The VA Office of Inspector General (VAOIG) reported1 that every year the Veterans Benefits Administration (VBA) requires approximately 39,600 veterans to undergo an unneeded VA exam for already service-connected disabilities.a This figure includes all types of compensation and pension exams, not just mental health disability evaluations.b
VA regulations2 list several situations in which VBA should not order a Review C&P exam:
- Over 55 years old at the time of the examination, and not otherwise warranted by unusual circumstances or regulation.
- Permanent disability and not likely to improve.
- Disability without substantial improvement over five years.
- Claims folders contained recent or concurrent medical evidence sufficient to continue the current disability evaluation without additional examination.
- Overall combined evaluation of multiple disabilities would not change irrespective of the outcome of reexamining the particular condition.
- Disability evaluation of 10 percent or less.
- Disability evaluation at the minimum level for the condition.
In the past, the most experienced VBA service representatives, whose job title is Ratings Veterans Service Representative (RVSR), reviewed a veterans claims file before sending the veteran for another VA exam. The RSVR’s job was to determine if a reexamination was definitely needed. This RVSR review served as an “internal control” or double-check on VSRs reexamination requests.c Unfortunately, because of increased demands on RVSRs, VBA management removed the internal control responsibility for them without assigning the responsibility another group of employees.
VAOIG reviewed a representative sample of reexamination cases over a six-month period in 2017 (March through August). Thirty-seven percent (37%) of the veterans actually did not need–or were not required to have–a Review disability exam. Nonetheless, VBA required them to attend reexaminations.
The end result of most of these reexaminations was no change to the veteran’s disability rating. However, for a substantial minority (19%),d VBA proposed a reduction in their disability rating. Thus, veterans who never should have been sent for a Review VA exam in the first place, ended up having to deal with a proposed reduction in disability compensation.
Even if a veteran appeals a rating reduction decision and wins, the uncertainty, anxiety, and stress associated with such lengthy appeals can harm veterans’ physical and mental health.
On the positive side, VAOIG and the Under Secretary for Benefits reached agreement on a plan to resume internal controls (double-checking requests for another VA exam) and significantly reduce the number of veterans required to undergo unnecessary review exams.3
Implications for Veterans
(1) If you receive a letter from VBA telling you to schedule an exam for an already service-connected condition, check to see if your situation matches any of the “exclusions” listed above.
(2) Also consult with your Veterans Service Officer (VSO) to see what he or she thinks. Make sure to share this information about unnecessary exams with your VSO.
(3) If one of the exclusions applies to you, call (if you can get an answer–that varies from one VARO to another) or write a letter informing the VBA Regional Office (VARO) of the error.
Send the letter via the U.S. Postal Service (USPS) using the following USPS services: Priority Mail, Certified Mail, Signature Confirmation, and Return Receipt. Go to your Post Office, put your letter in a Priority Mail envelope (it’s worth paying the $7 or so), present it to the clerk, and make sure to save your receipt. Ask your VSO for help if needed.
(4) If VBA does not rescind their notice for reexamination, make sure to attend the C&P exam. Missing an exam creates problems for vets.
Implications for VSOs, Claim Agents, & Veterans Law Attorneys
(a) Establish a routine practice of checking any Review exam notices to see if they are warranted.
(b) Most of you have developed relationships with VARO staff and can probably call to alert them to the error and resolve the problem then and there, saving your veteran an unnecessary C&P reexamination.
(c) If a veteran has received a Proposal to reduce their disability rating, and that proposal occurred as a result of an unwarranted exam, I would think that a letter or phone call to the VARO should solve the problem. (If any of you know differently, please comment below.)
(d) If VBA reduced a veteran’s disability rating based on an unwarranted Review exam, clearly the reduction should be appealed, although I defer to veterans law attorneys with regard to whether or not an unwarranted exam, in and of itself, is grounds for a remand or reversal of the rating reduction. (If you know, please comment below.)
a. The VAOIG report, and the Code of Federal Regulations (C.F.R.) uses the term, “medical reexamination” or “reexamination”, whereas the DBQs (Disability Benefits Questionnaires) and VAMC C&P Clinics use the term, “review exam”.
b. The VAOIG report did not break down the data by type of review exam, i.e., the body system affected.
c. VSR stands for Veterans Service Representative, a job title for less experienced VBA service representatives (compared to RSVRs).
d. Nineteen percent (19%) equals approximately 7,400 veterans per year.
1. Oғғ. Iɴsᴘᴇᴄᴛᴏʀ Gᴇɴ., Dᴇᴘ’ᴛ Vᴇᴛᴇʀᴀɴs Aғғ., Uɴᴡᴀʀʀᴀɴᴛᴇᴅ Mᴇᴅɪᴄᴀʟ Rᴇᴇxᴀᴍɪɴᴀᴛɪᴏɴs ғᴏʀ Dɪsᴀʙɪʟɪᴛʏ Bᴇɴᴇғɪᴛs (VAOIG Report #17-04966-201) (July 17, 2018), https://www.va.gov/oig/pubs/VAOIG-17-04966-201.pdf
2. Reexaminations, compensation cases, 38 C.F.R. § 3.327(b), http://bit.do/CFR3-327
3. Oғғ. Iɴsᴘᴇᴄᴛᴏʀ Gᴇɴ., supra note 1, at 10-11, 22-23.