Medical Opinions & Adequacy of Examinations Overview

Medical Opinions & Adequacy of Examinations Gerardo Vargas Special Assistant for QA gvargas@vfw.org September 17, 2020

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Before we get started For this class we will be using a set of practice Disability Benefits Questionnaires (DBQ) that can be downloaded from the Online Learning Portal in the resources section. Link: https://vfw.psycharmor.org/ Select Resources and then locate and open the file labeled September 2020 vASLT example DBQs If you do not have access to the OLP, email Chris Macinkowicz, Assistant Director, Training & QA. cmacinkowicz@vfw.org 7

Purpose of Class Provide VFW accredited representatives comprehensive instruction on how to determine if a medical examination or opinion is adequate Discuss resources available to accredited representatives that will help determine if an exam is inadequate Review resources that we can provide to claimants to help with medical exams and opinions 8

Lesson Plan 1.Removal of Public Facing Disability Benefits Questionnaires 2.How to determine if an examination is adequate 3.How to resolve inadequate exam issues 4.When to request a medical opinion vs a new exam 9

Loss of DBQs In April 2020, VA discontinued making DBQs available to the public. Authenticity of DBQs Although VBA discontinued making DBQs available to the public, all privately-completed DBQs that continue to be submitted remain subject to validation to confirm the authenticity of the information provided. M21-1 III.iv.3.D.2.f. Nexus Letters are more important now than ever. 10

Loss of DBQs: OIG Report Date: February 18, 2020 Executive Summary In previous audits, the OIG underscored the need for VBA to implement adequate controls on the use of publicly available forms, whose content could be altered to support baseless or exaggerated disability claims. What the OIG recommended The OIG recommended that the Under Secretary for Benefits determine whether public-use DBQs continued to be an effective means of gathering evidence to support claims for benefit entitlement and, if not, take steps to discontinue them. Management Comments The Under Secretary for Benefits concurred with all recommendations. Link: https://www.va.gov/oig/pubs/VAOIG-19-07119-80.pdf 11

Loss of DBQs: Current Developments On April 14, 2020 Rep. Andy Barr (R-KY) introduced H.R. 6493, Veterans Benefits Fairness and Transparency Act to reintroduce publicly-accessible DBQ s . The latest update is that on 07/23/2020 a Committee hearing was held. You can follow the link below for any new updates. https://www.congress.gov/bill/116th-congress/house- bill/6493?s=1&r=5 12

Loss of DBQs: Nexus Statement What is a Nexus statement? A nexus letter can be an essential element of a successful VA claim. It should be written by the veteran s primary care provider or a specialist who treated the veteran for the disability. A complete nexus letter consists of two parts: a medical opinion that connects the current diagnosed disability with an injury, event, or environment which the veteran was subjected to during active military service, and a medical reason supporting this opinion. 13

Loss of DBQs: Nexus Statement Statements from physicians are acceptable evidence for rating purposes if they have met certain criteria, Reference: M21-1.III.iv.5.A.3.j. A statement from any physician can be accepted for rating purposes without further examination if it: is otherwise sufficient for rating purposes includes clinical manifestations and substantiation of diagnosis by findings of diagnostic techniques generally accepted by medical authorities 14

Loss of DBQs: Nexus Statement How to draft a Nexus At least as likely as not is used as the minimum threshold for medical nexus statements more likely than not is a more definitive statement that supports how a medical professional feels when there is more than a 50% chance that the disability is related to the veteran s active duty military service Discussion: What happens if a nexus is not competent? 15

Loss of DBQs: Example 1 I am Dr. Jones and I have examined the veteran John Smith for his disability. It s my opinion that the current disability that John Smith is suffering from is probably caused by injuries or activities that occurred during active military service. Question: Is this statement adequate? Discussion: What do you think about this statement? 16

Loss of DBQs: Example 2 I am Dr. Smith and I have examined the veteran John Rambo for his diagnosed Insomnia. It is my professional medical opinion that the current disability that Mr. Rambo is suffering from is at least as likely as not either incurred by or aggravated by injuries or activities that occurred during active service in Vietnam. After a review of his military occupational specialty (MOS) and extensive conversations with Mr. Rambo, it is clear to determine that his daily duties while deployed resulted in a lack of sleep and disruption of sleep patterns, which resulted in his diagnosed insomnia Discussion: What do you think about this statement? 17

How to determine if an exam is adequate: Things to look for Claimed issues vs. rated issues Were all the issues claimed on the VA form 526ez listed in the narrative? Ensure that exams conducted match the issues claimed, and all issues are addressed properly on narrative 18

How to determine if an exam is adequate: Things to look for Ensure that DBQ s have all the proper boxes checked as well as that they are filled out completely Some sections of DBQ may be skipped based on the disability but ensure that all required sections are completed by the examiner Sometimes, examiners skip boxes which may cause the issue to be denied 19

How to determine if an exam is adequate: Things to look for Who performed exam? Was the examiner properly licensed to conduct exams? (specialty exams) Very common to have VA use non specialty doctors or Nurse Practitioners for exams which require specialty exams If an issue is denied, this can be used to have new exams ordered VA can refer to their own manual which requires specialty examiners for certain issues Reference: M21-1. III.iv.3.D.2 20

How to determine if an exam is adequate: Things to look for Exam request notes vs. actual exam conducted If an exam request document is generated by VA, it will list which issues need to be examined and what information VA needs to decide When reviewing a possible inadequate exam, look for the exam request form and compare it to the examiner s notes 21

How to determine if an exam is adequate: Example 1 In class exercise: Mr. Rambo is claiming Tinnitus. He comes into your office to discuss his recent C&P exam. Review the provided C&P exam and determine if the exam was adequate. (use DBQ 2) Discussion: Is the exam adequate and why? 22

How to determine if an exam is adequate: Example 2 In class exercise: Mr. Rambo received a recent rating decision. He comes into your office to discuss his recent denied claim for right shoulder. He tells you that his shoulder still hurts. He is unsure why VA denied his shoulder. Review the C&P exam provided. Can you determine if the exam was adequate? (see DBQ 3) Discussion: Is the exam adequate and why? 23

How to determine if an exam is adequate: Example 3 In class exercise: Mr. Rambo received a recent rating decision and visits your office to discuss his recent denied claim for Allergic Rhinitis. Review the C&P exam provided. Can you determine if the exam was adequate? ( review DBQ 4) Discussion: Was VA correct in denying claim? 24

How to resolve inadequate exam issues 48-hour review change On April 7, 2020 we received notice of VA s intent to rescind its 48-hour review policy in a memorandum. This eliminated the ability for us to address any errors found in ratings before promulgation. VA s manual change dated April 24, 2020 Accredited representatives have no authority and will not be permitted to review rating decisions before VA issues a decision notice. Reference: M21-1 I.i.3.B.2.k This does not mean we don t review ratings! 25

How to resolve inadequate exam issues: Continued Since VA eliminated the ability for VSO s to review ratings prior to promulgation, we are now forced to appeal any inadequacies rather than directly addressing them with VA. When you find an error, do the following: 1. Update VetraSpec or your claims management system with a communication that rating is incorrect and list the issues. 2. Determine if it s a CUE or AMA action 3. Complete the correct form and notify veteran of your actions 26

How to resolve inadequate exam issues: Continue Discussion: What's working in your office? How are you addressing any issues? 27

How to resolve inadequate exam issues: Example 1 Mr. Rambo completed a C&P exam with QTC for his claim of Tinnitus. He comes into the office to discuss his recent rating denying him. after looking at DBQ for Tinnitus, you notice that examiner agrees that tinnitus is reported. The examiner did not complete all sections and did not provide any remarks. VA denied for lack to diagnosis. (look at DBQ 2) Discussion: Which appeals lane would you recommend Mr. Rambo to use? 28

When to Request a medical opinion vs a new exam Medical opinions A medical opinion is a statement from a medical professional that answers the question: is it as least as likely as not that a current diagnosed injury or illness isrelated to active military service and is a critical part of any successful claim. 29

When to Request a medical opinion vs a new exam: Missing Link When to request a medical opinion? 2. Medical Link 1. Injury, Event, Disease 3. Current Disability Rating Decision VA has a duty to assist (DTA) (38 CFR 3.159) to determine if further development is need for #2 (the medical link) under 38 CFR 3.326 30

When to Request a medical opinion vs a new exam: continue If all 3 elements are met, VA will order exams in order to meet Duty to Assist requirements under 38 CFR 3.159 and 38 CFR 3.326. New claim exams- All3 elements met, and VA does not have enough medical evidence to grant the benefit at the highest level Increase exams- If VA doesn t have enough medical evidence to grant the increase requested, VA should order the exam Presumptive claim exams- If there is not enough medical evidence to grant the claim at the highest evaluation, VA should order the exam Aggravated exams- M21.1 I.1.C.3.g. Secondary service connection and Aggravation: When an Examination Is Necessary 31

When to Request a medical opinion vs a new exam: Example John Rambo comes into your office to review his latest rating decision. VA denied his claim for Allergic Rhinitis Review the narrative provided. You will also refer to DBQ 4 for additional information. Discussion: What action would you recommend Mr. Rambo take? 32

Review In this course we covered the following: How losing access to use public facing DBQ s have made nexus letters even more important now How to determine if a Nexus letter is adequate Things to look for when reviewing and determining if an exam is adequate What options you have if an exam is inadequate When VA should request medical opinions or new exams 33

QUESTIONS?