Refuting VA Exams Part II

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In Part I of this series on how to refute VA exams or VA medical opinions, we discussed the importance of examining the factual assumptions upon which the VA examiner relied in reaching his conclusion against service connection. To reiterate, if the VA examiner assumed inaccurate facts, then his opinion should not carry any weight. An aggressive and hard-hitting rebuttal should be lodged against any VA examiner who builds his case against you on false facts.

But in today’s installment, I want to focus on situations where the VA examiner does not adequately articulate his reasons for his opinion against your claim. For a VA medical opinion to be adequate for rating purposes it must be based on a review of the relevant records, describe the condition in sufficient detail, and provide a rationale for the conclusions. A key case on this topic is Stefl v. Nicholson, 21 Vet. App. 120 (2007).

I want to focus on the VA examiner’s failure to provide a rationale or reasons for his opinion. The U.S. Court of Appeals for Veterans Claims requires that an examiner’s report contain an essential rationale, even if it does not specifically describe the examiner’s journey from the facts to the conclusion. In other words, the reasons for the examiner’s conclusion must be evident from a reading of the medical opinion as a whole. So, if the VA examiner in your case lists all the facts that he gleaned from the medical records and then simply offers a closing sentence that “it is less likely than not that the claimed disability is related to service”, then I would argue that such an opinion is inadequate on the grounds that it does not contain a sufficient rationale. If the VA examiner fails to even hint at the reasons why he reached his conclusion, then an objection to the adequacy of the VA medical opinion must be made. Too often, VA examiners think that because they are the medical professionals that their conclusion is enough to settle the question. But this is incorrect. The VA C&P examiner must still articulate the reasons for his negative opinion. As a veterans disability lawyer who has reviewed thousands of C&P exam reports over the years, attacking the VA examiner’s lack of rationale is a solid method to use when determining how to refute a negative VA medical opinion.

Examine carefully any negative C&P exam reports. If the VA medical opinion is little more than a list of facts with a bald, unsupported conclusion, then there’s a good chance the VA medical opinion lacks a sufficient rationale. A good advocate should immediately object to such an opinion.

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Eric Gang

Eric A. Gang, Esq. is a veterans’ disability attorney who represents disabled veterans nationwide in their appeals for VA disability benefits. He has litigated over 500 appeals at the U.S. Court of Appeals for Veterans Claims and has recovered millions of dollars in retroactive benefits for disabled veterans. His work has been mentioned in media outlets across the country. He publishes and lectures widely in the area of veterans benefits. You can reach him at (888) 878-9350 or www.veteransdisabilityinfo.com.



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