Ask the Attorney: How to Beat a Bad VA C&P Exam

Leah Bucholz What if I told you that one bad C and P exam doesn't have to determine the outcome of your VA disability claim? Every day, walk out of C and Ps convinced their case is over because the examiner rushed them, didn't review their records, or wrote an opinion that they they you know was wrong. But a bad exam doesn't automatically mean a bad decision. And today, we're gonna explain why. So I'm Leah Bucholz, the founder and CEO of Prestige Veteran Medical Consulting and a former army physician assistant.

Joining me today is VA accredited attorney Rebecca Deming from ProVet Legal. Together, we're gonna discuss what actually makes a C and P exam inadequate, how these exams can be challenged, and what veterans can do to put themselves in the strongest possible position after receiving a a negative exam. So let's just get started. Rebecca, you've been here several times. We love you.

You give the the best info, so we're happy to have you here today.

Rebecca Deming Awesome. Thanks for having me, Leah.

Leah Bucholz Yeah. Yeah. Most definitely. So we're gonna link a lot of your stuff in the in in the section of the video, in the bottom section so people can reach out to you. We're gonna tag you guys so people can find your channel.

But let's just jump right in with some of these questions. So in your opinion, what actually makes a CMP exam inadequate or legally flawed?

Rebecca Deming So there's two things that, that really can make a CMP inadequate or legally flawed. Maybe three. The one is that the person giving the medical opinion, the CMP examiner, has to be competent to address the questions answered. That is a very broad standard. Technically, even if you have a gynecologist evaluating your knee condition, if they went to medical school or PA school, just because they specialize in a different area doesn't mean that they're not competent to evaluate something that's not within their specialty.

So we have seen people go to someone who specializes in something else, and it raises some questions, but it's not necessarily bad. But, you know, if you had someone whose license was expired, or if you had just an MD in gastroenterology giving an opinion on PTSD, they're probably not qualified to give an opinion on a psychiatric condition. So there's the and VA does have a list of who's competent to give opinions. So that's one thing. With C and P examiners, we really don't see that being an issue.

That's more of an issue if you're choosing someone to give a private medical opinion. The other is, is the reasoning legally adequate? Is the rationale that they gave for their opinion legally adequate? And for that, sometimes it matters whether they were asked the right question. Are they answering the right theory of service connection?

And that can come into effect, because if they're not answering the right questions, or not being asked the right questions, you're not going to get a legally adequate response that addresses the issues that you're raising in your claim. But a lot of times, we'll see C and P examiners misunderstand the standard, or just provide kind of conclusory statements about their opinions, like, There's no way these two things are connected, or, In my opinion, it's less likely because there's probably other causes that intervened and caused the condition. But they have to actually back up those assumptions with medical literature, rationale, review of the entire claim file. Just saying that you've reviewed the entire claim file isn't enough. You have to kind of show that what are you relying on to form that opinion.

And so that's where we really get in a lot of the time on attacking bad CMP exams. Is when that rationale doesn't really answer the questions that need to be answered.

Leah Bucholz Sure. Sure. So, can a veteran still win their claim after receiving a negative C and P exam?

Rebecca Deming Yeah. Absolutely. In the long run, yes. If you receive a negative C and P exam, the chances that the following rating decision is going to be positive is pretty slim. Unless somebody in the VA system notices that that exam was inadequate, they go in and request a clarification exam, which that happens sometimes.

Sometimes we're able to prompt VA to get a clarification exam or redo an exam that wasn't adequate. But most often, what'll happen is you'll get a denial after a bad C and P exam, And then you have the opportunity to appeal. And you can either appeal by saying, hey, the last C and P exam wasn't adequate, and VA's duty to assist would mean that they'd have to schedule a new C and P exam. Or you can go get some private medical evidence to refute what was in the the bad C and P exam.

Leah Bucholz Sure. Or sometimes I've even seen if there's already a private medical opinion in the file, like, was submitted with the claim or, maybe it's an appeal and then VA, you know, developed for another opinion even with that being on board. They they can still go as long as there's a a positive opinion in there, they can Right. Pivot back. But I know that's still a challenge sometimes.

Rebecca Deming So and I I know we've talked about this in other episodes, but it's VA's adjudicators have a duty to weigh conflicting evidence. And so if you have a a favorable private opinion and a negative C and P exam, they're supposed to weigh them. And we have seen adjudicators give more weight to the private opinion because the private opinion's actually depending I mean, the ones from you and and, not that you have a monopoly on it, but you your team produces really good work and gives a lot of detailed rationale. So if they're doing their job right, they're looking at the rationale, and they're saying, Okay, this one is really more persuasive than the two sentences that the C and P examiner wrote that says, I don't think it's connected. They can weigh them.

We see a pattern where and I think different regional offices might get different guidance. But a lot of times, they'll sort of just rubber stamp whatever the C and P examiner says. Right. That's not what the law tells them to do. But as a pattern, we we see that, and that's a reason why we'll appeal stuff if if they get a denial and they have a favorable opinion in there.

Leah Bucholz Well and I have personally seen, veterans come back and say, like, the you know, I've read writing decision letters that say, you know, even though a C and P examiner provided a negative opinion, your private opinion had more provident value, blah blah blah. And so that that doesn't happen all the time. And in fact, I would say, to your point, more often than not, I would see them just go with their CMP examiner because that's just the easy button. Right? But at the board, however, I have seen much more frequently than, say, the private opinion you know, I see them more so go with the private opinion than, just rubber stamping going with the C and P examiner.

And maybe that's because of that level, it's been really reviewed at a much more granular level, and things like that.

Rebecca Deming Yeah. And the regulations require that they look at the circumstances of service, the progression of the disease, the medical literature supporting connections between things, the medical history. And so, sometimes, you know, if you have a six page opinion, not that you just want to put junk on a page, but if have a solid six page opinion, or longer, you know, in that range that goes through all of those factors and really teases out, like, this was the veteran's BMI at this stage, and it changed to this. And here's all the medical literature that talks about how obesity relates to these other conditions. It's going be a lot harder to refute that, and that should be given more weight than someone who just says, yeah, well, veteran should have controlled their eating, and I don't think Right.

Obesity really factors in here. You know, it's like Right. Your opinion has to be backed. And so, yeah, you're right. We'll we'll see at the board level, they tend to understand that

Leah Bucholz Mhmm.

Rebecca Deming More frequently than they do at the at the regional.

Leah Bucholz So what are some of those most common mistakes that you see C and P examiners make?

Rebecca Deming So I think one of the most common mistakes, it's not even the C and P examiners making the mistake, but it's the VA rating officer who's requesting the exam asking the wrong question, and then the C and P examiner not having the latitude to answer the question that needs to be answered. So a lot of times with sleep apnea, it could be secondary to a knee condition or a back condition with obesity as an intermediary cause, or PTSD with obesity as an intermediary cause. And if the rating officer asks the question, the person requesting the exam says, Did the veteran's left knee condition at least as likely as not caused their sleep apnea? The VA examiner will sometimes answer. We see this pretty often.

They'll say, No, knees are not connected to the respiratory system. Knees did not cause the sleep apnea because the two are completely different body systems. There's no connection. And they're not if they're not specifically asked to consider obesity as an intermediary cause, they overlook that part. I think it's a system flaw more than the examiner's flaw, but that's one of the biggest errors that we see.

Leah Bucholz So sometimes I wonder because you know the veterans going in there most of the time explaining that. Right? And and even if they're not, like, sometimes I wonder if the examiner is just, like, being obstinate and, like, just not being nice. Or if they're really limited and they try to tell VA, yes. This this is related as an intermediate step, but then VA can come back and say, that's not the question we asked you.

We asked you specifically this. So it's hard to understand what's happening back there behind the scenes. Is the is the examiner either, just kind of being a jerk and not wanting to answer the question with common sense because this is not like, this is a critical thinking skill that they should possess. Right? Or, is it that they're trying to provide that, but then, you know, VA is saying that's not the question we asked you, so we we need a direct response on this.

And and I don't know that we'll ever know the answer to that question.

Rebecca Deming Well, the truth probably lies somewhere in the middle. Let there's probably a little bit of both. I think one of the other common mistakes that we see from C and P examiners is that they will say, well, there's no evidence in the service treatment records that something happened, and therefore I can't connect it. And that's not an adequate reason to deny something, because they have to look at the full spectrum of treatment history, lay statements, veterans clinical history, what they're reporting their symptoms have been. You know, that there's no evidence that the veteran is lying or exaggerating symptoms, they have to take that and consider the veteran's statements about their, symptom progression.

And so just saying, well, it wasn't in the STRs, wasn't in the service treatment records, therefore I can't find a connection, is not an adequate rating. It's not an adequate rationale for rating purposes, but we see it a lot.

Leah Bucholz So how can a veteran tell if, their examiner overlooks some important evidence or details?

Rebecca Deming That is a really good question. Because typically, veterans don't have access to the C and P exam results in real time. Unless you're working with an accredited claims rep or an accredited attorney who has access to your claim file, You you can put in a FOIA request. You can put in a privacy act request to get a copy of your CMP exams. But by the time you get it, probably the rating decision's already come out.

Mhmm. So it can be hard to get that that evidence on your if you're working on your own. And a lot of times, I think veterans read on how the C P exam went is not always accurate. So we've had clients come out of a C and P exam and go, that was terrible, my life is over, they're definitely going to deny the claim. And I like to document that, so that if we need to dispute the opinion later, we can.

But a lot of times, they think that it was really negative, and then the C and P examiner ends up writing a favorable opinion. Right. And it was just they were misreading the situation. A flip side is, of course, we have, CMP examiners who will Mhmm. Say whatever they want to the the veteran. Oh, yeah. You know, I totally get your position. I'm definitely gonna write this up as a grant. Mhmm. They can't

Leah Bucholz And they don't.

Rebecca Deming But, you know, I'm definitely gonna show that it's connected. You know, you poor you. You're suffering so much. And then we see the actual report, and it gave a negative opinion. And it's like, you know, I have some expletive words I'd like to say to C and P examiners that

Leah Bucholz Mhmm.

Rebecca Deming Are two faced and and say one thing to the veteran and then do something else behind their back. But both both things happen. So I I don't want veterans my advice is always not to fight with the examiner, you know. That's not the place to have the battle is during the exam. But it's important to have a read and maybe write down your opinions about what happened.

And if they didn't take measurements, like, write that down in a you know, send yourself an email, send your spouse an email, get it kind of documented. If you have an attorney or a claims rep you're working with, you can let them know how you think it went. It's good to have that written down, but unless you see a copy of the exam, you don't really know based on your gut feeling Sure. What they wrote in that exam.

Leah Bucholz So what should a veteran do immediately after a bad C and P, after having a bad C and P exam or what they perceive as a bad C and P exam?

Rebecca Deming So I think the most important thing, like I said, is to write down you know, make a contemporaneous record of what you experienced. Share that with your representative, with a a spouse, with a friend, even just, you know, write yourself an email so it's a date stamped note of what happened. If it's really bad, I mean, you were sexually harassed in your exam, if they touched you inappropriately, if they caused you pain, and this examiner needs to be reported, which happens occasionally. I mean, there's some there's some people who do this who really need to be fired. There is a number you can call or a a system you can do to report bad examiners.

And we can put the that in the show notes, Leah. But if you really feel that this person needs to be reported, you can. But otherwise, I'd say make a contemporaneous note of it, and then wait and see what happens. And if you're represented, you can ask your representative to pull the exam and and take a look at it, and go over it with you. But if you're not represented, I think waiting is really the the strongest thing you can do.

Leah Bucholz So I I know I want I'm interested to hear your thoughts on this because I haven't heard about this in a couple of years now, but I know there used to be a a a White House hotline veterans could call, and they could complain. And sometimes it would be effective when they would call and say, hey. I had this C and P exam. It went very poorly. I'd like an I'd like a different exam.

And that, from what I've heard, has been had previously been an effective approach. Is that still something that's happening, or do you have no clue about that?

Rebecca Deming Not sure exactly if the White House number is working. I I know that that can help sometimes. It can help unstick stuff. It can help get attention to stuff that that needs attention. But, again, you don't if you haven't seen the exam

Leah Bucholz You don't really know if

Rebecca Deming you don't know if it if they act they might have actually written something really good for you, and now you're asking for a new exam before you've seen what they wrote up about you.

Leah Bucholz So I mean, unless they came there and and said, I don't believe anything you're saying. There's no way this is gonna pass. This is, like, ridiculous. No. Get out of my office type thing.

Like, you don't really know. So how much weight does VA give to and we've talked about this before in other videos, but, let's touch on it again here. How much weight does VA give to a C and P exam compared to other evidence?

Rebecca Deming It's also an interesting question. You're asking a lot of good ones, Leah. Legally, they're supposed to weigh all evidence and have a rationale for whether they give one more weight than others. And C and P exams are not automatically weighted more heavily than private medical opinions. From a legal standpoint, they're supposed to look at, is the person who gave the opinion medically competent?

Do they have enough training to give an opinion on this topic? And they could be trained in other areas of medicine. But are they competent to issue an opinion? And then is the rationale adequate? And so if you have a private exam that has a more adequate, more persuasive rationale that really takes into better account the full symptom history, the medical records, the MOS, the duties, the likely exposures, those kinds of things.

That should be given more weight. In practice, at the regional office level, and, you know, hopefully hopefully, this changes over time. But in practice, we do see a lot of raters just kind of rubber stamp whatever opinion the Mhmm. Mhmm. CMP examiner gave, and then they'll give a a blanket rationale for it and say, we found their rationale more persuasive than the private medical opinion.

And those are very appealable decisions when they do that because the private opinion, if it's got better rationale, should be given more weight, but VA doesn't get that rate all the time.

Leah Bucholz So when should a veteran consider obtaining a a private medical, opinion or an independent medical opinion?

Rebecca Deming There's a lot of personal choice in that and risk tolerance involved in when they do it. If it's a complex issue, there's certain issues. I mean, I think sleep apnea secondary to PTSD is one that we rarely see VA C and P examiners get without having a private medical opinion. We do occasionally, but a lot of times that's the type when it's kind of secondary service connection, there's a more complex chain of causation. It's really helpful to have a private medical opinion.

Some veterans feel better, whatever the condition is, or whatever they're fighting for, to put together the strongest packet going into it when they file their initial claim, or you know, the first time they file a supplemental claim to reopen something, or whatever. They want to put their best foot forward and they'd rather spend the money upfront and get a private medical opinion. And I think that's a valid decision. I'd rather reduce the chance that I'm going to have to fight VA, set myself up better for stronger heels down the line by having a private medical opinion from the very beginning. That can be cost prohibitive for some people, especially if they've got, you know, depending on their financial situation, if they have a lot of different conditions.

And so some people would rather get a VA C and P exam, go through the process from their own private medical opinions, get a decision. I kind of think of it as like VA's first offer. Like, they might they might grant six out of eight of your conditions, and now you only need to get private medical opinions on two of them. Whereas you would have been getting eight opinions if you got one in the beginning for all of them. So I think it's kind of a personal decision on how much fighting you're expecting to have, how complex the cases are, and whether you feel more comfortable just advancing that cost in the beginning, or waiting to see what VA does with it before you decide which ones to.

Because you can always open something up with a supplemental claim and with new and relevant evidence. And so if VA denies something, you just get a a private medical opinion that that explains why not just why VA was wrong, but why your condition is connected to service after all.

Leah Bucholz So can an attorney challenge the competency, or the rationale of the C and P examiner?

Rebecca Deming It's both. We have it's it's rare, but we have had ones where we look up a C and P examiner and their licensor Mhmm. NPI number is expired, and so we can challenge their their competency. Or We'll often weigh the competencies of examiners and say, you know, you've got a board certified dermatological oncologist versus someone who mostly does knee conditions or something and is a nurse practitioner. So we'll weigh the competencies.

But, yeah, sometimes we'll challenge the competency of the C and P examiner. A lot of times we'll challenge the the rationale used in the decision. And there's different points, you know, because we have access as accredited attorneys. We have access to the claim file, and so we can see pretty much in real time when a C and P exam gets uploaded. So sometimes we can actually get in there before VA makes a negative decision and reach out to the team working the file, and get them to request a new exam before a decision gets issued and say, Hey, listen, we're going have to appeal this if you guys issue a decision based on this C and P exam.

We need you to correct it, ask the right question, get clarification from the examiner. A lot of times, because of the timeline of VA issuing decisions, lot of times, those arguments end up being the rationale that we use in a brief when we're filing an appeal, a higher level review or supplemental claim to to get a, or a board appeal to get a better medical opinion.

Leah Bucholz Yeah. And so I know you kinda just touched on this, but, you know, more specifically, what legal options are available if VA relies on that flawed C P exam, for veterans and attorneys?

Rebecca Deming So if VA lie relies on a flawed C and P exam, you can file a higher level review. That's often not always, but that's often the best option because you're showing VA and especially if you have a private medical opinion and they relied on the flawed one instead, you can argue that VA should have relied on the private opinion because it should have been given more weight. So a higher level review is you already have the evidence in the record, and you're showing that VA made a mistake. Or trying to get VA you know, VA scheduled an inadequate exam. They relied on an inadequate inadequate exam, and you're trying to get them to live up to or fulfill their duty to assist.

And so you might get what's called a higher level review return. Mhmm. A duty to assist error return. And so you go through the higher level review. You file that appeal. It takes right now, it's about four to five months for a decision. And what comes back is basically instructions for VA to get a new exam that is adequate and and fixes the problems with the first exam. And then and then you're kind of back in that hamster wheel of, are they actually gonna follow the instructions and do stuff like like they're supposed to do? But yeah, the high level review is often the best option. Sometimes people say, Hey, I don't want to go through that cycle of requesting a VA to get another exam.

At this point, I'm just going to go get a private medical opinion and fight this with my own opinion. And then I can argue that my opinion should be given more weight my private opinion should be given more weight than VA's exam. And then you can do that at the board too. At the time that we're filming this in the summer of twenty twenty six, the wait times at the board for a, a direct review opinion are about a year, give or take.

Leah Bucholz Mhmm.

Rebecca Deming Unless you have unless you're 75 or older or have other reasons that the board would grant advancement on the docket. So that's what you might get a better decision, a more nuanced decision because you have staff attorneys and board judges, board members issuing those decisions, but the wait times can be longer.

Leah Bucholz So what do you think the biggest misconception is that, veterans have about bad bad C and P exams in general?

Rebecca Deming I think one thing that veterans have is, you know, Okay, I just got a bad C and P exam. That means that my case is over. You know, I can't do anything about it. And you know, as we've discussed, there's always appeal options. There's things you can do.

I think some veterans, and maybe it's part of a PTSD response, or you know, I'm not going to psychoanalyze it, but they think that it's their job to try to change the C and P examiner's mind, and argue with the C and P examiner to get a different outcome. And I've never seen that work out well for a veteran. So going through the appeal process is is really the way to go, not fighting with the C and P examiner. I think one of the other things people one of the misconceptions people have is that the C and P examiner is the person making a decision on their claim. It's important to understand that difference between they are a medical examiner providing a medical opinion that has to be medically sound, and there's an adjudicator who's weighing the evidence.

And if there's conflicting evidence, they're supposed to weigh the evidence. But the C and P examiner doesn't have the power to grant or deny your claim.

Leah Bucholz Yeah. I think that that piece is sometimes, a misconception for for for veterans big time. And I I also think sometimes that's a misconception for the examiners, which can be highly frustrating. You know, for me as an examiner, I take personal, it it really irks me when I see comments like that in the file because it's, like, outside of scope, and and they need to stay in their lanes. Just like I wanna, you know, I wanna argue and fight and say all these things, but it's not in my scope.

So I stay in my scope because it decreases the credibility of the the examiner's opinion to be just all over the place in giving their personal, opinion on the legal lane. It's just not their area. Right? So, but I'll get off my sidewalks on that.

Rebecca Deming No. I I I think that's a a key point is that the medical examiners are not the ones who get to decide Mhmm. Whether it's granted, they're not the ones that get to decide whether evidence is probative or not. And

Leah Bucholz Mhmm.

Rebecca Deming Yeah. They they sometimes they sometimes overstep that role and Right. In, making determinations.

Leah Bucholz For sure. Well, thank you as always for being here, you guys. Please like and subscribe y'all out there that have been watching. Also, please go over to, the vet the veteran benefits podcast and like and subscribe there as well. We're gonna, tag her in, in this video and make sure all of her info is in the bottom so you guys can reach out to her if you have any legal questions.

Or maybe you need somebody. She's got a great team, that can help veterans nationwide. So, Rebecca, as always, thank you for being here.

Rebecca Deming Thanks, Leah. It's awesome to be here with you.

Leah Bucholz Okay. Alright, guys. We'll see you next time.

Ask the Attorney: How to Beat a Bad VA C&P Exam

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