“Why does the VA want me to go get a Compensation and Pension (C&P) exam?”
As a VA-accredited claims agent and Veterans Service Representative, I get this question a lot from veterans with asbestos diseases like mesothelioma and lung cancer. The short answer to this question is simple: because that is the norm.
However, that doesn’t mean it’s necessary.
What Is a Compensation & Pension Exam?
First, let’s explain what a Compensation and Pension Exam actually is and how it relates to mesothelioma VA claims. A Compensation and Pension exam is a medical examination of a veteran’s disability condition. It’s performed by a VA healthcare provider, or a VA contracted provider. The C&P exam could be done at the nearest VA hospital or one of the medical organizations contracted by the VA to conduct C&P Exams.
The U.S. Department of Veterans Affairs uses C&P exams to gather evidence for a veteran’s claimed condition before issuing a decision and assigning a rating regarding their VA claim for a service-connected disability, which includes asbestos cancers like lung cancer and mesothelioma.
This exam is essentially the VA’s way of getting a medical expert’s opinion on the disability or condition before making a ruling. It’s their version of conducting a medical fact-check.
Where C&P Exams Fit Into the VA Claims Process
With most VA Disability Compensation (VADC) claims, the VA Regional Office handling your claim needs a doctor to provide an opinion as to whether your claimed condition is most likely service-related, and if so, what disability rating you should be assigned.
This is where a Compensation & Pension Exam can help – and confirm the veteran’s belief that their condition is due to their service in the military.
As an example, let’s say a veteran blows out his knee in bootcamp. He ends up getting surgery, goes to rehab, and is finally able to finish out bootcamp. When he leaves the military, his knee isn’t an issue, so he doesn’t file a VADC claim for it.
Now it’s 40 years later and his knee has been bothering him, so he goes to his doctor. After explaining to his doctor that this is the same knee he had operated on when he was in bootcamp, his doctor concludes that the knee issues he is now suffering from started in the military. So the veteran gets to thinking that he should file a VADC claim for it based on the conversation with his doctor.
He submits his current medical records to the VA, but the VA Regional Office requests a Compensation and Pension Exam.
At the C&P exam, the veteran explains he is having problems with the same knee that he had operated on when he was in bootcamp. The C&P doctor reads his civilian medical records and military medical record, and also comes to the same conclusion: This current condition is related to the original injury to his knee while he was on active duty. As such, the C&P doctor decides to recommend approval of the veteran’s VA Disability Compensation claim.
However, the VA Regional Office has also asked the C&P doctor to fill out a Disability Benefit Questionnaire (DBQ) for knee injuries. The doctor’s answers to the questions in the DBQ provide the VA Regional Office with the information they need to determine what disability rating to assign this veteran based on the 38 CFR VA Rating Guidelines.
The veteran gets an approval letter from the VA and is assigned a disability rating in accordance with the 38 CFR. This is a good example of how most VADC claims are handled.
Mesothelioma VA Claims and Compensation & Pension Exams
“But I have mesothelioma cancer,” you say. “I told the VA how I was exposed to asbestos in the military and what I did in all my civilian jobs. Isn’t that sufficient to get me approved?”
This is a regular question I and other VA claims agents get from people. The answer is yes.
“And doesn’t the mesothelioma section of the 38 CFR state that the VA can only assign me a 100% rating?” people ask me.
Again, the answer is yes, with one caveat which I will address shortly. But as long as you have cancer, you can only be assigned a 100% rating for your VA compensation claim.
So why does the VA schedule C&P exams for cancer cases, even if the veteran has supplied all his civilian medical records for that cancer, and provided a detailed letter explaining their exposure history?
I can’t know for sure, and it may not always be the same reason, but my best guess is that they aren’t familiar enough with the Asbestos Section of the VA Manual to know these things.
In fact, they may not have ever worked on a mesothelioma claim before, so their knee-jerk reaction is to simply do what they usually do: request a C&P exam and wait to hear what the C&P doctor has to say about the likelihood that the cancer is service-related and what rating should be assigned.
However, my experience has been that whenever a veteran with mesothelioma is asked to attend a C&P exam, the C&P doctor seems to be about as confused as to what the VA Regional Office wants from him/her as the veteran is about why he is being asked to have that exam at all.
Now, if a veteran filed a mesothelioma VA claim and didn’t provide a detailed asbestos exposure letter with their claim, then the purpose of the C&P Exam might be to provide the VA with an opportunity to have that doctor ask the veteran about his exposure history. That might be a useful purpose in scheduling a C&P Exam in this case.
Using C&P Exam to Determine Disability Rating Below 100%
There is another possibility, and it has to do with the caveat to the Rating Guidelines that I mentioned earlier. In the 38 CFR, immediately after stating that mesothelioma is to be rated at 100%, the following note is provided to the VA.
It reads, “Note: A rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. If there has been no local recurrence or metastasis, rate on residuals.”
So what does this mean?
Basically, what this note means is you can’t be assigned, or continue to receive, a 100% rating for cancer you no longer have – at least, a cancer which is not currently detectable, and you haven’t received any treatment for it in over six months.
Therefore, I have seen this used as the justification for scheduling a C&P exam for a mesothelioma patient in the past. The VA wants to ensure that the veteran still actually has mesothelioma.
This scenario usually happens when a VA Regional Office has a large backlog of claims. The claim is submitted but nothing happens for many months, as the VA works through their backlog of claims. Eventually they get to the veteran’s mesothelioma claim, but now they don’t have recent medical records, only those received when the claim was filed. Since months have passed, they might wonder if the veteran still has mesothelioma.
As an example, let’s say a claim was submitted a year ago. This is an extreme example, but it has happened. The medical records submitted with the veteran’s claim are now a year old. So there exists a possibility that the veteran has had surgery to remove the cancer and may now be “cancer-free,” or at least, there are no signs of cancer in the veteran’s CT scans.
In a case like this, the VA Regional Office may think there is a possibility that the veteran is currently cancer-free, and hasn’t had any treatment in over six months, and therefore, he should only be assigned a 100% rating up until that six-month point.
After that, his rating should be based, not on the mesothelioma rating, but instead on residuals. Residuals are any other disabilities that the veteran suffers from as a result of either the cancer itself or the treatment. The appropriate rating for the residuals may be lower than 100%, so the VA needs to know if the veteran is no longer eligible for a 100% rating, and if not, what rating should be assigned. This would be another legitimate use of a C&P exam for a veteran with mesothelioma or lung cancer.
Conclusion About C&P Exams for Veterans With Asbestos Cancers
But in most cases, scheduling a C&P exam for a veteran claiming service-connection for mesothelioma or lung cancer serves no useful purpose, as long as the veteran has supplied his civilian medical records and a detailed exposure summary letter with his claim.
What should you do if you have done all that and still get scheduled for a C&P exam?
Well, I advise veterans that if they are well enough to attend that exam, just go. It’s better to go along than to rock the boat and risk the VA denying your claim because you refused to go to your C&P exam.
However, in some cases, the veteran is too ill to go to the exam. In cases like this, I usually have the veteran’s family explain to the C&P doctor that the veteran is unable to attend because they are too sick to do so, and ask if they can do a remote video conference or a phone call.
In rare circumstances, I have interceded on the veteran’s behalf and tried to get the VA Regional Office to cancel the exam in lieu of a “records review” where a C&P doctor is asked to simply review the claim documents and medical records and provide an opinion without an official exam.
I’m usually wary of doing this as I don’t believe it is in the veteran’s best interest to mess with the VA Regional Office’s normal process. However, the best way to potentially avoid a C&P exam for mesothelioma or asbestos lung cancer is to provide the VA with all the civilian medical records regarding your cancer when you submit your claim. You should also provide them with a detailed explanation of how you were exposed to asbestos in the military, with a contrasting paragraph or two explaining what civilian jobs you had, and why you believe any exposure in those jobs was less significant than your military exposure.
If you have done all that and the VA Regional Office still schedules a C&P exam, just go. It will probably be short and sweet, and it’s not worth the hassle to fight it. In fact, it might expedite the process of you getting your VA Disability Compensation claim approved, and monthly benefits sent to you and your family.
Sources & Author