How to Discredit an Unfavorable VA Exam
Nothing is more frustrating than a VA compensation and pension (“C&P”) exam report that wrongly concludes service connection is not warranted. And most of VA’s denials are based on these VA exam reports.
Therefore, having several techniques for discrediting a VA doctor is a necessary part of a veteran’s strategic arsenal. First, if VA conducts a C&P examination the veteran should obtain a copy of the exam report as soon as possible. Without the exam report, it is difficult to know what the VA doctor said.
Once a veteran obtains the VA doctor’s report–and assuming the report is unfavorable–there are several items that should be evaluated. A veteran should make sure that the VA doctor reviewed the claims file. Failing to review the claims file is not always required, but in cases where service-connection is the issue, it is important to evaluate the historical evidence. Thus, if the VA examiner did not review the claims file, then the veteran should submit written argument that the VA examiner’s opinion is uninformed since he failed to review the claims file.
Besides failing to review the claims file, the VA examiners will often assume facts that are not true. A veteran should carefully look at the underlying factual basis for the VA examiner’s conclusion. If the facts upon which the examiner relied are contradicted by the evidence in the file, then the veteran should submit an argument asserting that the VA exam report is entitled to zero weight since it relied on an inaccurate factual premise.
Another basis of attack concerns the VA examiner’s rationale. It is becoming more common to see the VA exam reports in the form of a checklist. These reports simply ask the doctor to check-off certain boxes. Typically, the VA doctors do not provide adequate reasons for their opinions. In other words, the VA doctor will simply give a bottom-line conclusion that it is less likely than not that the disability is linked to service. Under these circumstances, the veteran should submit argument attacking the examiner’s report as being inadequate due to the lack of a rationale. The VA doctor must give reasons to support his conclusion, and the failure to do so should entitle the opinion to zero probative weight.
Keep in mind that if you do not object to the competency of the VA examiner while the case is still at the administrative agency, you will not be able to argue that issue on appeal at the U.S. Court of Appeals for Veterans Claims.
But perhaps the best way to discredit a VA examiner is to obtain a rebuttal opinion from a private medical expert. The private medical expert must have reviewed the claims file first. The private medical expert must then thoroughly explain why the VA examiner is wrong and point out factors that the VA examiner failed to consider. To add more weight to the rebuttal opinion, the VA examiner should also cite to scientific articles or treatises.