Veterans will often call the Law Office of Andrew P. Gross and ask “why is the VA sending me to another Claim and Pension Exam? They already have my Nexus Letter!”
Sometimes, it occurs because the Veteran Service Office at the VA has reviewed the claim and thinks that, for some reason, all cases need to be sent to a C&P Exam for a medical opinion. Other times, the VA needs a Disability Benefits Questionnaire completed so that they can adequately assess the severity of the disability for the purpose of assigning a numerical rating.
In other circumstances, the VA will be “developing to deny,” or intentionally developing negative evidence.
Background
As the United States Court of Appeals for Veterans Claims decided in Hart v. Mansfield, The VA has a “duty to assist” the Veteran when the evidence in the Claims File does not adequately reveal the current state of a Veteran’s disability. When there is a gap in the Claims File about the current degree of the Veteran’s disability, the VA must order an exam.
Although Hart v. Mansfield was decided in the context of claims for increased ratings, the VA has the same duty to assist Veterans in the development of their claim when the VA receives sufficient information about the existence of the Veteran’s disability.
When can the VA order a new exam?
There are a few times the VA can order a new exam. As stated above, sometimes, the VA must order a new exam because there is some evidence that the disability has worsened. Sometimes, there is evidence that the condition has improved. Sometimes, the medical professional conducting the C&P exam will write an opinion that simply makes no sense. For instance, the opinion might contradict itself or ignore crucial information. Other times, the VA receives new evidence that might have an impact on the medical opinion, such as a lay statement or additional medical records.
What should happen when the VA receives a nexus letter from the Veteran?
First, it should be reviewed for sufficiency, which is to say that it needs to answer the basic questions needed to adjudicate the claim.
Then, it should be weighed against the other evidence. If there is a prior, negative medical opinion from the C&P exam, it is the VA’s job to weigh the evidence and decide which one is more probative. The VA weighs the probative value of the medical opinion by analyzing the medical expert’s knowledge, training, and experience, the strength and rationale of the medical conclusion, as well as the thoroughness of the evaluation of the patient and the record.
How “Developing to Deny” Happens
On occasion, the Veteran will supply their own nexus opinion, either because the physician that treated them agreed to write one, or because the Veteran sought out an Independent Medical Opinion (IMO) from an expert in the field.
The Veteran will either submit this nexus opinion with their initial claim or as part of their Supplemental Claim. Even though the nexus opinion is thorough and answers all of the questions required to adjudicate the claim, the VA will go ahead and order another exam….for no reason whatsoever.
In other cases, the VA will send the Veteran to a C&P Exam, which itself will yield favorable findings. Then, the VA will request another exam, even though the first exam was fine.
An experienced VA Disability Benefits attorney can spot these in a few ways. Often, the exam request for the new C&P exam will ask for another medical opinion but not ask any questions that are not already answered by the previous medical opinions. Sometimes, the exam request will call the new nexus letter “medical evidence” to be evaluated by the medical provider conducting the C&P exam. We have seen some extreme examples of this – for instance, we have seen the VA ask a Family Nurse Practitioner to weigh in on the medical opinion provided by a Veteran’s treating orthopedic surgeon for an issue related to the arthritic knee. In fact, on a regular basis, we see the VA ask under-qualified medical professionals to second guess the medical opinions of board-certified doctors who have actually treated the Veteran.
Why is this a problem?
The obvious answer is that it hurts Veterans. The VA Disability Benefits system is supposed to be non-adversarial and benefit the Veteran, and generally, supposed to yield the benefit of the doubt to the Veteran seeking benefits. By requesting additional exams and seeking “negative” evidence, the VA is basically undermining its very purpose.
Another major reason is because it takes up time and money to ask for additional opinions. When the VA receives a nexus letter from the Veteran, it should be able to review the opinion and issue a Rating Decision within a few weeks. When it decides to order another exam, it must develop the exam request, forward it to the contractor, who then contacts the Veteran to set up an appointment. The medical professional has to review the evidence and generate a report. Sometimes, this all happens relatively quickly, but when there is a backlog (which is made worse by unnecessary exams), the process can add weeks or months to the process.
Even worse, most C&P examiners are not employees of the VA, but rather contractors hired by the VA to conduct the exams. The VA is spending taxpayer dollars on exams that do not need to happen.
What Can A Veteran Do About It?
That depends on the case. Objections to the exams are sometimes effective, but often, an appeal is required. By the time the objection reaches the client’s file, the exam process is underway and getting the VA to intercede and stop the exam process only works sometimes.
Sometimes, when the VA has improperly developed negative evidence, the only solution is to appeal the VA’s Rating Decision.
If a Veteran thinks the VA is sending them to unnecessary exams, they can contact an experienced VA Disability Benefits attorney at the Law Office of Andrew P. Gross.