The VA Used a Non Physician to Examine Me: Is It a Valid Exam?

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The VA Used a Non Physician to Examine Me: Is It a Valid Exam?

More times than I can remember I have listened to the concerns of veterans about the VA using a non-physician to perform the VA medical exam. I agree wholeheartedly with the concerns that the VA medical exams are less than thorough and are performed by medical practitioners with minimal training.

Unfortunately, the U.S. Court of Appeals for Veterans Claims has ruled that even nurses are competent to provide medical opinions. This means that you cannot succeed in refuting an unfavorable VA medical opinion solely on the grounds that it was not performed by a medical doctor.

But what do you do? How do you refute the VA medical opinion? Although a nurse practitioner or physician’s assistant cannot be rejected automatically because of lack of competency, their training and qualifications are factors that can be weighed in assessing which piece of medical evidence is more persuasive. In general, the VA knows that it can get away with a mere nurse or physician’s assistant because the veteran often has nothing to support his position other than his own statements. And unless the veteran is shown to have medical training, the VA will always side with the medical professional. Even in rare cases where the veteran submits a letter from a treating private doctor, the letter is usually short, without a detailed rationale, and often uses speculative language like “could be” or “may be”, which VA easily rejects. So, the VA has little difficulty in siding with a well-written negative opinion from a nurse over the lay statements of the veteran or a shoddy letter from a private treating doctor.

Indeed, qualifications are important be they are relative. What do I mean? Well, nurse against nurse is an equal fight. Nurse versus doctor, the doctor usually wins. In the VA world, well-written, negative nurse opinion versus poorly-written speculative favorable opinion from a doctor, the nurse wins. So, your job is to stack the deck in your favor by out-gunning the VA with an expert of higher caliber whose opinion is more thorough and better written. Even then, the lower levels of the VA regional office may still try to side with the VA examiner, but if you have done your homework, and have truly out-gunned the VA expert with a top-notch expert whose opinion meets all the criteria for adequacy as defined by the U.S. Court of Appeals for Veterans Claims, then your chances of winning are greatly improved.

If you have read any of my articles over the years you know that I am a big proponent of medical experts. I know that winning the complex appeal requires you to go head-to-head with the VA’s doctors and, hopefully, outgun them with more qualified experts who write better reports.

I recall one case with a very severely disabled veteran. The VA had denied him repeatedly for more than 15 years. He had appealed at least twice to the U.S. Court of Appeals for Veterans Claims and had numerous service officers and even another attorney representing him. The consensus was that his case was not winnable.

The VA had numerous experts of its own who had concluded that service-connection was not warranted. The case involved a complex organic brain condition that was due to toxic exposure. But the problem was that there was a gap of more than 20 years between discharge from service and the onset of symptoms. The VA simply could not accept a link with service given the extensive hiatus without symptoms. So, when the veteran hired us to represent him I knew that the only way to win this claim was to overpower the VA with medical evidence. To do so, I sought out a specialized medical expert from South Africa. He happened to be one of only 9 experts in the entire world with his level of qualifications and training. He had an M.D. degree and a Ph.D. degree as well as a laundry-list of certifications and credentials. His curriculum vitae (his resume) was almost 100 pages long. We retained him to review this client’s case. His services cost almost $12,000. He reviewed over 4,000 scientific abstracts relevant to our client’s condition. He wrote an air-tight medical opinion that the VA could not escape. His credentials were overwhelming. In short, our case, with the inclusion of the expert’s report, carried massive weight. The VA’s doctors looked like lightweights in comparison. The result: the VA had no choice but to grant the claim.

So, if you are faced with a negative VA medical opinion from a nurse or a physician’s assistance, the best thing you can do is to offer a favorable opinion by a medical expert with higher qualifications. If you don’t know where to find such an expert or need assistance in navigating through the sea of medical experts, then it may be time to contact a veterans disability lawyer.

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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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