It happened twice this week--again. The VA obtained another medical opinion for the express purpose of refuting our medical expert. The VA has engaged in the tactic known as "developing to deny." This means that VA realizes that it is stuck with your favorable medical evidence unless it can acquire or "develop" another medical opinion of its own that it can rely on to support a denial of the claim. So what do you do to respond?
Almost every veterans disabilty attorney who has been in practice for any length of time has had this happen. The VA is not trying to assist you in obtaining more evidence to help your claim. Rather, the VA does not want to be bound by the favorable medical evidence. It realizes that it cannot deny the claim, which it wants to do, unless there is some evidence to support the denial. So, prior to issuing a decision, the VA will request another medical opinion. And, no surprise, the VA medical opinion turns out to be against the claim.
The VA then issues a quick decision denying the claim based on the unfavorable VA medical opinion. Often, the VA will issue a denial before a veteran has an opportunity to obtain the VA exam report and file a response. This is an unfortunate and "dirty" tactic by the VA. Here are several suggestions on how you or your veterans benefits lawyer can respond:
- Within a few days after the exam, go to VA in person and demand a copy of the exam report.
- Immediately file a response objecting to the adequacy of the VA medical opinion.
- Obtain a rebuttal opinion from a private medical expert that directly refutes the VA medical opinion.
- Object in writing to the VA's "developing to deny." Explain that there was no legitimate reason for another medical opinion and that obtaining one was impermissible "developing to deny." If necessary, argue the issue on appeal at the CAVC.
- Remember, one issue that must be raised at the agency level in order to be raised on appeal at the CAVC is the competency of the VA examiner. So, if there is an issue with the competency of the examiner, make certain to raise a written objection for the record.
There is no substitute for an aggressive response to VA's tactics of developing unwanted evidence against your claim. As a veterans disability lawyer that handles VA appeals, I can recount many cases for VA disabilty compensation that would have been lost but for aggressive responses to VA examiners. As a law firm that represents veterans when their claims have been denied, knowing when to aggressively fight back is crucial to winning a VA appeal.