BULLETIN APRIL 2015
Challenging unfavorable C&P psych reports based on observations made during the examination??
We have all seen, from time to time, a big disconnect between what a VA C&P examination report says about a claimant's psychiatric symptoms and what is written in treatment records and in the claimant's statements.
Take, for instance, a claimant who has been seeing a treating psychiatrist for years,with reports of severe and recurring nightmares, flashbacks, intrusive thoughts and low GAF scores. On the day of his C & P examination, however, the claimant dresses neatly, appears calm and plays down the severity of his symptoms. In short, the claimant puts ona happy face for his examination. The VA examiner will write what he observes, and,accordingly, his report will not reflect much disability.
This is where a VSO, as the claimant's representative, can provide helpful advocacy.
The VSO needs to persuade the rating specialist or the Decision Review Officer that,in this case, the one-time, examination does not accurately represent the claimant's true disability picture. In other words, the fluctuating nature of the claimant's psychiatric illness must be measured over time, (by the treatment records and by the claimant's reported history), not just at the moment of the examination.
The VA Regulation 38 C.F.R. § 4.126(a) states:
When evaluating a mental disorder, the rating agency shall consider the frequency,severity,and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.
You can also point to:
Davis v. Principi, 276 F.3d 1341, 1345 (Fed.Cir.2002) which states that because"psychiatric disorders abate and recur," the VA is obligated to evaluate them "not by reference to isolated periods of activity or remission, but by assessing the effects of the disease or injury over the history of the condition." Also, Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011) states that "a person who suffers from a mental illness will have better days and worse days, so a snapshot of any single moment says little about her overall condition".