Written by William & Mary Law Student Sarah Blackadar

Whether you are a veteran applying for benefits, or an advocate helping veterans through the process, you are probably familiar with compensation & pension exams (C&P exams).[1] The VA can use C&P exams to gather additional evidence needed to evaluate a veteran’s claim for disability benefits.[2] However, as many veterans and advocates have noticed, the exams are often ordered even where there is copious amounts of other acceptable medical evidence[3] submitted by the veteran. However, once an examination is scheduled, the veteran must attend or jeopardize the right to benefits, unless the veteran has ‘good cause’ for failing to attend. .[4]  This blog includes some helpful suggestions about how to handle the scheduling of C&Ps and options available to a veteran when unable to attend a scheduled C&P exam and their claim is denied.

First, it is recommended to try to reschedule the exam to a specific date as soon as you receive notice of a C&P exam you cannot attend. Sometimes, when an exam is cancelled by the veteran, the veteran is asked to call back at a later time to reschedule an exam. This often leads to the problem of the Regional Office treating the original date of the C&P exam as a missed exam, even though it was not missed.

When a veteran fails to attend an exam, regulations require a showing of good cause as to why the veteran was unable to attend the scheduled exam. Under the regulations “examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.”[5] The Board of Veterans Appeals, and the Court of Appeals for Veterans Claims have done little to clarify what meets the standard of “good cause” but have put the onus on the veteran to communicate their inability to show for an appointment to the VA.[6] However, even when veterans do everything in their control not to miss their C&P exam, or attempt to show “good cause” for why they cannot attend, their claims may still be denied and often with the justification that the veteran missed the exam.

When a veteran has a claim denied because they did not show for C&P exam there are a regulations that veterans should be aware of in order to preserve their rights to disability benefits.

If the claim is an original claim (the first time the veteran files for benefits) then the failure of the veteran to show to a C&P examination cannot be the sole reason for the denial a claim. Instead for an original claim, the rating must be based on the medical evidence in the veteran’s file.[7] If the veteran has submitted other competent medical evidence[8] the Regional Office must evaluate this evidence and cannot prejudice the veteran because they did not attend a C&P examination.

Additionally, even if the veteran is reopening a claim, or applying for a rating increase–which the VA can deny because of a missed C&P[9]–the veteran is not without redress. Veterans who took the appropriate steps to notify the VA of their unavailable status often have confirmation from the scheduler that their appointment was cancelled and would be rescheduled later. Sometimes, within only a few weeks of the veteran’s original C&P examination date these same veterans receive decision letters denying their claim.

In cases such as these, an important step the veteran should take is to file their notice of disagreement (NOD) with the decision. This keeps the veteran’s claim alive and preserves their effective date.[10] The veteran can then raise the issue of the C&P exam and the veteran’s “good cause” for not attending the C&P exam in the NOD. In addition, the veteran should provide documentation to support both their “good cause” for not attending and to show communication of that information to the scheduler or the VA. Do not assume that the Regional Office will spot the error without the veteran specifically pointing it out. It is possible that the Regional Office may find it necessary to order another C&P.

At any time during the Regional Office process a veteran can request a hearing.[11] At the hearing a veteran can make arguments as to why their claim should not have been denied. The hearing is an opportunity, in front of the office that must make the request for another C&P exam, for the veteran to request an exam be ordered, in light of the veterans “good cause” to miss the first one.

[1] For more on what happens when you attend a C&P exam, Swords to Plowshares has this excellent recourse; https://www.swords-to-plowshares.org/guides/cp.

[2] 38 CFR §3.326(a) (2016).

[3] 38 CFR §3.326(b) (2016).

[4] 38 CFR §3.655(a) (2016).

[5] 38 CFR §3.655(a) (2016).

[6] 2004 BVA LEXIS 46509, BVA 04-09106 (2004).

[7] 38 CFR §3.655(b) (2016).

[8] Private medical records, VA Hospital records, and DBQs completed by a medical professional may all support a claim for VA benefits per 38 CFR §3.326(b) (2016).

[9] 38 CFR §3.655(a) (2016).

[10] 38 CFR §3.103(f) (2016).

[11] 38 CFR §3.103(c) (2016).