5 Ways to Identify a Bad C&P Examination
So you’ve just finished your C&P exam and you begin to think about how it went. “Did that actually go well? Were those the questions he should have asked? Was my side of the story really expressed?” We get it, you hear all these horror stories about horrendous C&P exams, but you don’t know how to actually identify a bad C&P exam.
You know to call the VA after your exam, but what else? Today we will address what to do when walking into a C&P and understanding what actually qualifies as a bad C&P.
Understanding a Veterans’ role in a C&P Examination
First, it’s essential to understand that it is the responsibility of the veteran to identify an inadequate C&P examination. A recent decision in the Supreme Court (Francway v. Wilkie, No. 18-2136 (Fed. Cir. 2019) scrubbed off a challenge to request a precedent for bad C&P exams. Unfortunately, it is difficult to actually state that an examiner is not competent to perform a C&P Examination. In most cases, it takes a lawyer to get this fully recognized.
The bottom line is that the Supreme Court sided with the VA stating that veteran Francway did not say that one of the examiners was not appropriate for the job. What does this mean? It means you, as the veteran must be vigilant with your observations on your examination.
This puts us veterans at an extreme disadvantage when attending a C&P examination, as a majority of us have not been trained in the medical field. How do we find out what should occur during the examination to apply our disabilities to the law? All of us know that a disability was caused or aggravated by an incident in service. But the question becomes what does a doctor look for?
VA C&P exam criteria
As a veteran, you need to arm yourself with as much information as you can retain. You must be vigilant, knowledgeable, and confident in your convictions for service connection. You must know the process. Prepare, prepare, prepare!
So, what are the research steps to prepare for a C&P Examination?
Preparation for the C&P Examination
First, If you are blessed enough to get a curriculum vitae (resume) of the examining doctor before your appointment, DO YOUR RESEARCH! Do they specialize in your issue? Google their basic information such as what groups he or she is a member of, how they are rated as a Doctor/Physicians Assistant/Nurse Practitioner (1 – 5 stars), reviews from previous practices, etc. Be proactive! If at any time you feel uncomfortable with the doctor that you are assigned, then call and get a different one. THIS IS YOUR RIGHT AS A VETERAN!! And by far is the easiest way to prepare for a C&P examination. Preparation is everything. You must set yourself up for success to be successful.
Second, what if you do not know who you are going to see? This is typical if you are going direct to the VA for your C&P versus a contracted company. Call the VA and get their name and credentials. Most of the time, they will know who you will have your examination with. You can put in a request for a curriculum vitae; however, by the time you get the information, it is most likely too late. In this case, do your research. Run with the information you get and do what you can. Stay on the offense; never go on defense in this case. It is worth it for your future to call the 1-800 line.
Now that you have prepared for the C&P, and found that you are happy with the examiner, what now? Well, time to go to the C&P.
So, what are the identifiers of an inadequate C&P examination?
These are all observations you must pay attention to during the C&P examination. Most veterans get anxious right before the exam. Understandable, you are talking about topics that could trigger some unwanted feelings. The expectation from the VA is for the veteran to show up, do what they need to do, and get out. There is little regard to spending ample time with the veteran to get a full view of their symptoms. If you read any of the BVA decisions, you will see that this is a common occurrence, and typically ends with a hand slap.
- Initial Attitude of the Examiner
- Adherence to the Schedule for Ratings
- Was the proper equipment used?
- How long were you there?
- How was the exit?
Therefore, before diving into each of these subjects, you MUST understand that this is a legal meeting. There is no treatment, there may be a diagnosis, but the diagnosis won’t be immediately used for treatment purposes. You must treat the examination as such. Get your “legal” cap on and understand that this is being performed to ensure that the law was adhered to. Well, you will be surprised by how rarely examiners actually implement the legal proceedings to rate you within the law.
Initial Attitude of the Examiner at the C&P Examination
If you have done any research, there are a lot of theories about how you should greet the examiner. No one ever says what you should expect from the greeting. First, read the examiner. Do they seem interested? Are they rushing? Are they frustrated? In the many C&P exams I have been to, I can honestly say this is one of the biggest things that should be considered as part of the identification of a bad C&P exam. Bad attitude = bad exam. You should also greet your examiner with a generic “how are you doing today?” No matter what their attitude is, there is no reason why you should be rude to your examiner. Treat them with respect!
Adherence to the Schedule for Ratings during the C&P Examination
By now, you should know what you are being rated for (or send me an email here, and we can chat about your claim and what you could qualify for. You should thoroughly know all the legal aspects of the rating.
Depending on if it’s a psych exam, musculoskeletal exam, or hearing exam, you must understand what the examiner is looking for. For instance, if you are in for a C&P exam for your back, should they be checking your cervical spine or the thoracolumbar spine? They are rated differently, and you should know what is being measured. You should have a general idea of what your body is able to do on your worst day. When they perform the exams, do not push further than the pain. If you bend over halfway and it hurts, do not go further! This is not the time to be a hero!
Pay attention to what the rater records during your range of motion exam. Did they do all of the motions? Did they record it properly? Are they writing the measurements down? Are they plugging the measurements directly into the computer (DBQ)? These are huge things that can change the entire outcome of the examination.
Many times, I have seen the examiner only perform two of the three required Range of Motion (ROM) tests. This is an inadequate C&P. See how quick that can happen?
The C&P examiner must perform all of the tests per the schedule of ratings. If they don’t, take note and drive on, or inquire why the tests were not performed. Again, it is your sole responsibility to identify that the tests during the examination were or were not performed correctly.
Was the proper equipment used?
The examination of the spine above should be using a goniometer. Military Disability Made Easy outlines what this is. Several tools can be used during a C&P exam. These include, but are not limited to:
- DBQ for your conditions
While this is not an exhaustive list, these are some of the most common.
Understand the tool requirements and what should be used at the C&P examination.
To understand the tool requirements, you must understand the schedule for rating disabilities. This can be found at ecfr.gov. With the link provided, you can search ‘schedule’ on the page, and you will find all references to the schedule for ratings for your condition. Read the code and understand the rating system. Many times, things such as “verified with X-Ray,” etc. will be mentioned. These tools should be used to rate your condition.
Once you understand what tools the examiner should be using, you will quickly see what is causing all the previous frustrations in your VA claim. You will start to realize why you are underrated. I can’t remember many adequate C&P examinations if any. Knowing this information will give you the knowledge to identify a proper claim. The seriousness of it should weigh heavily on your decision when determining an inadequate C&P examination.
How long were you at the C&P Examination?
This step is crucial. This is an identifier to see if you were part of a “cattle trailer” and if you were rushed in and out. Take note when you arrived. Take note when you were called in, then take note when you exit the exam. All of these are very important. It is more to make a case in the event you need to write a Memorandum for Record requesting an inadequate C&P examination.
If you were in an exam for 8 minutes, with a 15-minute wait doesn’t always mean a bad thing. Sometimes the VA will call you in for a C&P exam for Sleep Apnea. If the examiner actually takes a look at the records and evaluates the review accurately, this should be all it takes; 8 minutes may make sense. In this case, you will have to weigh all the other points on attitude, tools, etc. to consider the adequacy of the C&P.
However, 8 minutes for a psych eval is grossly inadequate. How will they get a complete picture of your disability by an 8-minute interview? That said, I have seen it to where a psych examiner trusts the Independent Medical Opinions (IMO) and effectively goes with the other doctor’s opinion. This can happen, but just because it can happen doesn’t mean it will. Lean on the other components mentioned.
How was the exit from the C&P Examination?
This is one that should be relied on pretty heavily. Before departing, the examiner should ask if you have any questions. Remember, this is a legal session. Therefore, get your questions answered! If you noticed gaps on the DBQ that have not been addressed (crepitus symptoms, or other rare symptoms that you experience), ask if they evaluated it. You may catch them off guard. They may want to perform a test to listen for that nasty popping sound that you state you experience.
Make sure you ask your questions. You will get a good sense of how the C&P went, and if the results are favorable or not. Generic answers are to be expected, as they don’t want you getting excited during the examination. Put yourself in their shoes, get the answers you need, and proceed with the next steps to call out an inadequate C&P examination, if required.
Summary on C&P examinations
In summary, you need to pay close attention to these examinations. Almost every one of them will fail one of these tests. If you leave confused about whether you should call an inadequate C&P analysis, you should. Ask for a new one. Get to a better comfort level.
At the same time, realize calling a bad C&P examination could delay your claim decision by a month or two. Do the math, make the determination, and drive on with your decision. At a minimum, get your After Action Report (AAR) on your claim.
I believe every C&P should be followed up with an AAR, no matter if it was inadequate or not. Be factual on your AAR and submit it to your evidence if you see fit. Much of this is a personal decision. Sometimes adding evidence can slow down your claim. So, the C&P is by far the most crucial piece of the process and must be measured as such.
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