When a veteran files a claim with the US Department of Veterans Affairs (VA) for service connected disability benefits, VA will commonly schedule the veteran for medical examination. These exams, commonly called “C&P Exams”, are intended to permit VA to assess both the existence, etiology, and severity of the veteran’s disability.
It may seem obvious, but veterans should be aware that there are consequences for not showing up to a C&P Exam scheduled by VA. The basic rule can be found at Section 3.655 of the Code of Federal Regulations (CFR):
(b) When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.
Under this rule, if a veteran is filing a new claim, or seeking a continuation of an existing claim, he can elect to take the chance that the evidence in his file is sufficient to grant the claim. This could include medical evidence submitted from a non-VA doctor, such as a report the veteran obtained from a private medical professional. It may also include evidence in his record from previous claims or his service treatment records. However, if the veteran chooses to roll the dice and rely upon this evidence, VA will be permitted to deny the claim if it determines that the evidence in the record is not sufficient — and as long as it provides an adequate explanation of its denial.
There may be circumstances when filing a new claim that the veteran (or the veteran’s advocate) believes that there would be a strategic advantage in relying upon private medical records or previously submitted evidence. Although this strategy is permissible, the veteran needs to be aware that he is taking a chance that VA may find that those records are not sufficient for rating purposes. This is not insignificant. If VA provides an inadequate examination, it is required to take the steps necessary to fix the failings of the improper exam. Conversely, even though VA has a duty to assist the veteran it is much more challenging to get VA to contact a private doctor to correct an inadequate medical exam or report. Accordingly, this approach often carries a larger amount of risk.
Matters become a bit more rigid if the veteran is seeking an increased rating for an existing service connected disability. In those circumstances, the veteran is required to attend a C&P Exam if one is scheduled by VA. The failure to attend is an absolute bar to granting the requested increase, even if private medical records or other evidence supports the claim for increase.
VA recognizes that there will be occasions when veterans justifiably miss appointments. The Code permits that if the veteran demonstrates that there was “good cause” for missing the exam, the failure to report will not be held against the veteran and the exam will be rescheduled. Section 3.655(a) provides that examples “of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.” A veteran that misses an appointment should remember that the burden is on him to provide an explanation of the good cause to VA. The failure to provide this information may be damning to his claim.
This article is authored through the collaborative efforts of Travis James West and other legal professionals at West & Dunn, a law firm dedicated to providing high quality legal services to individuals and businesses, with a particular focus on assisting veterans of the United States Armed Forces.