Part of the VA’s duty to assist includes an obligation to provide a medical examination or medical opinion for a Veteran seeking service connection. The VA must provide an exam or opinion if evidence of record does not contain enough medical evidence to decide the claim, but the file contains enough other information to warrant further development. However, the examinations provided by the VA are not always sufficient. One of the most common errors committed by the VA, in fact, is relying on an inadequate examination.
An examination is considered inadequate when the opinion contained within is not supported by sufficient findings or does not contain sufficient detail. An inadequate examination can be challenged by appealing the decision denying the claim. Sometimes, the ability to challenge an inadequate examination does not provide a Veteran with enough recourse. In those instances, outlined below, it might be wise to pursue an independent medical examination.
Remember, an examination is not considered inadequate simply because a Veteran disagrees with it. An examiner can come to a completely wrong conclusion based on an adequate exam, so long as they supported their findings with sufficient medical evidence. For instance, if a Veteran files a claim for a psychiatric disorder with no prior diagnosis and the examiner diagnoses him with a non-service-connectable personality disorder, it is possible for there to be nothing inadequate about the examination for appellate purposes. The Veteran could argue that his symptoms could also be caused by a service-connected psychiatric condition, but the Board of Veterans’ Appeals will give more weight to the examiner because of his medical training.
In this type of situation, an independent medical opinion can provide a counter-balance. Since the burden of proof on Veteran is low, an independent medical opinion can be enough to grant service-connection. That’s because, if the evidence is basically equal for and against service connection, the VA is obligated to weigh in favor of the Veteran.
Another situation in which it might be helpful to get a medical opinion arises when there are multiple possible causes of a condition for which a Veteran seeks service connection. Often times, a VA examiner fails to address all of the possible causes of a condition, focusing instead on one or two of the causes. While this does render the examination inadequate, the fight to get an adequate examination might be long and difficult. Years will pass while a claim goes through the process of being appealed to the Board once and comes back on remand, and even then there is no guarantee of an adequate examination. The process may need to be repeated many times.
Instead of waiting for their appeal to cycle through the system, seeking an adequate examination, many Veterans choose to seek an independent medical examination to address the cause of their claim. One common condition that falls under this situation is sleep apnea. Perhaps a VA examiner finds that a Veteran’s sleep apnea is due to weight gain, but the veteran suffers from PTSD, GERD, and sinusitis, all of which had been linked to sleep apnea. In addition, PTSD has been linked to weight gain, so that avenue of service connection could also be explored by an independent medical opinion.
Most of the time, a VA examiner providing a compensation and pension examination will be either a general practitioner or a physician’s assistant. While they have knowledge of medicine adequate for most everyday ailments, they are not specialized. Frustratingly, the qualifications of VA examiners can be extremely difficult to challenge. That is because their competence is “presumed,” meaning the Veteran would bear the burden of showing that the examiner was not sufficiently able to analyze the claim.
In this case, a medical opinion from a specialist could serve to both challenge the VA examiner’s competence and assist with service connection. If the specialist disagrees with the physician’s assistant who did the VA exam, it can serve as a basis to challenge the competency of the VA examiner. At the same time, if the specialist’s opinion supports service connection, it may be the tipping point to allow the VA to service connect the claim.
Perhaps the most important time to get an independent medical opinion is when the claim does not have enough support for the VA to provide an examination. While a Veteran can usually bolster their claim with lay evidence talking about their symptoms, without a diagnosis it can sometimes be extremely difficult to get an examination. Again, the Veteran can challenge the VA’s failure to provide an examination, but it’s a long fight and not always winnable.
Providing the VA with a positive examination helps kick start the claim. It can provide a diagnosis, link the diagnosis to service, and sometimes be enough to warrant service connection on the basis of the medical opinion alone. Even if service connection is not possible based on the independent medical opinion, it can trigger the VA’s duty to assist the Veteran, providing another exam or seeking records as necessary.
The final reason to seek a medical examination for service connection is time. The VA appeals process can seem almost endless. Veterans wait years between decisions, only to find that their claim has continued to be denied and they must continue the appeal. Some claims bounce between the Board and the Regional Office multiple times, with the Board demanding an adequate examination and the Regional Office continuing not to provide one.
A medical opinion can stop the cycle. A well-reasoned independent medical opinion can form the basis for service connection, allowing the Veteran to move on out of the VA appeals process. For many, the time saved on their appeals is worth the money they have to expend for a medical opinion.
Berry Law’s team of skilled VA disability appeals lawyers have experience assisting Veterans appealing a claim that was denied or rated low. We understand when a Veteran should seek a medical opinion and how it can bolster their claim. If you or somebody you know would like to appeal a VA decision, contact Berry Law today.
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