A couple of weeks back, I wrote about a recent decision out of the Court of Appeals for Veterans Claims in which attorneys for a veteran tried to get a VA examiner to respond to an interrogatory, which essentially was a series of questions about the examiner’s professional background. Some of the questions that the attorneys wanted answered also concerned medical statements that the C&P examiner made in the report.
In a VA benefits context, “competency” basically refers to a person’s ability to provide a reliable opinion. I’m not a psychologist and therefore I’m not “competent” to say that a veteran’s depression is related to his service-connected back condition. On the other hand, a psychologist, who went through years of professional schooling and has obtained the necessary licenses to practice psychology, would be “competent” to provide such an opinion.
Now a psychologist is certainly “competent” to offer an opinion concerning a psychological issue, but is he “competent” to opine on the origin of a skin condition? I think most people would say no. His competency comes from his training, and his training is in matters of the mind, not matters of the skin.
You are likely aware of the weight that the VA gives to opinions from its C&P (Compensation & Pension) examiners. The C&P is that exam you go in for after you’ve filed your claim, and the VA wants to know how bad your condition is or where your condition started. If you get a bad C&P, it’s really going to make it difficult to win your case.
I bring all of this up because I have been seeing more and more cases where the C&P examination is being provided by a person who clearly possesses generalized medical training but doesn’t necessary have the more specialized training to provide competent opinions on specific conditions, like back or foot injuries. In a court of law, an expert witness such a doctor would be cross-examined to ensure that he or she has sufficient training. Obviously, there is no cross-examination process in the VA benefits system. But on the veteran’s side, we still need to know that the examiner is fully competent.
Requesting a New C&P Exam if the Examiner Wasn’t Competent
It would be nice if examiners responded to interrogatories such as the ones submitted in the case I mentioned above. But a more realistic remedy, in my view, is to ask the RO or the Board to give you a new exam if you think that the examiner wasn’t competent to provide the opinion. You’ll have to give a good reason why you believe this to be true, but I’ve found that the RO, and especially the Board, will order a new exam if they agree with you.
If you are facing a C&P exam or need other help with a VA disability claim or appeal, Bosley & Bratch is standing by to help. Many of the attorneys at Bosley & Bratch are veterans ourselves, and we have personal ties to what veterans go through when they are struggling to get their benefits. Our purpose is to make everything as easy as possible.