Don’t Let a Faulty VA Exam Sink Your Claim

It is not uncommon for a VA disability claim to be awarded five, ten, or even twenty years after it is originally filed.  It’s no secret– VA claims often take a very long time.  However, so long as the “claim stream” is kept alive by meeting all time deadlines for filings and appeals, upon service-connection, a Veteran will receive a back benefits award equaling the monthly payments owed since the time they first filed for benefits.  Frequently, a claim is denied by the regional office, then the denial is reversed by the BVA; and the claim is then readjudicated by the regional office.  That process will take years; and then, the time-consuming process may be repeated multiple times, with the BVA later requiring additional errors to be corrected, or different evidence to be sought and obtained.

One common error is the VA’s failure to ensure that a doctor with the proper medical specialty examines the Veteran and opines on whether a disability (medical condition) is related to a  Veteran’s military service.  The VA often has physician’s assistants or general practitioners examine veterans for complex cardiac, neurological, or orthopedic issues (to name a few), despite the fact that non-specialists lack the particular experience, knowledge and training of specialists in those fields.  In addition, although the VA is required to identify the medical field/specialty of the examiner issuing an opinion, examination reports sometimes fail to include that information.

If a Veteran doesn’t object to the report’s failure to identify the physician’s credentials/specialization, then the VA exam will stand uncontested.  The faulty examination report may then be used by the VA to deny a Veteran years or decades of rightfully owed back benefits.  These awards can be substantial, but are often denied where the Veteran does not have an experienced attorney handling their claim.

In a recent single-judge opinion, Judge Hagel of the Court of Appeals for Veterans’ Claims, describes and then rectifies the problem:

[T]he Board summarily found that it ensured substantial
compliance with its remand order because the “record includes a
report of a June 2010 VA examination that includes the requested
opinion.”  The Board failed to address the fact that the
examiner never indicated a particular specialty or whether that
examination complied with its specific directive that Mr. Falgout was
to undergo an “orthopedic/neurological examination, by an
appropriate specialist.”

Although the Board is “entitled to assume the competence of a VA
examiner,” this alone does not relieve the Board of its duty to ensure compliance with its prior remand and provide adequate reasons or bases for its decision. Because the Board failed to “recognize[ ] the deviation from its [April 2010] request,” the Court cannot conclude that the Board ensured substantial compliance with its April 2010 remand order.

Falgout v. Shinseki, 2014 WL 1660369, *1 (April 28, 2014) (internal citations and quotations omitted).

If you need to appeal a claim denial, or a favorable decision that denies years of back benefits you are owed,  call (504) 235 4075 to speak to an attorney today.