This is probably one of the most frequently asked questions in my inbox:

“Chris, I just missed my VA Exam….what do I do?”

Listen, we are all human – and being human, life often has this weird way of getting in the way of our VA claims.

The nice thing about the VA Claims Process – as complex and nerve-wracking as it is – is that there are relatively few ways to screw up your VA claim permanently.

Here are the 3 Biggest Ways that I have seen Veterans Screw up their VA Claim for Good…

1) Miss an appeal deadline (Notice of Disagreement or VA Form 9, for example)

2) File a CUE claim at the wrong time

3) Missing your VA C&P Exam

I’ve talked plenty about the first 2 quite a bit – so let’s talk today about a question that I am frequently asked….

What Could Happen if I Missed My VA Exam?

First of all, don’t panic.  The answer to that question depends largely on what type of VA Claim you have:

1) If you have an Original VA Claim for compensation, and miss your VA C&P Exam, the Code of Federal Regulations (aka, the CFR) direct the VA to rate the claim without the exam.

2) If you have a claim for increased compensation, 0r if you were trying to reopen a previously denied claim, and miss your VA C&P Exam, the CFR tells the VA to deny the claim.

3) If your VA C&P Exam was for a “continuing entitlement” situation – when the VA has either proposed reduction or is conducting a review of your rating (this most commonly occurs in 1-3 years after the initial rating in a mental health condition and within 1 year (ish) of a period of Temporary Total Disability) – then the VA is going to send you a proposal that it is reducing your rating to the minimum evaluation (if there is one for your condition), the lowest “protected” rating you have, or if neither of those exist, they might discontinue the rating altogether.

If you want to read the COMPLETE regulation on this topic, click here to read 38 CFR §3.655.

Why Do Veterans Miss VA Exams?

That’s a really good question – as important as they are, you would think that a Veteran would move heaven and earth to get to a C&P Appointment.

But, life isn’t always that “cut-and-dry”.

All too often, the Veteran is NEVER told about the C&P Exam – either because the VA has an incorrect address for the Veteran, or because they sent the notice to the wrong Veteran, or simply because they never sent out the notice in the first place.

One of the VA Contract Examiners – I won’t mention names just yet – seems to be connected to a good number of “no-show” Veteran C&P Exams.

My working theory – and frighteningly, I’m not finding evidence to disprove this theory – is that the contractor simply does not send notices of the C&P Exam to the Veteran, and instead bills the VA for a “no-show” exam rate.

Getting paid for no work is the Washington, D.C., way, as we know.

Other Veterans miss the exam because they were hospitalized, out of the country, on vacation, couldn’t get off work, couldn’t get day-care….you name it.

In these situations, it is ALWAYS best to contact the VA as soon as you know you will be unable to make the exam – you can call the 1-800-827-1000 line, but don’t stop there.

Send a fax and/or a letter (Certified Mail) to the Evidence Intake Center, indicating why you cannot make the exam and ask that it be rescheduled.

If you are represented by an attorney or a VSO, they should be able to talk to the VA to help get the exam rescheduled, although its nearly impossible to get the date of your choice for an exam.

 

Can a Veteran Reschedule a Missed VA Exam?

If you miss the exam, and have a good reason for missing it, you can always ask that the VA reschedule the exam “for good cause”.

What is good cause for missing an appointment?

Good cause is a legal term of art; different courts define it very differently, but generally, “good cause” involves an “…exercise of due diligence and ordinary prudence that a reasonable person would exercise under the circumstances.”

Examples of good cause for not reporting include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R § 3.655(a).

You should have documentation to support a failure to appear for a C&P exam.

Sworn Declarations, letters from private doctors, or any other evidence that supports your reason for missing the exam in the first place.

The VA always seems to deny the rescheduling requests (for missed VA C&P Exams) except for the most heart-rending circumstances, so if they deny your request to reschedule and it hurts your claim, be sure to appeal. This may be a good time to talk to an attorney, too.

What other protection does the Veteran have when they have missed a C&P Exam?

The one thing that a lot of folks overlook in the regulations is that the VA can only deny a claim (or decide it without an exam) in a missed VA Exam scenario, if this one condition below exists:

“…When entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination….”

That’s really interesting language – but what does it mean?

Well, if your medical condition is a condition that is capable of being observed and (in rare cases) diagnosed by a lay person – tinnitus is one that comes right to mind, scarring is another – and you have enough 5-star lay evidence in your C-File, then you might not even need a C&P Exam.

Or, if you have a recent favorable C&P Exam – or a favorable  private medical exam – in your C-File already, then you might not need an exam in the first place.

However – I do NOT encourage you to skip your VA C&P Exam just because you think you have enough evidence to meet the standard above.  When in doubt, go to the exam.  It is ALWAYS easier to attack a VA C&P Examiner’s credentials and methodology and conclusion than it is to challenge that the VA did not need a VA Exam and the Veteran was justified in missing it.

In fact – let me be totally clear – unless you are acting on the advice of your own lawyer (and, to be clear,  I am NOT your lawyer and this blog is NOT legal advice), it is always preferable to go to the VA C&P Exam and challenge it later if its unfavorable.

Here’s one more thing you’ll want to know:

The  VA must provide the Veteran with notice of the regulation that failure to appear may result in the denial of the Veteran’s claim for disability benefits, or adjudication of the Veteran’s claim for disability benefits being decided on the record without the exam….sometimes this is buried in the letter the VA sends some Veterans alerting them that they might someday schedule a C&P Exam.

Other times, I have seen it on the actual C&P Exam Scheduling Notice.

Most of the other times, I never see the VA given the Veterans this notice – failing to give it is a constitutional due process violation, as well as a failure of the Duty to Assist.

So now you know how important the VA C&P Exam is.

Now … I want you to click here and get some practical tips on how to prepare for a VA C&P Exam in the first of a series of 3 posts about the VA C&P Exam.