|Matthew Hill:||Hello, and welcome to the Hill & Ponton VA video blog. I’m Matthew Hill.|
|Carol Ponton:||Carol Ponton.|
|Matthew Hill:||And today we’d like to talk to you a little bit about … We’re talking about a series on big mistakes vets make, and problems that are presented in their claim, that interfere with them getting the benefits they deserve. Today, we just want to talk briefly on C&P exams, comp and pen exams.|
|Carol Ponton:||Compensation and pension exams.|
|Matthew Hill:||And essentially, these exams are issued by the VA. The VA has a duty to assist you to win your claim. If they feel that what’s missing, to prevent benefits, are either medical opinion about the disease being connected to service, or medical opinion about the rating, the severity of the disability, then they’re generally going to send you to C&P exam.|
|We only see cases where there’s already been a denial, but the biggest-|
|Carol Ponton:||So usually there’s been a compensation and pension exam.|
|Matthew Hill:||I mean, that usually is the biggest reason for denial, right Carol?|
|Carol Ponton:||Exactly. So what is a compensation and pension exam? The person that’s deciding your case looks at the evidence and says, “Okay, we’re missing something. Are we missing the service connected problem, or are we missing the diagnosis, and how bad your condition is?” They will set up a compensation and pension exam, to have you evaluated.|
|Now, they are going to say, on their notes, exactly what they’re looking for. You don’t know, but if you call the people that have set this up, they will tell you it’s a PTSD exam, if that’s what you’re claiming, that it’s an exam for your back, maybe they’re going to do some testing on you, blood work, to see if you have diabetes. They will let you know, so you need to be prepared for that exam.|
|If you’re going in for a PTSD, you should get … There’s a form that the VA has, and it lists problems that anybody who has PTSD has, nightmares, flashbacks, lack of trust, anger, and if you don’t have a problem in each one of those little categories, you don’t have PTSD, according to the VA, so you really need to figure out what are they looking for, because it’s not that our veterans don’t have it, it’s they usually talk about what’s bothering the most that day.|
|They may have lots of nightmares, but they have an anger problem, and on the way to the VA exam, they got in a fight with somebody that was driving near them. You need to make sure what are they looking for, so that you give them all of those things.|
|Matthew Hill:||I would say on that, if you know the exam you’re going in for, you get a buddy statement or two, people who live with you, or close friends, to just write what they observe in you. Not how great a guy you are and all this stuff, but, “Today, I see Fred. I see him wincing when he bends over. He has to sit down after walking up a flight of stairs-“|
|Carol Ponton:||“I help him with his yard because he can’t do it anymore.”|
|Matthew Hill:||And those are things you want to take with you. We always recommend that our veterans take somebody with them, a witness, a wife, or a child, or somebody. The majority of the time, they’re not going to let, as in 90% of the time they’re not going to let that person back into the exam room with them. However, if you have these buddy statements, and you can at least hand them to the person, I’d keep copies for myself but you have these buddy statements that you hand to them, the doctor should review that, hopefully, and have and understanding of how bad it is, but then also note that in their review.|
|Carol Ponton:||But to be safe, you should turn that into the VA separately.|
|Carol Ponton:||We also find that the VA will often give you a form to fill out, and you need to make sure that form is complete. If they’re talking about your back, talk about the pain going down your leg, or the fact that you’re incontinent, or the fact that that makes you depressed. This is your chance to put everything down, because often, veterans will go in, and they’re there 10 minutes or less, and then they end up seeing this huge compensation and pension report, goes on for pages, and they go, “Where did they get all this information?”|
|Matthew Hill:||It makes it look like the doctor really sat down and took time with you, when you know he didn’t.|
|Carol Ponton:||But a lot of times they just copied it off whatever the form was that you handed in, so if that’s the case, you want to make sure this form is complete. The other thing that I tell veterans is this is the one time somebody, a doctor from the VA, is going to see you, so if you’re going in, and most of the time, you’re at home in your pajamas, and you don’t shave, and you don’t get your hair cut, don’t dress up for this person. They want to know how are you really functioning in life, and if that’s the way you are-|
|Matthew Hill:||It’s your chance to show them what your day-to-day existence is, and you don’t need to put makeup on that.|
|Carol Ponton:||And that’s a big mistake that I see. The veterans, maybe the spouse, maybe the person that lives with them says, “Oh, you can’t go looking like that. You need to take a shower. You need to do this.” Well if you don’t usually do it, don’t do it. Let them see how this condition has affected you.|
|Matthew Hill:||Well, this is our blog on C&P exams, and their importance, and how we see they can be messed up and veterans not get the benefits they deserve due to what happened there. Thank you for tuning in, and again, we have several other big mistakes we see that you should be able to find on this channel. Thanks.|
The Disability Benefits Questionnaire (DBQ) was created to help speed the processing of Veterans’ disability compensation and pension claims. These forms are being used at the Compensation & Pension (C&P) examinations for evaluating disability compensation and pension claims. However, DBQs can also be completed by the Veterans’ private physician or treating VA physician and submitted to the VA to streamline the disability rating process.
The DBQs forms use check boxes and standardized language to allow for a quick and easy input into the Evaluation Builder (EB). The EB is a rules-based calculator first implemented to improve both the quality and efficiency of decisions. However, the EB was meant to produce a recommendation for the rating, not the final rating itself. In fact, the rater is required to assess all evidence of record, along with the DBQ, to arrive at the proper evaluation. We are finding, however, that the raters are still not adequately evaluating the evidence as a whole and some Veterans are receiving improper ratings on the decisions. This mistake can take months or even years to appeal in order to arrive at a proper rating and effective date.
Where I’ve seen this happen more frequently is in the evaluation of neuropathy. Neuropathy is seen with a number of different underlying medical conditions and can affect the sensory, motor, and autonomic nerves depending on severity and length of the disease involved. The condition may involve a single nerve (mononeuropathy) or involve several nerves (polyneuropathy).
In a recent case that I reviewed, the VA had granted a mild impairment for the veteran’s peripheral neuropathy based on a DBQ completed at a C&P examination where the examiner marked the check boxes for mild nerve involvement of the common peroneal nerve. However, the rater apparently did not take into consideration the Veteran’s treating neurologist objective findings under consideration to determine the final evaluation. In the Veteran’s treating records involving multiple office examinations, the neurologist had indicated that there was objective evidence of worsening reflexes and increased pain symptomatology involving his bilateral extremities as a result of the neuropathy. As a result of this worsening, the rater should have deduced that the Veteran’s peripheral neuropathy of each lower extremity resulted in disability tantamount to moderate incomplete paralysis of the common peroneal nerve.
Why does VA get this rating wrong so often? I see this same mistake over and over again. One reason is the fact that neuropathy has many causes, and any number of the three nerve types can be affected at any one time. Isolating the effects of the damage and interpreting the physician’s findings of each takes some time and patience. And, for the raters who are likely under scrutiny to process these cases quickly, it is a freedom they cannot afford. But the Veterans are the ones paying for it.
The second reason is the DBQ itself. The Peripheral Nerves Condition Disability Benefits Questionnaire guides the physician to provide an assessment of the extent of either incomplete or complete paralysis of the upper and lower extremities in boxes 10 and 11 in the form. In some cases, the examiner’s clinical assessment of the extent of impairment in box 10 or 11 may be inconsistent with the objective findings concerning the peripheral nerve disability that are documented in other boxes of the DBQ, or even worse, inconsistent with the evidentiary record as a whole.
For example, the DBQ may show in boxes 10 and 11 that the Veteran’s peripheral nerve disability is consistent with mild incomplete paralysis; however, if either the DBQ or any other objective evidence of record shows muscle weakness, atrophy, and diminished reflexes, a higher rating is warranted because of the additional effects of the neuropathy. It is also important to remember that if the Veteran’s treating physician has indicated in the record that the impairment rises to a mild-moderate level and has demonstrated objective findings that support this conclusion, the VA is required to give the higher rating of moderate for the impairment.
Ultimately, it is the responsibility of the rating specialist, not the examining medical professional to determine, through the rating schedule, and in the light of the whole recorded history, the effect of a disability on the average impairment in earning and assign a proper disability evaluation.
The VA general rules in determining the level of incomplete paralysis of the peripheral nerves are as follows:
- Mild – subjective symptoms or diminished sensation
- Moderate – absence of sensation confirmed by objective findings
- Severe – more than sensory findings are demonstrated, such as atrophy, weakness, diminished reflexes, etc…
To complicate matters, the rating specialist has to also evaluate the level of incomplete paralysis in regards to rating peripheral nerve disabilities that are manifested by neuritis or neuralgia of the peripheral nerve. Neuritis is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating. Neuralgia is characterized usually by a dull and intermittent pain.
When you file a claim for service-connected disability compensation you may be asked to report for a compensation and pension exam, or C&P for short. This is a when an appointment is made for a doctor to evaluate the disabilities that you have filed a claim for. This should not alarm you due to the VA’s duty to assist. This is one way that the VA will gather the necessary evidence for your claim. If you have filed for multiple disabilities, keep in mind that you may have to report to multiple exams. Once you have been scheduled for this exam, it is important to know what happens during the exam and what you can do to help prepare yourself.
Usually, this exam will take place at a VA medical center or clinic. The doctor conducting the exam will often use a Disability Benefits Questionnaire, which is used to assess the disability that you are seeking compensation for. Be prepared to answer questions explaining your symptoms and how it affects your daily life. It is very important to know that how you answer these questions will affect your claim accordingly. If the Examiner asks you “how are you feeling today?” your response should be honest. Do not be afraid to say how you actually feel, especially if you are in a lot of pain. If you tell them that you are “fine” the examiner will note just that. This could be detrimental to your claim in a negative way. In this case, honesty is the best policy.
After the exam, the doctor will write a report showing your medical history and ultimately express how severe your symptoms are in relation to your disability. Usually, the report will include the doctor’s medical opinion. The doctor will indicate whether your disability is related to your time in the military or not. Once the report is complete, it will be sent to the Regional Office where your claim is being processed. It is vital to keep in mind that the doctor who is examining you is not the same person deciding your claim. The Regional Office will decide your claim. This report will be taken into consideration as well as all evidence, medical and non-medical, in deciding your claim.
One of the most common questions regarding C&P exams is “what happens if I do not attend this exam?” Not attending your exam could negatively affect the outcome of your claim. As mentioned before, these exams are used to assess your disability and provide evidence to decide your claim. The VA will decide the claim based on the evidence that is provided and you may end up with a denied claim. On the other hand, there may be a time where you are unable to attend your exam. You can ask for the exam to be rescheduled; however, it needs to be within good reason. Nevertheless, you should make every effort to attend the exam.
Here are some key points to keep in mind:
- Show up to your C&P exam!
- Be prepared to answer questions explaining your symptoms – even if they may be triggering.
- Be honest – do not downplay your symptoms.
- Do not exaggerate your symptoms. This can affect your claim in a negative way.
- Dress and act like you normally would. It may not be wise to dress as if you are going to a job interview.
- This is not a regular exam that you would have with your family doctor. You will not be given any treatment for your disability.
This is the time where you can physically show how your disability is affecting you. You can look at this as an opportunity. Go into your exam prepared and ready to go. This does not have to be a negative experience. You now have the knowledge and can better prepare yourself for your compensation and pension exam.
So you’ve filed your claim for a mental health issue, and just a short 10 months later, the VA has moved forward, and scheduled you for a Compensation & Pension exam. You’ve never done anything like this before, and you have no idea what to expect. This post is a short guide to prepare you.
1 – DO Show up!
Hopefully, you will receive written notice of the exam, hopefully some time before the examination is due to take place. If you do not receive notice in time, and miss the examination, submit a letter to the VA explaining the situation. If you miss an exam, it will likely negatively impact your claim, so be sure to attend the appointment!
2 – DO Prepare!
Before you even go to the examination, you have some homework to do. You need to make a comprehensive list of ALL your symptoms, the frequency of your symptoms, and how they affect your life. A great way of accomplishing this is to keep a small notebook on hand, or take notes on your phone when you think of or experience a symptom. Another great way to prepare is to have a spouse, friend, or family member also keep track of what they observe. I know, I know, the last thing you want is your spouse keeping track of every time you lose your temper, but this data can be very beneficial to your claim. Even better, bring this person with you to your C&P examination. They may be able to help you fill in some blanks, and help you remember afterward if there are any inconsistencies in the examiner’s report.
3 – DON’T dress in your Sunday best!
If you normally don’t get dressed up, showered, shaved in your Sunday best, don’t show up to your examination this way. Show up the way you are on any given day. An examiner’s impression of you can have an outcome on his report. If you tell the doctor that you have trouble getting motivated to take a shower or shave, but you look like you’re headed to a job interview, this may give the doctor the impression that you are exaggerating your symptoms.
4 – DON’T downplay your symptoms!
Remember what you’re there for! When someone asks you “How are you today?” we often automatically respond “good, and you?” You’re not “good,” you’re suffering from a disability. You would be surprised at how many C&P exams and medical records I read where the veteran is asked about his disability, and he or she responds with “I’m fine,” or “I’m ok.” I know that when we were in the military, you were expected to suck it up and move on, and any complaining about pain or illness was met with ridicule. I get it, I’m the same way. But you’re not in the service anymore, and your life depends on you getting help with your illness. So speak up! This is another reason why I suggest bringing another or family member with you.
5 – DON’T exaggerate your symptoms!
I have seen several C&P exams where the examiner accuses the veteran of “malingering,” or exaggerating his or her symptoms. Often, this is NOT the case. However, if an examiner BELIEVES you are malingering, it may affect the entire report. If you are suffering from one mental disorder, and you give symptoms of another disorder, then the examiner may believe your real symptoms are also false. Some exams, such as the MMPI may be given to veterans who are thought to be malingering, and this will obviously negatively affect your claim.
6 – DO bring someone!
As I’ve already mentioned, it’s a good idea to bring someone else along with you, especially your spouse. As I’ve mentioned, veterans tend to understate their symptoms. I even do it myself. This is how I imagine a C&P exam would go if I brought my wife with me:
Examiner: “Have you been having any trouble sleeping?”
My Wife: “Sometimes? SOMETIMES?! What about when you go two nights without sleeping at all, and go through $20 worth of coffee and I can’t even trust you to drive the children around? What about when you fall asleep for 19 hours straight?! What about….” continues for 20 minutes
There is an aspect to mental illness called “insight,” and when you’re suffering from a mental disorder, it is much more difficult to clearly see how your illness is affecting you, as your brain is just trying to cope. Your friends and family can clearly see how your symptoms are negatively affecting your every day life. I have spoken to family members of veterans, and they tell me in great detail how badly their veteran’s symptoms are affecting their life, and they can’t understand how they were denied. Then I read the C&P examination notes, and none of what the family member described is in there!
7 – DON’T be a lawyer!
Your C&P exam is for you to describe your symptoms and your limitations to the examiner. That’s it. The last thing you should be doing during this is discussing VA ratings and legal aspects of your case. Do not cite, word for word, the ratings criteria and how your symptoms fulfill it. Do not argue with the examiner. At best, they will become annoyed with you, as they are trying to get through the exam, and at worst, they will think that you’re malingering, trying to scam money. Either way, this will likely lead to a bad report. Know that a C&P examiner is NOT going to make a decision regarding your claim. They are supposed to be unbiased examiners, who pass on facts to the regional office, who use this information to decide your claim.
Matthew: Hello, and welcome to the Hill & Ponton Veterans Video Blog. I’m Matthew Hill.
Carol: I’m Carol Ponton.
Matthew: Today we’d like to talk to you about C&P exams – more specifically, how you as a veteran should prepare for them.
When you get a notice in the mail for a C&P exam, it’s important to understand what it’s for. Unfortunately, a lot of times, they don’t send you that information.
Carol: But if you call the number, they will tell you exactly what it’s for and you should do that. That’s the number on the notice that you got for the exam.
Matthew: The exams should be to what you’re asking for, what kind of compensation. If it’s the first claim to say that something is related to service, like a back claim saying, “I believe that my back was injured in service and that’s why I currently have this disability,” the question isn’t really so much the extent of this disability now; the question is whether it’s related or not.
But most of the C&P exams we see are for the rating to say, “Is this the proper rating?” The veteran goes and, as Carol said, hopefully they’ve called to see what kind it is, but we feel like there is more than just calling that should take place.
Carol: You need to know how the VA rates people. What’s the point of the exam? What are they looking for?
For instance, backs. If you have horrible, limiting back pain, you wouldn’t think that your entire rating is based on how far you can bend before the pain stops you, but that’s it.
A lot of people go in and they’re talking about the pain and how it devastates them, but they bend too far and they get a zero or a 10%. You need to know what the VA is looking for. That’s just backs.
They actually have what’s called DBQs. Those are a guide, an outline that the C&P examiners use when they’re figuring out how to evaluate you for your C&P exam.
Matthew: Yeah. DBQ is Disability Benefits Questionnaire. I will link to that in the blog notes on this.
Essentially, it is exactly how they rate you. There are a bunch of boxes that the examiner can check. It’s important that you have an opportunity to look over that before you go just so you can look and say, “Well, what of these applies to me.”
Clearly, all of it will not apply to you, and there might be some that do apply that you just don’t know because it’s a medical term. But the more knowledge you have before going in, the better.
Carol: Let’s go to the back again. Usually, most people can’t get more than a 40% rating for their back. Unless your back is fixed in one place so it really doesn’t move, that’s all you’re going to get.
Where you get the additional ratings is in the problems that the back causes. For instance, how about radiculopathy where you have that pain, that electrical feeling that goes down your leg, or you have numbness in your feet? What if you become incontinent?
All of these things relate to the back but if you don’t bring them up, don’t wait for them to mention them. It’s important that you bring this out.
Matthew: That’s a really good point. This isn’t like a treating doctor’s visit. When they ask you how you’re doing, you don’t say, “Oh, I’m okay,” or, “I’m doing well today.” That’s going to be written down and, unfortunately, used against you.
When you go in there, you need to be ready to offer as much detail as possible. As Carol said, you don’t wait for the question. You say, “Oh, and we didn’t talk about this: my incontinence related to my back,” or whatever it is. You need to go in.
Carol: “The fact that I fall because my legs give way. That electrical shock is very strong, and it really impairs me.”
Matthew: It’s just things you need to be aware of going in there. Now, a couple of other things with C&P exams: we always recommend that they take somebody with them. A lot of times, our veterans will ask if we as their attorneys can go, and that would just be a nightmare. The VA would throw us out of the building.
We ask the veterans to take a spouse, take a good friend just to be there to watch. Wives are the best. When a veteran will say, “Oh. My pain is at a six.” The wife will say, “You haven’t gotten out of bed in eight days.” Make sure that the truth is known.
Also, they’re there to make sure that if something doesn’t go as it should at the C&P exam, there are two sets of eyes to talk to that instead of just the veteran. A lot of times, unfortunately, we see that the VA won’t even allow the buddy or the wife into the exam room. I still think it’s important to go.
Carol: To be able to say he was only in there five minutes. The reason that supposedly you can’t bring somebody in is privacy. Well, it’s your privacy, and you have the right to waive it.
But let me tell you what I saw in a Board of Veterans Appeal decision the other day that was really disheartening. This client had gone to the C&P exam, spent five minutes, did not do any of the measuring about how far they could bend and wrote a 4138 where he swore to what happened. He did that. His wife said how little time they spent with him.
The VBA totally disregarded that. They said that we’re going to consider the regularity that this doctor would have done exactly what he needed to do. It didn’t happen that way. That really hurt the veteran’s case.
The more information that you can give to the VA about what’s happening, and if you feel that the exam wasn’t fair, tell the medical facility there. They need to know. They’re paying these doctors. They need to know did this doctor really evaluate you? That’s where you can get a change.
Matthew: To wrap up, just remember that when you go to these exams, it’s not a friendly affair. You need to come prepared with information about how your pain and how your problem is affecting you. You need to try and understand how they’re going to rate that, and if you can bring people with you, that’s the way to go.
Thank you again for listening. This is all for this point for the Hill & Ponton Veterans Video Blog. Thank you.
The VA has been using unqualified medical personnel to perform Compensation and Pension (C&P) examinations and deny benefits for traumatic brain injuries (TBI) at many VA facilities across the country. This means that thousands of veterans were not afforded a fair shot to get a competent medical opinion about their condition. Instead of being examined by a specialist, there are many cases in which veterans were denied TBI benefits based on an examination by a nurse practitioner. This is a violation of VA policy.
TBI has been defined as “an alteration in brain function, or other evidence of brain pathology, caused by an external force.” occurs when a sudden trauma, such as a blow or jolt to the head, causes damage to the brain. Such injuries can result in impaired physical, cognitive, emotional, and behavorial functions. Veterans who sustain mild TBI (concussion), which accounts for the majority of injuries, may walk away from the event, seemingly unharmed, and may go unnoticed and untreated. Veterans who sustain moderate to severe TBI require immediate treatment, which begins at the site of the event and continues at a military treatment facility.
According to the VA, it is policy that each mental health professional who conducts a C&P exam for a mental disorder, for which TBI is classified, be appropriately qualified, and each facility Director, or designee, is responsible for ensuring that:
- The examiner must be clinically privileged, as governed by applicable law and the policies established at individual VA facilities, to perform or supervise the performance of the following activities as required for all C&P examinations for mental disorders.
- The mental health professional must be able to diagnose mental disorders, including personality disorders, using the body or system of names in the most current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM).
- They must provide an evaluation of each veteran using a multi-axial system as set forth in DSM with an explanation of the Axis V determination.
- They must determine when clinician-administered psychometric testing is necessary and integrate the results of this testing in the examination reports.
- The must document the veteran’s past and current mental health treatment and the veteran’s subjective response to these treatments in order to assess response to treatment and their potential for further improvement.
- Provide a prognosis with respect to each mental disorder or condition.
- When necessary, comment on the significance of the Veteran’s prior mental health assessments with respect to symptoms, occupational history, social history, and global assessment of functioning.
- Identify veterans presenting with complex diagnostic questions or other issues that are beyond the examiner’s expertise, and refer those veterans to a board-certified, or board-eligible, psychiatrist or a licensed doctoral-level psychologist who has the expertise necessary to complete the C&P mental disorder exam.
- Ensure that veterans who present with a history of a mental health diagnosis, or with any of the suicide warning signs or risk factors, have a further suicide risk assessment which can be completed by either the examiner or by referral, secondary to the C&P exam process. The veterans, regardless of risk, must be given the Veterans Crisis Line number: 1-800-273-TALK (8255).
All too often, those of us who advocate for veterans hear of their concerns as it relates to the qualifications of the examiner who performed their C&P exam, particularly when it comes to mental health exams. Many veterans we talk to lament on the qualifications of the examiner, particularly after they’ve read the exam report and see who it is signed off by. We listen and empathize with their frustration at the lack of professionalism on the part of the VA. It is almost as though the VA wants to minimize the residuals of TBI to avoid payment of benefits. By attributing symptoms to PTSD instead of TBI, it inhibits a veteran from receiving a rating of 100% permanent and total disability.
If a veteran takes anything away from this writing, it is this: be vigilent. If a veteran feels the C&P examiner and the exam itself is too speculative, he/she can challenge this in their NOD (Notice of Disagreement). While there are qualifications that should be met to be a C&P examiner, there isn’t a rule or policy that they must be a specialist in the field of the disability for which the C&P exam is for. The exception to this is PTSD, TBI, and other mental health disabilities.
The VA has a duty to assist the veteran in their quest to obtain disability benefits, but ultimately, it falls on the veteran to initially support his/her claim. Compensation benefits claims require medical evidence to establish a current condition and a nexus (connection) to an injury or disability that happened while a veteran was in service. The duty to assist includes providing a VA medical examination, commonly referred to as a C&P (Compensation and Pension) exam, or obtaining an independent expert medical opinion, also known as an IMO, when such an examination or opinion is necessary for the VA to make a decision on the claim. This means that if a medical exam didn’t make a difference, an example would be if a veteran has a dishonorable discharge and is ineligible for benefits, the VA will not provide an exam.
In most cases, the VA will schedule a medical exam after receiving a substantially complete application even if a veteran submits supporting exam reports from his or her own private physician. It is important to note that the VA doesn’t provide C&P exams for every case. The VA can accept the results of a medical exam by a veteran’s private physician as long as the exam report satisfies VA requirements. Veterans should still submit their own medical reports whenever possible because if a VA exam is ordered, the VA examiner must consider the private medical reports when arriving at a conclusion. A veteran will sometimes disagree about the necessity of a C&P exam; however, if one is scheduled by the VA, it is very important he/she attend, as not attending without just cause is a basis for denying a claim.
So, how can a veteran make the most of his or her exam? It is important to note that it is not a social occasion. If the examiner asks “How are you today?” it is wise not to answer “I am fine.” Chances are, the examiner will write this in the final report and it could be very detrimental to a claim. It is wise for a veteran to be honest and tell the examiner exactly how he or she is feeling. Many times, a veteran is disgruntled prior to his/her scheduled exam, but the place to air these grievances is not in the exam room. The examiner has likely heard these complaints from many other veterans, and can’t fix the VA system.
The most important thing to do during a C&P exam is to answer all questions honestly. Exaggeration of symptoms is not in the veteran’s best interest, but then again, understating symptoms is also not helpful to his/her case. This is likely the only time the examiner will see a veteran, and it is important he or she sees the real person. This means, for example, a veteran should dress and look the way they normally do. The C&P exam doesn’t have to be an uncomfortable experience, and honesty and openness is the veteran’s best asset in ensuring that doesn’t happen.
If you are a veteran seeking disability benefits, you may initially think to yourself: I know I’m telling the truth, so this doesn’t apply to me. Or, you may be thinking: There is no way that the VA could possibly deny my claim, everything I have said is 100% truthful.
Unfortunately, the topic of malingering is one of the most common issues veterans’ advocates have to deal with when assisting veterans with obtaining disability benefits. My hope is that by the end of your reading, you will have a new sensitivity for why this issue is always beneath the surface, if not blatantly present, in all VA disability claims.
First, it is important to know what malingering is. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) defines malingering as follows: “The intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives.”
In the VA world, this translates to the VA claiming that a veteran is exaggerating or even outright lying about his or her symptoms in order to obtain disability benefits or increased disability compensation. This is particularly the case when a veteran is attempting to obtain service-connected compensation for mental illnesses such as post-traumatic stress disorder (PTSD), or when a veteran is seeking higher benefits due to individual unemployability.
Unfortunately, it is all too common for the VA’s own Compensation and Pension (C&P) examiners and sometimes the treating VAMC providers, to attack the veteran’s credibility. The usual M.O. (modus operandi) for PTSD cases is for the C&P examiner to administer psychological testing to the veteran. The psychological tests purport to detect if the veteran is malingering or lying. After the tests are administered, the C&P examiner will then use the test results in the C&P exam report to attempt to destroy the veteran’s credibility. Normally, this “credibility bashing” entails the examiner stating that because the veteran scored above a certain “cutoff” on the tests, he or she is likely to be exaggerating symptoms and/or motivated by secondary gain.
However, what the C&P examiners usually don’t state in their reports, is that it is well known in the medical literature that what may appear to be malingering, can also be a cry out for help and an expression of the severity of very real psychiatric symptomatology. This has been found to be especially true for combat veterans.
I will end by saying that I admit that not all allegations of malingering are false. But, I also know that far too many veterans are incorrectly given this label, and that is the real injustice. If you are a veteran and you are falsely identified as a malingerer, do not stop fighting for the benefits you deserve. The truth is on your side; you just have to prove it.
We are often asked by veterans, “When will I receive my benefits, or why is it taking so long, or how much more blood do they need before I get my money?” These are very legitimate questions that can be difficult to answer due to the steps required to prove eligibility; regardless of the circumstances. Unfortunately, there is a lengthy process, more formally known as the Claims Process, which must be followed before any benefits can be awarded.
As most veterans and the public in general should know by now, the VA has undergone a significant overhaul since the debacles of the system were announced by the media back in April of this year. They have, in fact, made significant progress in accelerating access to health care and addressing the numerous deficiencies within the system. Their ultimate goal is to improve service delivery to veterans in an effort to rebuild trust with them and all Americans. This was as of a result of the implementation of the Accelerated Access to Care Initiative. Despite the changes and improvements in place, when it comes to filing claims for compensation benefits, a series of steps still must ensue which continue to “drag-out” the process for receiving benefits.
There are eight distinct steps that must be followed for the majority of disability compensation claims. Listed below are the steps with a basic explanation provided.
- Claim – The veteran submits a claim for disability benefits to their local RO. Depending on the mode of transmission, i.e., electronically or by U.S. mail, will determine how quickly the claim is entered into the system. Obviously, those claims that are mailed will take longer versus those submitted electronically (at least in theory).
- Review Process – Your claim will be reviewed by a VA representative who makes the determination if additional documentation to support your claim is necessary.
- Evidence – The VA will inform the veteran of specific documents necessary to support the claim. This is primarily for those cases that are questionable when determining eligibility or not.
- Review of Evidence – After review of the evidence submitted, if additional information is necessary, the veteran will be notified as to what else must be done to move forward with the claim and how much time he/she has to present the documentation. Please understand; this step could be repeated numerous times until the VA is satisfied with the evidence submitted.
- The Decision – This could be favorable or not for the veteran. Once a decision has been made, the veteran will receive a report or decision that could be in the form of an RD or SOC outlining the decision made and the evidence used in determining the outcome. Again, more evidence may be required which again takes you back to step #4.
- Pending Approval – This is not much different from “the decision” whereby additional evidence may be required and again you are back to step #4.
- Notification – Here we go again!!! The claim decision is made and mailed to the veteran. In the eyes of the VA, the process now moves to the next step. In the eyes of the veteran he/she may not agree and have to look at other alternatives have the decision amended to a more favorable one.
- Completed – The VA mails you a complete packet of information and considers the case closed. Does this mean it is over…maybe or maybe not? It all depends on the VA’s decision and if you want to continue to pursue compensation you believe is (and more often than not) what you deserve!
Over the last several months since the appointment of Secretary Robert A. McDonald, the VA has been moving forward in ways to better serve their customers – the veterans. This focus will continue via reorganization and implementation of new programs and services. The end result will hopefully make the VA a better, stronger, and faster organization for all veterans.
Matthew: Hello, and welcome to the Hill and Ponton Veterans video blog. My name is Matthew Hill.
Carol: I’m Carol Ponton.
Matthew: Today we want to talk to you about unemployability claims and C&P exams for those claims for when a veteran has multiple service-connected disabilities and the veteran is claiming that all of those disabilities lead to unemployability.
I consider this scenario to be a crack in the system, and here’s what I mean by that. When a veteran has, let’s say, a back problem, migraines, and PTSD and he says, “I can’t work because of these three,” and the combo rating there is 80%, the VA will send the veteran to three different exams: a psych exam for the PTSD, a neurological exam for the migraines, and an orthopedic exam for the back.
Each exam will talk about the veteran’s single disability and the functional impairment that has. The back examiner will say, “The veteran can’t stand at all or can’t walk, but he could do sedentary work.” The migraine examiner might say, “Well, he has to be prostrate and has to lie down at least once a week. As long as an employer will give that benefit, then he could work.” And then the PTSD examiner will say, “Well, he doesn’t get along with people too well, so as long as he’s working by himself off somewhere, he’s fine.”
But what’s the problem?
Carol: You add it all together, and no one’s going to employ him. But the VA never does that. They never put it all together, which is the rule. It’s what they’re supposed to do.
Matthew: Right. There’s no opinion that reconciles all of those. A lot of times, we just see veterans get denied. The rating decision will say, “Well, this doctor said you could work sitting down. This doctor said that as long as you could lay down every once in a while, you’re fine. This other doctor said as long as you weren’t with people, you’re okay.”
Carol: I’ve seen veterans with a 90% combined rating for 30 years trying to get 100%, and they’ve been denied under this same system.
Matthew: Because the 90% veteran will have five or six different disabilities, and the VA, in a way, can divide and conquer. Frankly, the irony is if a veteran only has one disability, it’s almost easier.
For example, with PTSD, if they’re at 70% and the VA says, “Well, he does have anger problems and he can’t really be around people,” the VA has to answer the question: Does that keep him from working? But having these multiple disabilities and multiple exams gives them an out.
Carol: Right. That’s what we find. We get a doctor who can put it all together. We either get a vocational rehab person or we get a doctor who can say, “Look, just based on the PTSD alone, this person can’t work.” And then we’re able to use the other problems for a special monthly compensation, additional benefits.
Matthew: So we get 100 for one. Then with the other ones adding together, we can get that additional special monthly compensation.
Now, as Carol was saying, we actually look to use vocational experts on these cases. They are essentially doctors or professionals that can look at an individual and discuss, “Here’s the background. Here’s what they were able to do. Here’s the limitations that were placed on them,” and then look in to the greater job force and say, “Where could they work?”
Inevitably, in a case like this they’d say, “There’s no job that’s going to give them the accommodations they need to be able to work.”
We’re professionals. We’re able to find other professionals, but getting a vocational expert for your case might not be easy. What I would suggest is going to the VA vocational rehabilitation center and say, “I want a full assessment of me, if I’m able to work, if I’m able to go to school.”
I’ve gotten great opinions from them or they come back and say, “Look. We tried to put this veteran in school and he couldn’t do it because of the service-connected disabilities.” That would be the opinion that looks at the totality of your disabilities that the VA benefits section is unwilling to give.
Carol: There are two cautions. First of all, this report from the vocational expert that you’ve gone to – the rehabilitation person through the VA – it’s not going to be in your VA file. They wouldn’t put it there. It absolutely is not there, and it’s not going to be there unless you put it in there.
The second thing that has been a real problem with the ones I’ve had, I would say maybe 10-20% have helped me. Unfortunately, a lot of times the vocational person will not limit the inability to work to only the service-connected problems. They will leave the letter very vague. Therefore, the VA is able to ignore it.
Matthew: Yes. It’s definitely not perfect.
Carol: So you need to watch it. I’ve had a lot of veterans say, “I’ve got just what we need. They say I can’t work.” And when you look at it, the person will list a lot of the problems that the veteran has, many of which are not service connected, and say, “Because of these problems, you can’t work.” That’s not going to help you.
Matthew: It’s not. Again, in theory, the VA is only supposed to consider the service-connected disabilities from that letter. But as Carol said, they can screw that up too. This is just something to watch out for if you have multiple disabilities that are service connected and you can’t work because of them. They probably are going to send you to a bunch of different doctors on this.
Carol: For C&P exams.
Matthew: You just need to make sure that if you don’t get back what you feel the correct answer is, you appeal because the higher you get in the appellate chain, the more likely you are to get a decision-maker who really understands how this all comes together.
Carol: If you’re not working and you have a combined or single rating of 60% or more, please, please don’t give up. Please get somebody who can help you with this.
I see so many veterans, Matt, that for 30 years have had this combination, and they still don’t get 100%. That’s not fair. If you know the difference between 80% and 100%, it’s significant.
Matthew: It’s a lot of money.
Carol: It is.
Matthew: Well, that’s it for this edition of the Veterans video blog. Thanks for joining us, and we will see you next time.
Free Case Evaluation
Please call for an appointment before visiting:
Mail Processing Center: P.O. Box 449, Deland, FL 32721
Orlando, FL: 605 E. Robinson Street Suite 635, Orlando, FL 32801
Deland, FL: 1607 South State Road 15A Suite 12 Deland, FL 32720
Melbourne, FL: 100 Rialto Place, Suite 700 Melbourne, FL 32901
Washington, D.C.: 1776 I Street, NW, 9th Floor, Washington, D.C 20006
Atlanta, GA: 1201 Peachtree St., 400 Colony Square, Suite 200, Atlanta, GA 30361
Houston, TX: 3200 Southwest Freeway, Ste. 3300, Houston, TX 77027
Los Angeles, CA: 11601 Wilshire Blvd., 5th floor, Los Angeles, CA 90025
San Jose, CA: 2880 Zanker Road, Ste. 203, San Jose, CA 95134
Phoenix, AZ: 40 North Central Avenue, Suite 1400, Phoenix, AZ, 85004
Tucson, AZ: One South Church Avenue, 12th Floor, Tucson, AZ, 85701
Chicago, IL: 55 E. Monroe Street, Suite 3800, Chicago, IL, 60603
Brooklyn, NY: 300 Cadman Plaza West, One Pierrepont Plaza, 12th Floor, Brooklyn, NY, 11201
Cincinnati, OH: 300 E Business Way, Suite 200, Summit Woods Corporate Center, Cincinnati, OH, 45241
Cleveland, OH: 600 Superior Ave. East, Fifth Third Building, Suite 1300, Cleveland, OH, 44114
Columbus, OH: 100 E. Campus View Boulevard, Suite #250, Columbus, OH, 43235
Portland, OR: 650 N. E. Holladay Street, Suite 1600, Portland, OR, 97232
Philadelphia, PA: 1 International Plaza, Suite 550, Philadelphia, PA, 19113
Pittsburgh, PA: 201 Penn Center Boulevard, Suite 400, Pittsburgh, PA, 15235
Charleston, SC: 4000 S. Faber Place Drive, Suite 300, Charleston, SC, 29405
Richmond, VA: 7400 Beaufont Springs Drive, Suite 300, Richmond, VA, 23225
Seattle, WA: 801 Second Avenue Seattle, Suite 800, Seattle, WA, 98104
- Video Blog – Getting Your Medical Evidence to the VAMay 25, 2017 - 4:00 pm
- Video Blog – What does being found incompetent by the VA mean?May 19, 2017 - 4:00 pm
- Video Blog – Will the VA take away my Guns?May 12, 2017 - 1:48 pm
- Video Blog – Common Mistakes – Knowing Your TimeframesMay 5, 2017 - 4:31 pm
- Video Blog – Common Mistakes – Attending the C&P ExamsApril 27, 2017 - 10:21 am