The VA has their own doctors who, either employed or contracted with them, will provide a Compensation and Pension exam, otherwise known as the C&P, for anyone who files a claim for disability compensation or pension benefits. This exam is done by very specific rules that govern the legality of the exam to ensure that the VA does not make any mistakes when they decide the evaluation of the disability.
However, the C&P exams cause a lot of anxiety and are not always favorable to the veteran. So, what can we do about it? We can get independent medical examinations or opinions to contradict what the VA finds in its C&P exam or give a complete picture of the disability.
What Are IMEs and IMOs?
An Independent Medical Examination is conducted by a physician who has never treated you before. They have no personal interest in you or the VA. They are presented documented facts such as treatment records, service records, lay evidence and statements, and other evidence that supports the claim, with a letter outlining the progression of the claim from injury to claim/last rating decision, by the veteran’s representative. IME trained physicians are trained to use the correct VA language and understand or are guided by attorneys who know the laws and how the report must be written and executed in order to meet all the VA standards.
An IMO (Independent Medical Opinion) does not require a physical examination. A qualified specialist reviews your existing medical and service records and renders an opinion used to establish nexus (causation), aggravation, or support a service connection argument.
What Are the Benefits of Getting an IME or an IMO?
The world of the Veterans Administration is medically driven. After all, the whole purpose of the Veterans Benefits Administration is to provide compensatory relief to veterans who have medical conditions due to service. Interspersed with medical jargon is a good deal of law, which makes an already complicated area of practice even more complicated.
On the VA side, not only do the Rating Specialists and the Decision Review Officers have to be relatively familiar with medical vocabulary and conditions, but they also have to interpret them in context of the law. Understandably, then, the VA relies heavily on the exams and opinions provided by the Compensation and Pension examiners to make some sense of the medical side and, accordingly, to figure out how to apply the law.
As practitioners of VA law, we have seen time and again that C&P examiners have bad days and misdiagnose or entirely misrepresent a veteran’s medical condition. Worse, the Rating Specialists and Decision Review Officers use those exams as a basis for their decisions, often with unfavorable outcomes. To help reverse this dilemma, Hill & Ponton has made it a practice to obtain private medical opinions for many of our clients. Our attorneys have found that independent medical opinions significantly boost the credibility of a case and lend to the ultimate success of the claim.
What Makes an IME Different from the C&P?
Neither the C&P nor the IME doctor makes the decisions about your claim. They are only providing evidence used by the VA to make a determination as to whether you are disabled and to what degree. They are also used to provide evidence as to whether the disability is service connected or not. So let’s look at a typical C&P Exam and then see how it differs from an IME.
First, a C&P is conducted by either the VA or a contracted medical facility (as of July 2024, 93% of these examinations were performed by contractors hired by the Veterans Benefits Administration). Hence, the C&P examiner is not providing an independent review of the veteran. They are paid by the VA, therefore there is a determined conflict of interest in the fact that they are supposed to be providing a medical opinion.
Additionally, in September 2024 the United States Government Accountability Office reported challenges in the implementation of corrective actions proposed by the VBA to improve exam quality, with contractors citing the difficulty of training examiners on new procedures on short timelines. VBA acknowledged the issues but stated that some of them, like the legal deadlines for implementation, were beyond their control.
Another important difference is that C&P examiners do not always have to be medical doctors. According to VA policy, the qualifications required depend on the type of exam being performed. For example, mental health exams must be conducted by a licensed psychiatrist or psychologist, and audiology exams must be conducted by a licensed audiologist. For other types of exams, the VA permits nurse practitioners, physician assistants, or other licensed healthcare professionals to perform them, provided they are deemed adequately qualified. The VA states: “VA medical facilities are responsible for ensuring that examiners are adequately qualified to conduct examinations.”
Who Rates the Medical Opinions that are Provided During a C&P Exam?
After the C&P is completed, the exam results and all other medical evidence are reviewed by someone who is not a doctor. That person, usually at the RO, has the task of determining which medical opinion holds more weight than others. A report from a specialist will usually outrank any other opinions or diagnoses from general practitioners or non-specialists. Of course, an MD’s opinion always outweighs a PA’s opinion. At least in theory, but again, this person is paid by the VA, the same organization who pays the C&P Examiner. So, it is always a good idea to have that expert’s advice to outweigh or at least compete with any potentially negative exam results there may be.
Who Provides Independent Medical Examinations and Opinions?
IME providers are a select group of doctors who have specializations in the topic they are evaluating, such as an orthopedic specialist for an exam concerning a spinal injury. Another plus they have over their C&P counterparts is that they are also usually physicians who have done their own extensive research studies and have been published and/or teach.
One thing, though, that sets an IME physician apart from their C&P counterparts is their Curriculum Vitae. This is basically their resume and provides the VA with a record of their extensive training, any military experience, their published works, qualifications, and educational background. When a veteran’s representative sends in an IME to the VA, it should always include the CV of the physician who conducted the exam.
This alone can weigh the rating towards the veteran’s favor because often times there are no other identifying credentials listed for the C&P examiner, just those listed on the C&P exam itself which is usually limited to MD or ARNP. By VA regulation, the VA has to determine the probative value of the evidence and rate accordingly. Therefore, the IME should always have an advantage in these situations.
Types of Independent Medical Opinions
There are four basic types of independent medical opinions that an attorney can request: a nexus opinion, an opinion for increased rating, an opinion for an earlier effective date, or a vocational expert opinion.
Nexus Opinion
A nexus is a link between two separate events. For cases in which we are trying to establish service connection, we ask a doctor to provide a medical opinion that links (creates a nexus between) the veteran’s current condition(s) to an event in service, be it an injury, traumatic event, or so forth. When we prepare the medical files for this type of opinion, we pay special attention to the service medical records, taking care to point out even the smallest detail that supports a nexus. We also make sure that we have all the veteran’s current medical records, so that the doctor can observe the current conditions and symptomology. The doctor reviews the medical file as a whole and determines if the veteran’s current condition was or could feasibly have been caused by an event in service.
IMO for Increased Rating
This type of opinion is needed when the VA has granted service connection for a veteran’s condition but rated it incorrectly. This is often the result of inaccurate C&P exams. It is common for veterans to downplay their symptoms during C&P exams (which ultimately determine what rating the condition should be assigned). As a result, the exams do not accurately portray the physical or mental condition of the veteran on a day-to-day basis. The VA decision-makers therefore assign a rating that is lower than what is truly representative of the veteran’s condition. For these types of cases, we provide the doctor with the entire claims file to review (so that he/she can obtain a full picture of the disabling conditions), as well as current medical records for that condition. Ideally, the doctor would conduct an in-person examination of the veteran as a basis of the report. However, if an in-person examination is not possible, the doctor has to go by medical records alone. Current records are critical for this situation. This is why it is very important for veterans to pursue medical treatment for any conditions that were caused by service.
Medical Opinion for an Earlier Effective Date
When the VA grants service connection for a veteran’s condition, it assigns a date at which the veteran became entitled to the benefits. It is important to note (for recipients of Social Security benefits) that this is not the same thing as the onset date in the Social Security system. In the VA system, the effective date is determined by either the date of the claim or the date that entitlement arose, whichever is later. The “date entitlement arose” means the date the condition was shown to exist by medical evidence.
Vocational Expert Opinion
When a veteran is pursuing a claim for Individual Unemployability (IU or TDIU), a vocational expert comes in handy. Recipients of Social Security Disability benefits are likely already familiar with vocational experts. These experts are trained in vocational evaluating and rehabilitation. In the Social Security system, a vocational expert evaluates the claimant to determine what types of jobs (if any) that the claimant is able to work. The expert takes into consideration all limitations that the claimant may have and the impact that those limitations have on the claimant’s ability to work.
In the practice of VA law, we ask our vocational experts to provide this kind of information to support the veteran’s claim for IU. This is particularly helpful when the VA (be it a C&P examiner or a RO Rating Specialist) issues opinions on what kind of jobs the veteran can work, in spite of the limitations. The VA is overly fond of opining that just about any veteran can maintain sedentary employment. An opinion by a vocational expert, explaining why the veteran cannot work sedentary employment, is very effective in refuting VA denials.
Example
Mr. John Doe has degenerative disc disease, Type 2 diabetes, peripheral neuropathy of the upper and lower extremities, and pain-related moderate depression. Mr. Doe used to be a long-distance truck driver but had to quit his job several years ago because he could not feel his feet and because his low back pain prevented him from sitting for extended periods of time. The C&P examiner affirmed that truck-driving may be out of the question, but decided that he could still work a desk job. Accordingly, the VA denied his claim for IU.
In contrast, a vocational expert found that Mr. Doe could not maintain sedentary employment for the following reasons: he can only sit for 5-10 minutes at a time before having to lie down; his severe chronic pain prevents him from concentrating and following instructions; his pain medication makes him drowsy; he cannot lift anything over 5 pounds; he has to lie down for most of the day due to his back pain. The expert determined that there were no jobs in the current market which would accommodate the veteran’s needs or consider him a competent worker in a competitive industry.
How Hill & Ponton Prepares IME and IMOs for VA Claims
To that end, we have established a process for preparing and obtaining medical opinions. The first important step in this process is obtaining the veteran’s Claims File from the VA. This file is the compilation of everything that the VA has accumulated while processing the claim(s) for compensation. It can include the veteran’s service records, service treatment records, compensation claims, VA exams, medical records (VA facilities and private), Social Security documentation (if applicable), statements from family and friends, etc. Once this file is in our possession, the attorney reviews the file to determine what has already been done on the claim, and what still needs to be done. The attorney will also determine if the claim will need a private medical opinion, and what kind of opinion we will need.
Getting Medical Opinions for Veterans
Hill & Ponton represents veterans throughout the United States. While it would be ideal for every client to be able to meet with the relevant expert face-to-face, this simply is not feasible in most cases. Instead, for out-of-state opinions, what we do is prepare the client’s medical file and send it to the expert to review.
The expert may choose to conduct a telephone interview with the client in order to supplement the subsequent opinion. We always include the veteran’s Claims File, as well as all relevant medical records, statements, and C&P exams. This enables the expert to formulate a comprehensive and thorough medical opinion.
If the veteran is able to travel and meet with a local expert, we prepare the file in much the same way. In addition to the records, we coordinate with the expert to arrange an in-person evaluation. This is the most helpful for cases involving orthopedic conditions. The expert then writes the report based on the examination and the medical records in the client’s file as additional support.
VA Attorney Tips: Is Your Medical Opinion Good Enough?
A favorable medical opinion is almost always needed in order for a veteran to have the best chances of success with winning their claims. In fact, sometimes multiple opinions are needed in order to prevail. A veteran can obtain a medical opinion from his own treating doctors, the VA doctors, and/or he can seek an opinion from a non-treating doctor.
Even if a veteran has a favorable medical opinion, it is often an uphill battle trying to get the VA to approve a claim. As such, it is important to be aware of common mistakes in medical opinions that may negatively hurt a claim, even though the overall opinion is positive and well-intentioned.
Common Problems with Medical Opinions
Here are a few examples of common problems we frequently encounter when reviewing medical opinions:
Lack of Details
Oftentimes doctors are very pressed for time. Because their time is so limited, they want to write the most concise opinion possible. While being concise can be good, it can also be damaging to a claim if the doctor does not give the important details. For example, it is very important for the doctor to indicate what records he reviewed prior to formulating the opinion, very important for the doctor to show a working knowledge of the file, very important for the doctor to indicate that the C-file was available, etc.
Lack of Rationale for the Opinion
The doctor may give a favorable opinion; however, if he does not give a sound rationale for his conclusions, then it is not really helpful to the case. For example, the doctor should specify what facts or records that helped him to formulate his opinions, if he relied upon any medical literature, etc.
Failure to Use VA Language
The VA has its own nomenclature for adjudicating disability claims. If the doctor does not use the ‘special’ terms, the claim may still be denied. When giving an opinion regarding the severity of a condition or for questions of service-connection, it is best if the doctor expresses the opinion in the following terms:
- “is due to”= (100% sure)
- “more likely than not”= (greater than 50%)
- “at least as likely as not”= (equal to or greater than 50%)
- “not at least as likely as not”= (less than 50%)
- “is not due to”= (0%)
Words such as ‘may, might, very reasonable, highly likely, etc.’ usually are not very effective. To ensure the best chances of success, an independent medical opinion should be expressed in terms that the VA staff is familiar with evaluating. Many claims are denied due to the doctor’s choice of words.
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