  adn DJD are

                       associated with osa.

 

 

What blows my mind on this opinion is “Rationale: no medical evidence that adjustment disorder with mixed anxiety and deprressed ood and/or ptsd and/or lumbar strain with DDD  adn DJD are associated with osa.”.

Why?  Because as evidence in my Claim, I submitted studies from NIH.gov that supports every bit of what he says does not exist or “no medical evidence” as long as a medical nexus.

Also, I know my spelling isn’t the best but notice the examiners spelling.

I have yet to respond to this opinion as during the DRO Hearing, I stressed the evidence from NIH that did in fact link my conditions and medication with Sleep Apnea and would indeed support it as a “Secondary” to my Service connected disabilities and I am going to let the DRO Officer make the call with hope that she looks at the evidence and studies submitted.  I also stressed the fact that he was not a “Specialist” on Sleep Apnea and the fact that he stated he didn’t know anything about Sleep Apnea and need to confer with his colleague which my wife also attested to.

Also, keep in mind that a C&P exam must contain (as I was told by a BVA Law Judge during a Hearing) references to support their opinion.  In other words, studies and such.  Should they not, and your Doctor has referenced studies to support their opinion, BVA will give more weight to the Veterans Doctor Nexus Letter and or DBQ.  Again, as told to me by the Judge when I brought up these C&P issues for my BVA Hearing that is ongoing.  So it is important to provide a copy of these Studies to your Doctor so they can reference them.

I have also seen where the examiner actually looked at my C File and dug up a document (entrance exam) from when I tried to go back on active duty.  He quoted and stated on there that I had not complained about, in this issue, my left knee, on this document and since I did not seek or complain about my knee within one year of leaving active duty, then it is least likely, less than 50% service connected.  I responded to this one as well and dug up the document he referenced out of my copy of the C File and had he looked at the next page on the document, it is addressed and counter signed by a doctor as happening while on active duty as documented in my records.

But unfortunately, in pretty much all my C&P exams, I have found that they checked the box stating they reviewed the C File concerning the exam and in all but 2 of the many, it is apparent that they did not review the file since in service records are there that support the diagnoses, date of diagnoses and many treatment/quarters orders for these.  So it is important to look for these type of statements and documents to counter them.

Does any of this make a difference?  I really don’t know yet as all the contested C&P’s I’ve started doing are still under consideration by either a DRO Appeal or BVA Appeal.  I do however, believe that these do bring into question the accuracy of the C&P done as well as bring to light and attention to each issue on the DBQ providing support for your case under review.  If nothing else, it stresses the evidence provided and I feel that it will have bearing should you have to take this to BVA under appeal.

As a side note, after this was written, and a couple years of fighting, VBA finally added my PTSD as service related.  Keep in mind, it has no Bering on any extra compensation as it would be pyramiding.  It only was successful in Service Connecting the PTSD.

 

***  A good thing you might want to do as well and I recommend it, is to take the DBQ (C&P) from them to YOUR doctor or medical professional who completed your Nexus letter or DBQ, and ask them to write another refuting their opinion.

 

As always, if you have questions, feel free to ask any one of us as we are always here to help.   Feel free to share this as well, as long as it helps a Veteran is all that matters!

 

References:

E CFR Web Site

http://www.ecfr.gov/cgi-bin/text-idx?SID=61643d3959f9019814c6ea8f9a7032d3&mc=true&tpl=/ecfrbrowse/Title38/38tab_02.tpl

 

NIH  (National Institutes of Health)

http://www.nih.gov/

 

BVA (Board of Veterans Appeals)

http://www.bva.va.gov/

 

38 U.S.C. 7402 (Qualifications of appointees)

https://www.gpo.gov/fdsys/granule/USCODE-2011-title38/USCODE-2011-title38-partV-chap74-subchapI-sec7402

 

Section D – Examination Reports  (this is a Document Download link)

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwimmZTo9MXMAhUN42MKHQ34AGgQFggjMAE&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiv%2Fch03%2FM21-1III_iv_3_SecD.docx&usg=AFQjCNHbc-Goi2QVtaObwveRIOUDKDpNmw&bvm=bv.121421273,d.cWw

 

The VA DIRECTIVE that states VHA can do DBQ's and Nexus Statements 

 

** Note:  you can do a simple “Google.com Search” using a varieties of texts combined to find a lot of what you can use.  As a rule, I NEVER use anything that is not a .gov or Government funded Research.  Be weary of opinions and research that isn’t funded or conducted by the Government.  Some may help but most often, they will use what the Government has.  As simple Google search like “VA C&P examiners qualifications” will get you several links to documents from VA and it will also show links to other sites…. Choose well!

And i can not stress enough, for every VA C&P (exam) they do, you might want to have one of your own done to counter theirs.  Say they have had 2 C&Ps done on you for a condition/disability, you want to have a nexus letter or DBQ on your behalf (meaning you want to have 2 done as well).  This will help you keep the 'benefit of doubt' rule in your favor.