Deeper Problem Behind
Recent VA Scandals?
What Advocates Can Do To
Protect Claimants
1
I. Incidents of VA Misconduct
• VA rocked by scandals in 2008
• VARO NY-- 390 cases showed 56.4% error
rate in date of claim
• VA claimed errors only affected measures of
TIMELINESS & some PERFORMANCE
EVALS
2
I. Incidents of VA Misconduct
• over 700 pieces unopened mail in shredder
bins at NY VARO
• Some ROs improperly placed docs
necessary to outcome of claims in shredder
bins
• 11/08—VA ee & vets indicted--conspiring to
defraud of $1.9 mil by submitting false claims
3
II. VA Policies May Contribute to
VA Misconduct
• Promotions and perform. evals linked to # of
cases completed
• Creates motivation to finish cases regardless
of accuracy
• Hurts vets, creates cynical VA employees
4
III. New VA Policy on Managing
Paper Records
• Shredding controlled by records mgmt
officer. EEs submit docs to be reviewed
before shredding
• New policy may reduce shredding of crucial
documents, BUT doesn’t address problem of
##s vs. quality
5
IV. “Special Claims Handling
Procedures--Missing Documents”
• New Rules--address submitted docs that
are missing from C-file
• New Policy--covers docs filed betw 4-07 &
10-08—if vet notices doc missing, resubmit doc & request be handled under
new policy—request made by 11-17-09 6
IV. “Special Claims Handling
Procedures--Missing Documents”
• If vet has no copy, VA should help vet get
copy
• If missing doc is app for benefits, file
another app
• If vet thinks docs submitted BEFORE 04-07
destroyed/lost, needs credible evidence that
doc submitted
7
V. Examples of Special Claims
Handling Procedures
• Vet tells VSR original claim filed 05/07
• No record of claim
• VA solicits new app
• VA gives new exam
• If benefit granted, eff. date is date of original
submission
8
VI. Advocacy Advice
• New procedures seem to defer to vet
• Enforces importance of keeping COPIES of
all documents submitted & evid of VA’s
receipt
• Closely review any case under the “Special
Claims Handling procedures for Missing
9
Documents”
FIXING THE BROKEN VA
CLAIMS SYSTEM
Is it Broken?
How do we fix it?
10
Background
• VA Claims Process in Trouble
– As of 1-09:
• 389,000 cases waiting to be rated
• 171,155 non-rating cases awaiting
adjudication
• 187,973 appeals awaiting resolution
– Combined # awaiting resolution = 748,128
11
Quality of RO & BVA
Adjudications
• Combined remand/reversal rate for BVA
cases = OVER 50% during past 10
years, but 40%, if remands due to
change in law & remands basis of
new evidence
• TOO HIGH for non-adversarial
process where benefit-of-doubt
applies
12
Additional Embarrassment
• NY VARO--managers manipulate
stats to inflate performance
• Could disadvantage vet claimants
• ee in Louisville RO indicted for fraud
• VAROs caught shredding documents
relating to pending claims
13
Effects on VA System
•
•
•
•
Delays/inaccuracies
Premature denials
Confusion
extension of already time consuming
process
• Increasing frustration (among vets,
VSO’s, VA ee’s, Congress)
14
Proposed Solutions
• Blue ribbon panels, special commissions,
professors – all offer solutions
• Focus on reducing/eliminating current
procedural rights
• Some suggest:
– eliminate right to add evidence after
filing appeal
– operate like IRS: grant claims, do
random audits
15
Proposed Solutions
• Goal of solution: not to fix backlogs or
make it harder/easier to get benefits
• Primary goal: deserving vets get benefits
correctly, promptly and efficiently
• No “magic bullet” to fix system
• Each proposed solution has own set of
problems
• Granting claims & then auditing = more
time and money
16
Necessary Changes
• VA adjudicators/managers held
accountable
• Rational & realistic performance standards
• Bonuses dependent on . . .
• Statistical amnesty
• Impact of transferred manager
• Reconsider CPI
• Punish statistic manipulation that makes
station managers look better
17
Necessary Changes
• VA -- change way work measured
• Work credit ONLY after appeal period
expires or appeal resolved
• Different & better case tracking
system
• Allows VA to properly measure work,
hold staff accountable & provide
incentives to fairly decide claims
18
Necessary Changes
• Create independent Q-Review system
• Outside supervision of Under Sec’y
Benefits
• Q-Review ees shielded from impact of
negative findings
• Redefine QR so entire file reviewed & RO
accountable for all errors noted
19
Necessary Changes
• Redefine errors as
– Material: over/under payments, not
adequate due process, failed to decide
raised issues & inferred issues,
premature grants/denial
– Procedural: inadequate/improper
development, inadequate/confusing info
to claimant, didn’t request/conduct
proper VA medical exam
20
Specific Problem Areas
• Hearing Loss Claims
– concede noise exposure, develop for continuity of
symptoms
• PTSD & other mental disabilities
– concede stressor if vet served in combat zone
– VA exam inadequate if sympts not consistent w/ GAF
• Musculoskeletal conditions
– clarify loss of function due to pain
– fix eval of back conditions based on “incapacitating
episodes”
21
Specific Problem Areas (Cont.)
• Aid and Attendance (SMC)
– mentally incapacitation applies to vet requires
regular care to protect from dangers incident
to environment
• SOC & SSOC
– eliminate current confusion
– when SOC issued, VA tells claimant “if
following evid submitted, you may be granted
the benefit”
• Lay evidence
– better training for ees to define and how to
consider
22
Streamlining
• Give suggested improvements
fair hearing
• Set objectives & accept changes
that fit objectives
23
Streamlining
• Ideas Proposed:
– elevate DROs to ALJs -- appeal direct to
CAVC
– reduce % evals under any DC to 4
– IRS system: grant all claims, then audit
– No right to add new evid after filing NOD
– limit # of RO decisions after filing NOD
– limit # claimants one service officer can
represent
24
How to Evaluate Medical
Linkage Opinions
25
I. Introduction
• 3 Criteria for Service Connection
– Medical evidence of current disability
– Medical or lay evidence of in-service incurrence
or aggravation of disease/ injury
– Nexus between disability and in-service event
(usually a medical opinion)
26
I. Introduction
• Five ways to establish Nexus:
–
–
–
–
–
Direct link between injury and in-service event
Aggravation theory
SC Based on Presumption of in-service onset
Secondary SC
Disability caused by VA treatment or voc rehab
• Most ALWAYS preferable to obtain private medical
opinion over VA opinion
• Success v. failure hinges on HOW VA assesses
linkage evidence – Key is STRENGTH of opinion 27
II. Relevant Factors
1. Competent?
2. Expert’s Experience?
3. Medical Treatise Evidence
4. Personal Exam of Vet
5. Expert Reviewed Claims File?
28
II. Relevant Factors (cont.)
6. Evaluating Vet’s History
7. VA Mistakenly Rejects Some Medical Opinions
8. Certainty of Expert
9. Did Expert Give Linkage Opinion?
10. Speculation Issue
11. Consider all Favorable Evidence?
29
1. Competency of Medical
Evidence
• Definition of competent medical evid
– Given by one qualified by education, training, or
experience to offer med statements/ opinions
• NOT statements of lay persons
• Required when medical Q’s are raised
• medical professionals other than medical Drs –
evid accepted but may have less value
30
2. Level of Expert’s Experience
• Training is one, but not the sole factor in
determining value of opinion
• Education and length of time treating vet taken
into account when considering opinion/
diagnosis
• Vet who is medical professional may offer
opinion on his/her own condition
31
3. Uses/ Limitations of Medical
Treatise Evidence
• Considered competent medical evidence to
support service connection
• can convince dr. of medical linkage
• Can trigger DTA—may trigger duty to make
VA give medical linkage exam/ opinion
32
4. Personal Exam of Vet
• Beneficial for Dr. to personally
examine vet
• Guerrieri v. Brown –
– value of medical opinion based on dr.’s
personal exam of patient + expert’s
knowledge & skill in rendering opinion
33
5. Review of VA Claims File?
• Disabilities viewed in relation to history
• VA may downgrade medical opinion where Dr.
failed to review C-file
• Mariano v. Principi - failure to consider file may be
FACTOR in assessing opinion
• BUT neither review nor absence of review
dispositive
34
6. When Opinion Based on Vet’s
Retelling of History
• VA may reject opinion that is:
– Based on facts provided by vet previously
found inaccurate; or
– Based on facts by vet that are contradicted
by other facts present in the record
VA may NOT disregard med op SOLELY b/c
based on history by vet
35
7. VA Mistakenly Rejects Med
Ops based on Lay Statements
• Buchanan v. Nicholson – not required that
lay evid be corroborated by med tx records
to be credible
– lack of contemporaneous med records does
not make lay evid not credible
36
8. How Certain is Expert?
• SC--requires approx 50% chance disability
related to service (as likely as not)
• If Dr says “possible” VA may deny, saying
approx. 50% standard not met
• McLendon says opinions expressing ANY
certainty indicate disability may be service
related
37
9. Did Expert Give Linkage
Opinion?
• Dr. may hesitate to offer op if not
“absolutely certain”
– VA may call such ops “non-evidence”
– If vet entitled to med linkage opinion under
DTA, press VA to obtain med op
• Remember – absolute certainty NOT
necessary
38
10. Dr Says: Can’t Give Op w/o
Speculating
• Reason. doubt – substantial doubt, w/in
range of probability, unlike pure speculation
or remote possibility
• Reason. doubt resolved in vet’s favor
• If Dr. says can’t give op.—this is not
negative evidence
39
11. Must Examiner Discuss ALL
Favorable Evidence?
• Roberson v. Shinseki – Dr. need NOT discuss ALL
positive evid. , just sufficient to fully inform VA rater
• BUT Gabrielson v. Brown – faulted Board for
relying on op. that failed to discuss positive evid.
• Advocates--challenge medical op. that ignores
positive evid, or evid that contradicts dr.’s
conclusion
40
Bradley v. Peake
41
Vietnam War Veteran appealed
two separate March 3, 2006
decisions of the Board of Veteran’s
Appeals
•
42
• No CUE in effective date of
compensable eval for SFWs
• Denied EED for scars & muscle
injuries
• Denied IR for scars & muscle injuries
• Denied SMC benefits
• Denied SC for chronic pain syndrome
43
•On August 29, 1968 he sustained
multiple injuries from a booby trap-received Purple Heart
•Vet served from 2/68 to 11/69,
including in VN.
44
• 12/69--applied for comp for his SFWs
• Received:
• 10% eval for Shell Fragment Wounds
• 10% eval for retained foreign body
• non-compensable rating for multiple
scars.
45
• Medical examinations in 1971, 1976,
and 1977 confirmed initial disability
ratings.
• 7/83—received IRs and received SC for
PTSD, all effective March, 1983.
• Throughout the 1990s VA increased
disability ratings, added new ratings and
changed effective dates of these new
ratings
46
• 5/99 Vet filed NOD as to denial of
IRs
• Decisions and appeals followed,
ultimately resulting in current
appeal
47
• 1/05 rating decision reflects:
– Veteran received compensable eval
for 13 scars, and was SC for 10
separate muscle group injuries.
– granted TDIU from March 25, 1983,
until June 8, 1992.
– granted 100% combined rating from
June 8, 1992.
48
– (A) considering and deciding a
request for revision of the August
1994 RO decision based on CUE that
Veteran asserts he never made;
– (B) not assigning an earlier effective
date for all his service-connected
scars and muscle injuries;
– (C) not awarding a separate disability
compensation rating for each scar
injury and each muscle injury;
49
– (D) not awarding SMC;
– (E) denying service connection for his
chronic pain syndrome;
and
– (F) providing an inadequate
statement of reasons or bases for the
denial of service connection for his
chronic pain syndrome.
50
• Partial Remand to Evaluate:
– Whether Veteran may be awarded a
separate disability compensation rating for
each scar
• Claims remainder of the Board’s
Findings are Plausible and should be
affirmed.
51
•Special Monthly Compensation
•▪Veteran’s 100% Combined
Rating Argument
•▪Veteran’s TDUI Argument
•Application of 38 U.S.C. §
1114(s)
52
The heart of the issue
is what qualifies as a
“total” rating for SMC
purposes.
53
ƒ
Vet arguments why
entitled to SMC:
ƒ 100% combined
disability rating
ƒ 70% disability rating for
PTSD.
ƒ Alternatively:
▪ 100% TDUI rating for
PSTD
▪ Additional disabilities
rate at 60% or more.
ƒ
§ 1114(s): Veteran
with a total disability
rating & additional
disability at 60% or
more receives SMC
ƒ
§ 3.350(i): SMC paid
when vet has single
SC disability rated 100
percent and has a
separate, additional
SC disability or
disabilities
independently rated at
least 60 percent
54
• In this instance, it is clear from the
use of the language and the
structure of the sentence that
Congress did not intend that a 100%
combined rating suffices for "a
service-connected disability rated
as total."
– Congress used the article "a" and
singular "disability" when establishing
"a service-connected disability rated as
total" as one of the requirements for
SMC under section 1114(s).
55
• Congress permits the second
requirement to be met with either
a single "disability or disabilities
independently" rated at 60%.
– This demonstrates congressional
understanding that multiple
disabilities can be combined into a
single rating
56
ƒ Veteran
notes that for
purposes of establishing
schedular TDIU, multiple
disabilities arising from a
single accident are
considered one disability.
57
• VA argued--Fails to recognize that
the direction to treat multiple
disabilities as one is specifically
applicable only to TDIU ratings,
not to 100% rating.
• Veteran points to no such
direction, and we find none, in
section 1114(s) or its
implementing regulation.
58
• Veteran contends that his TDIU
award satisfies the statutory total
rating requirement in 38 U.S.C. §
1114(s).
• The Secretary argues:
– Section 1114(s) requires the total
rating to be not only for a single
disability, but a single schedular
disability
• e.g., a schedular rating of 100%
59
• The phrase "a service-connected disability
rated as total" contains no restriction to a
total schedular rating and no exclusion of
other total ratings, such as a TDIU.
– Initially, the Secretary's implementing regulation
expressly prohibited a rating based upon individual
unemployability from satisfying the "total"
requirement of section 1114(s).
– We find nothing in section 1114(s), or the statutory
scheme as a whole, that limits "a serviceconnected disability rated as total" to only a
schedular rating of 100%.
– It is possible for a veteran to be awarded TDIU for
a single disability and thereafter be awarded
disability ratings for other conditions.
60
– We find nothing in section 1114(s), or
the statutory scheme as a whole,
that limits "a service-connected
disability rated as total" to only a
schedular rating of 100%.
– It is possible for a veteran to be
awarded TDIU for a single disability
and thereafter be awarded disability
ratings for other conditions.
61
• The change from TDIU to a 100%
combined rating was made be
more beneficial to the Veteran
• The TDIU rating was subsumed by
the 100% combined rating.
62
• The Secretary is required to
maximize benefits
– see AB v. Brown 6 Vet.App. 35, 38
(1993)
• Under the circumstances of this
case, a TDIU rating for PTSD alone
would entitle Veteran to SMC
benefits.
– This is an additional benefit not
otherwise provided to persons with a
100% combined rating.
63
• Secretary should have assessed whether
Veteran’s TDIU rating was warranted based
on his PTSD alone before substituting a
combined total rating for his TDIU rating.
• Because a finding that Veteran’s PTSD is
sufficient, on its own, to warrant a TDIU
rating, would mean that Veteran is also
entitled to SMC, the decision denying him
SMC will be vacated and the matter
remanded for further adjudication.
64
• SMC benefits are to be accorded
when a veteran becomes eligible
without need for a separate claim,
regardless of when the issue was
raised.
• Accordingly, any effective date
must be based on that point in time
when the evidence first supported
an award of SMC
65
•Affirmed:
•Decisions denying earlier effective dates and increased
disability ratings for Veteran’s multiple muscle injuries
•Set Aside:
Decisions addressing CUE in the August 1994 RO decision,
entitlement to ratings in excess of 10% for residual
scarring, and service connection for chronic pain syndrome
•Reversed:
•Decision denying special monthly compensation
•REMANDED:
• For further adjudication
66
Inadequate VA Exams: How To Identify Them & What To Do
67
I.
Introduction
A. “Inadequate exams”:
VA Training Letter on IVDS states:
Raters don’t always insist on adequate exams. Ex: Vet was suspected of malingering. An inadequate exam was performed but did not include any tests, yet vet was assigned 60%.
68
VA Thinks:
“Inadequate Exams” are when vet get high rating b/c dr. didn’t do good testing—vet gets high eval. Advocates think: bad exams violate DTA & vet gets lower eval than he/she deserves
69
Problems with this topic:
• People don’t want to criticize doctors • People don’t feel medically qualified to evaluate exam reports But:
• lay advocates can learn to analyze exams to help clients win benefits
70
Quick Advice: What to Do
• If at Board, VARO, or AMC, submit a persuasive, private exam report that complies with VA exam requirements
• If you see bad exam, let VA know and explain so VA can re‐do exam (b4 denial of benefits?) 71
II. Indentifying Inadequate Exams
A. Exam Must be Thorough—Compare to Guide
• Did Dr. do tests listed in VA Clinicians’ Guide
• Guide tells VA Drs. how to perform various exams • Guide has copies of exam “worksheets” (but not binding on VA)
72
VA Clinicians’ Guide
• compare exam report to applicable worksheet • If listed test not performed, argue exam insufficient • If reviewing exam report before VA decision, and exam inadequate, object
73
Example of an Inadequate Exam
• Vet c/o painful knee joints, has evid. of pain in service • Vet given VA exam, c/o pain, VA Dr. doesn’t order X‐ray
• Try to submit private x‐ray evidence of arthritis • If at Court or Board or vet can’t get private exam, argue VA exam was inadequate b/c
no X‐ray.
74
VA Clinicians’ Guide:
Examiner should obtain an image:
[I]f vet is only claiming service‐connection . . . not yet service‐connected, and no past imaging studies are available documenting arthritic changes, appropriate x‐ray studies should be obtained and results included with final report.
• In case of “vet. . . claiming service connection . . . x‐
ray studies should be obtained.”
75
B.
Exam Report is Confusing
• Hicks v. Brown­­ ortho exam scheduled to see what joints affected by arthritis. • VA Dr.: – "All joints painful except hip joints"
--"no pain in hip, there is some stiffness"
– “popping in both hips with range of motion”
– “hips painful near full range of motion”
76
CAVC Decision in Hicks
• Report found minimal DJD
• Court stated: unclear whether reference to popping in hips and pain near full range of motion in exam report was a finding upon exam or description of condition evaluated • remanded b/c inadequate exam
77
C.
Special Rules for Seeing if Exam/Opinions Adequate
• Court considers “expert witness” rules in Federal Rules of Evidence
• Court says: VA Drs. & private Drs in VA benefit cases are expert witnesses 78
Special Rules
• Federal Rules of Evidence: expert testimony may be received from qualified expert if:
(1) testimony based on sufficient facts or data;
(2) testimony is product of reliable principles; and (3) expert applied principles reliably to facts.
79
(1) Is Examiner Sufficiently Informed of Significant Facts?
• For years, rule was that opinion from Dr. who reviewed claims file was usually more valuable
• Problem for vets b/c claims file is at VA & VA Drs. had easy access • Private Drs. had to get complete copy of file for review
80
Nieves­Rodriguez v. Peake
Court stated:
•
•
Private Dr. opinion can’t be discounted solely b/c Dr. did not review C‐file.
Board may not prefer VA Dr. over private Dr. solely because VA Dr. reviewed C‐file
• Value of opinion does not turn on whether she read C‐file. Issue is extent to which Dr. informed of clinically significant facts of case and Dr.s’
medical reasoning 81
Adequacy of Exam
• consider whether Dr. familiar w/ clinically significant facts in vet’s history. • Where Dr. makes obvious misstatement of fact about medical history, can show exam inadequate.
82
Don’t Forget Basics
• Give Dr. copy of C‐file & have Dr. say file was reviewed • Unless located at RO, will have to make FOIA request to get copy of C‐file 83
(2) Did Dr. Offer Sound Reasons for Conclusion/Opinion
• explain reasoning
• Opinion/report not entitled to weight if it has only data and conclusions but no reasons
• Bare conclusion is not enough • Bare conclusion not probative without factual predicate • Merely listing evidence/data before conclusion is not adequate—must explain reasons
84
3 “Musts” for Dr. Report/Opinion
• Expert must: (1) lay out basic medical facts of case; (2) state conclusion (likely as not); and
(3) explain how expert reached conclusion (explain logic, medical principles, and/or medical texts or studies used to reach conclusion) 85
Example: Miller v. West
• Vet discharged due to schizophrenic reaction, later claims SC for mental disorder • STRs contained 2 medical records that noted only that condition EPTE • CAVC: reports contained “a bare conclusion” and not considered clear and unmistakable evidence to rebut presumption of soundness
86
Example: Stefl v. Nicholson
• Dr. asked whether vet’s polyps service related
• Dr. said that nasal condition not on presump. list
• CAVC : Medical opinion that condition not related to service b/c not on presumptive list, without considering direct service connection, is inadequate. • With no medical opinion addressing relevant facts and medical science, VA relies on own lay opinion, which is forbidden 87
D. Special Rules ­­Mental Disorder Exams
• Mental disorder claims more complex b/c
– § 4.125, states:
if dx of mental disorder does not conform to DSM‐IV or not supported by exam findings, VA should return report to Dr. to substantiate the dx
88
Disputing Diagnosis
Example 1:
• may be impt vet get dx of PTSD, not another dx b/c PTSD claims don’t require continuity of symptoms between service and date of claim • If vet is unable to provide continuity evid., preferable s/he have PTSD dx
89
Example 2:
• When no evidence of mental disorder in service but evidence of manifestation w/in 1 yr after, preferable that vet receive diagnosis of psychosis rather than neurosis
90
Other Considerations in Mental Disorder Claims
Consider:
• does exam have info on vet’s occupational and social impairment to evaluate mental disability under VA Rating Schedule
• GAF score consistent with symptoms? • M21‐1MR requires VA to return report as inadequate if it –
–
–
–
No description of symptoms No identification of Stressor
Doesn’t reconcile prior differing reports fails to conform to DSM‐IV
91
1st Example—DSM­IV
• If report dx paranoid schiz, does vet suffer delusions/hallucinations –b/c these criteria for paranoid schiz dx
• If vet dx incorrectly, return exam b/c
inadequate 92
2nd Example
• If symptoms listed in report do not support low GAF score assigned. (1) argue exam report inadequate‐‐send back to explain how GAF score assigned; or
(2) contact Dr., point out inconsistency, get better report; or, (3) get 2nd Dr. to do exam & give favorable report that is consistent. 93
3rd Example
• situation where medical report seems to establish GAF score is too High & does not reflect severe degree of vet’s disability • Argue medical evid contradicts Dr.’s medical opinion & vet has to have another exam or have Dr. explain inconsistency 94
E. Requirement Exam be Contemporaneous
May be possible to argue exam is inadequate because:
• occurred too long ago and • no longer accurate indication of type or extent of disability
95
Claims for Increase or Disagreement with Rating
Claims for increase or where issue is initial evaluation of SC disability, eval must be based on "contemporaneous" exam.
• Proscelle – remand b/c record not adequately reveal current state of disability;
• Francisco ­ where increase in rating is issue, present level of disability is of primary importance 96
• Bolton ­­ vet claims worse than when rated, and evid too old , VA must provide new exam • Caffrey – error to rely on 23‐month‐old exam where vet indicates material change in disability since exam 97
Contemporaneous Exam: EVALUATION OF SC CONDITION
• In evaluating SC disability, exam inadequate if vet has claimed WORSENING since last exam. • An exam is unlikely too old for rating unless vet tells VA his condition has worsened since last exam. 98
Contemporaneous Exam­­Claim for SC
• Palczewski: does VA have duty to give current exam where vet has not alleged condition got worse • Vet claimed mere passage of time should trigger VA’s duty
• No duty unless vet claims worsening
99
F.
Eval of SC Conditions: Exam Requirements
• Rules: Report Must
(1) describe symptoms (to classify disability) (2) Have "full description of effects of disability on ordinary activity"
(3) Be thorough & contemporaneous, take into account relevant records of prior treatment
100
(3) Musculoskeletal Disorder Requirements: note evidence of functional loss, including pain, facial expressions, wincing, or similar behavior suggestive of pain
(4) Opinion must be based on facts – if Dr. bases opinion on bad facts‐‐taints opinion (5) Question to Dr. can’t suggest answer or limit Dr.’s inquiry (6) Question to Dr. must fully and accurately reflect disability picture
101
G. Sniff Test: Claims for SC
Good chance exam inadequate if:
(1) report or linkage opinion confusing
(2) contradictory statements about linkage to service
(3) Unfair overview of Facts (4) Fails to fully address all linkage theories (ignores aggravation aspect
(5) Fails to actually give an opinion 102
Sniff Test: Claims for Increase
Good chance exam inadequate if:
(1) Report at odds w/ lay evidence (2) Report at odds w/ other medical reports on vet’s symptoms or condition
103
III. Best “Inadequate Exam” Cases
Barr
• Once the gives exam (even if not obligated to), exam must be adequate or notify vet why not • In practice, even if VA doesn’t have to give exam/opinion, if they do it must be sufficient exam
104
Best “Inadequate Exam” Cases
Stegall • If Court or BVA orders exam, make sure vet gets what was ordered • If prior remand, must review prior remands to see if exam consistent with order • only "substantial compliance“ required
• In practice, VA must do whatever was ordered­­or case sent back 105
Best “Inadequate Exam” Cases
Hyder
• Vet was seeking NSC pension • examiner recommended exam by orthopedist or neurosurgeon—not done • BVA‐‐vet not P&T • CAVC‐‐send vet to specialist if Dr. recommends it • Practically speaking, if a doctor recommends a specialist look at vet, vet must be sent to a specialist.
106