Legal Requirements of Compensation and Pension Exams
Compensation and Pension (C&P) medical examinations are usually the backbone of a VA disability claim. Particularly at the Regional Office level. Generally, these examinations combine a personal examination with a review of the Veteran’s lay statements. Plus service and other medical records. In 2007’s Stefl v. Nicholson, the Court of Appeals for Veterans Claims (CAVC) held that these exams must specifically state the facts the medical examiners used in coming to a conclusion. Previously, C&P reports had been mostly conclusory.
The Stefl requirements give VA disability attorneys additional material to work with as they prepare for VA disability appeals. To supplement this evidence even further, many attorneys order independent medical examinations (IME). Frequently, IME doctors reach vastly different conclusions from the ones provided by VA doctors.
Stefl claimed he developed a sinus problem, probably due to toxic exposure, second-hand smoke, or a combination thereof. He claimed this exposure occurred during his service in Vietnam in the late 1960s. In a 2003 C&P exam, the doctor concluded that Stefl’s sinus problems were not service-related. Based simply because they were not on the list of presumptive Agent Orange illnesses.
Before the CAVC, Stefl argued that the doctor misunderstood the law. And believed that since Stefl’s condition was not on the presumptive list, it his disability could not possibly be service-related. That misunderstanding led to a conclusory “take two and call me in the morning” medical examination.
A valid C&P exam must clearly consider all the evidence available and examinations which do not clearly reflect such due consideration are invalid as a matter of law.
Essentially, according to the CAVC, the C&P report must be exact enough that either side could challenge specific findings in court. A possible challenge only to the conclusion itself is not good enough.
This report only discussed presumptive connections. It did not examine, as the Board of Veterans Appeals had previously instructed, whether exposure to tobacco or herbicide agents could have caused the Veteran’s condition. Without this solid medical information, the BVA was left to its own devices. That situation is contrary to governing law.
Some factors to consider in terms of the sufficiency of the report include whether the Veteran had any other risk factors relevant to the claimed condition, why the C&P doctor rejected certain studies as unpersuasive, and whether the claimed condition manifested itself in a usual manner.
In a companion case, Nieves-Rodriguez v. Peake, the CAVC ruled that independent medical examinations stand on equal footing with C&P examinations. The Court likened these two reports to dueling expert witnesses in a civil trial, and therefore, it is not solely the medical conclusion, but rather the rationale that the medical examiner used to come to the conclusion which adds probative value to the conclusion.
That being said, since the BVA is not bound by Daubert standards and other federal rules regarding expert testimony, the BVA and CAVC have more latitude to consider IME results. The BVA only needs to base the examination on sufficient data or facts, rest on reliable principles and methods, and reliably relate its principles and methods to the facts of the case
Rely on Experienced Attorneys
Medical examinations must contain much more than baseless conclusions. For a free consultation with an experienced Veterans disability lawyer, contact the Cameron Firm, P.C. at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.