For many veterans seeking disability benefits, the VA’s medical examination, often referred to as the Compensation and Pension (C&P) exam, is a crucial step in determining eligibility for benefits. Despite its significant role in this process, however, the C&P exam is plagued by systemic issues that often disadvantage the very individuals it intends to help. We have seen firsthand at Tabak Law how flawed exams can lead to unfair denials of benefits and how skilled legal representation can correct these errors and secure compensation for veterans.

The Purpose—and Pitfalls—of VA Exams

Under 38 U.S.C. § 5103A(d), the VA is required to conduct a medical examination if there is credible evidence of a current disability and an in-service event that may be related. The purpose of the examination is to determine whether the veteran’s condition is “likely” related to their military service, as defined by 38 CFR § 3.102.

In theory, the C&P exam process is designed to ensure fairness. However, in practice, it often falls short of its intended goal. Some common issues include:

• Examiners lacking specialized expertise, such as a general practitioner assessing complex PTSD or traumatic brain injury.
• Rushed appointments that last only 10-15 minutes.
• Overreliance on incomplete records or failure to thoroughly review the veteran’s file.
• Use of generic language that fails to take into account individual symptoms or conflicts with previous medical evidence.

These issues can lead to negative opinions or inaccurate ratings, directly impacting the veteran’s benefits.

When Exams Violate Due Process and VA Regulations

The VA’s Adjudication Procedures Manual (M21-1) requires examiners to be qualified, conduct thorough evaluations and provide reasonable explanations for their findings. If they fail to do so, the resulting decision may be considered “inadequate” according to case law such as Barr v. Nicholson, 21 Vet. App. 303 (2007). This case holds that a medical evaluation is inadequate if it fails to consider the veteran’s personal statement or lacks sufficient detail.

Similarly, in Nieves-Rodriguez v. Peake, the Court emphasized the importance of medical opinions being based on accurate facts and containing clear rationale. The court noted that if a C&P examiner disregards key evidence, such as private treatment records or consistent symptom reports, their conclusion may have little or no probative value.

How Legal Advocacy Levels the Playing Field

This is where experienced, VA-accredited attorneys like those at Tabak Law make all the difference. We do not simply accept flawed exams, but rather, we dismantle them using legal strategy and regulatory authority. 

To begin, we request exam corrections or new examinations in accordance with 38 CFR § 3.327, which allows for a reexamination if evidence indicates a change in condition or if the original exam was insufficient.

Second, we provide independent medical opinions from specialists who carefully review a veteran’s medical history and provide detailed explanations. Unlike overworked C&P contractors, these experts take the time to understand the full clinical picture, often uncovering connections that the VA may have missed.

Third, in appeals to the Board of Veterans’ Appeals (BVA), we cite relevant precedents such as D’Aries v. Peake, 22 Vet. App. 97 (2008), to argue that the Veterans Affairs (VA) has failed to fulfill its duty to provide assistance under 38 U.S.C. § 5103A. If the Board agrees with our argument, they will often remand the case for a fresh and proper examination.

Real Impact: From Denial to Full Approval

Consider a veteran who was denied service connection for back pain due to a claim by a C&P examiner that there was “no in-service injury.” However, the veteran’s service records clearly document a parachute jump injury. With the help of legal counsel, we brought this contradiction to light, submitted a new orthopedic opinion, and proved that the original examination violated 38 CFR § 4.2, which requires examinations to be “thorough and complete.”

You Deserve More Than a Rubber-Stamp Exam

At Tabak Law, we firmly believe that veterans should never be seen as a mere checkbox on a government form. With over $300 million in recoveries and more than 10,000 clients nationwide, our team of VA-accredited attorneys work hard to ensure that each and every veteran receives a fair and individualized evaluation, rather than a rushed and generic assessment.

If your claim has been rejected based on an unfair VA examination, please do not accept it as a final decision. Contact Tabak Law for a free consultation today and let us help you turn procedural injustice into well-deserved justice.