The U.S. Department of Veterans Affairs (VA) provides tax-free monthly disability benefits to qualifying Veterans that become sick or injured as a result of active military service. Once a claimant files for VA disability benefits the claim goes through numerous steps before VA renders a decision.
After VA receives a claim and conducts an initial review it will gather evidence from the claimant, health care providers, government agencies, or other sources. The gathering of evidence is crucial step in the disability claims process and typically includes the VA obtaining a Compensation and Pension (C&P) examination.
C&P examinations are used to determine if a claimant suffers from a disability and to evaluate or assess a disability for rating purposes. If the claimant is not service connected the examiner is generally asked to provide a medical opinion determining if the claimed condition is related military service. These opinions are commonly known as a medical nexus opinion. If the claimant is already service connected for the condition the examiner typically evaluates the current level of severity of the disability for rating purposes.
Historically, the Veterans Health Administration (VHA) has scheduled and conducted C&P examinations. In more recent years, the VA has used private contractors to supplement the VHA in an attempt to make examinations more available for claimants in rural areas and to reduce the backlog or wait time for examinations. The VA relies heavily on the C&P examination report and the report is often one of the most relevant medical records in a claims file considered by the rating board.
At the beginning of April 2020, due to the current COVID-19 pandemic and national emergency, in-person C&P examinations were suspended. Although VA began to resume exams in some locations by the end of May 2020 and continued to expand examinations based on local risk assessments, the COVID-19 pandemic reportedly caused a backlog of 350,000 C&P examinations.
According to a letter, dated October 20, 2020, from Rep. Elaine Luria, D-Va., Chair of the Subcommittee on Disability Assistance and Memorial Affairs (DAMA), sent to the Honorable Robert Wilkie, Secretary, Department of Veterans Affairs, the VA informed her staff of its intention to move C&P examinations from the VHA to private contractors. DAMA is a Subcommittee of the standing Committee on Veterans’ Affairs, overseen by the U.S. House of Representatives. The letter references a prior Subcommittee hearing and recommendations from a Government Accountability Office (GAO) report from 2018, concerning contract vendors, quality, timeliness, and training. The letter notes how VA has not yet fully implemented the recommendations from the 2018 report and voices concern about the VA’s plan to switch to private contractors. It appears the VA’s plan to outsource all C&P examinations before the 2018 GAO recommendations were fully implemented amidst a global pandemic resulting in additional backlog, came as a surprise to Subcommittee.
The Congresswoman’s letter asks the Secretary to answer various questions regarding implementation of the 2018 GAO recommendations and VA’s plan to reorganize its C&P program. The full letter from the DAMA chair, to the Secretary, Department of Veterans Affairs, is available at: https://luria.house.gov/sites/luria.house.gov/files/wysiwyg_uploaded/2020.10.15%20Chair%20Luria%20Ltr%20to%20Sec%20Wilkie%20Re%20CP%20Exam%20Program%20FINAL.pdf.
More general information about the VA resuming in-person C&P examinations can be found at: https://www.benefits.va.gov/COMPENSATION/claimexam.asp. A frequently asked questions (FAQs) sheet on VA C&P examinations is available at: https://www.benefits.va.gov/COMPENSATION/docs/claimexam-faq.pdf#.
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.