How to Win a VA Claim After an Unfavorable DBQ Exam

                What to do when you are saddled with an unfavorable VA examination? In most cases, under its duty-to-assist, the VA will have a veteran see a VA or outside physician to evaluate the claimed disability. Following the examination, the examiner will fill out a template called a VA Disability Benefits Questionnaires (“DBQs”). DBQs generally carry a lot of weight in deciding disability claims, and when a veteran receives an unfavorable DBQ, it often means the death of the claim. Or does it?

                The Veterans Law Group (VLG) says NO! If you receive a negative DBQ, you must do all you can to discredit it. This blog tells you how. By successfully challenging the adequacy or competency of a VA examination, you force the VA adjudicator to schedule a new one, and/or, increase the weight of your own private examination.

1)           DBQs Are Only One-Time Evaluations

 

       It is important to remember the DBQ examinations are only one-time evaluations. Most disabilities have symptoms which fluctuate in frequency and in severity, so-called good days/weeks and bad days/weeks. The veteran may be having a good day at the time of the VA examination, and thus the DBQ will reflect minimal symptoms. But viewed over time, a veteran’s overall disability level maybe much worse. In other words, the DBQ’s one-time, snapshot view of the veteran’s disability may not reflect its true disability level. Mental disabilities in particular are known to have fluctuating symptoms.  Davis v. Principi, 276 F.3d 1341, 1345 (Fed.Cir.2002) (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.”).

            For this reason, the entire history of the veteran’s psychiatric disorder, including the treatment records and the veteran’s lay history — not just the DBQ — must be carefully reviewed:

 

                         Evaluation of a disability in light of its history is particularly important in the context of psychiatric disorders. Because “psychiatric disorders abate and recur,” [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.” Thus, VA regulations specifically provide that a rating for a psychiatric disorder must be “based on all evidence of record that bears on occupational and social impairment rather than solely on the examiners’ assessment of the level of disability at the moment of the examination.

 

Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009).

 

            If the treatment records or the veteran’s statements/testimony show greater disability than the DBQ, the veteran should argue that the VA examination took place during a “good day” and does not reflect his/her overall disability level.

 

2)        Superficial & Incomplete DBQs

 

            The Veterans Law Group (VLG) has seen countless poorly prepared DBQs. Clients repeatedly say that VA examiners only take five (5) or ten (10) minutes for the entire examination, asking in rapid succession a checklist of questions outlined in the DBQ, and not paying much attention to the responses. Poor communication is one of the biggest probgbghghhlems of VA examinations.   Physicians need to show patience with veterans (many are of advanced age) and to explain the meaning of medical terminology in plain language. VA examiners come off cold and intimidating if they merely ask questions verbatim from the DBQ without making eye contact or offering explanations. A veteran will simply not give the best responses under these conditions, and the examiner will overlook many symptoms of the disability. Often, a VA examiner will get the veteran’s history wrong due to inattentiveness. This is especially true with VA mental health examinations. A VA examination based upon an inaccurate history is per se defective and cannot be considered by the VA adjudicator. Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has no probative value);

            Instead, the VLG’s private psychologists make it a point to spend time with clients to ensure a complete and accurate examination. Here is how one of our psychologists approaches her examinations:

I spent a considerable amount of time reassuring (the veteran) of the confidentiality of the examination and of the importance of full disclosure of his symptoms and military service. I have examined numerous veterans and found many, especially Marines, to be very reluctant to discuss their mental illnesses. For that reason, I make it a practice to ask many questions, gently and earnestly, to get a complete history. Often, the first answer to my question will not be complete or even accurate, and therefore follow-up questions are imperative. For example, I asked several questions of (the veteran) concerning possible suicidal ideation. He gave an initial negative answer, but his answer changed after I explained the difference between an ideation and a plan or attempt. I further clarified that fleeting thoughts, (such as, thinking that one day it would be nice to never wake up from a sleep), constituted passive suicidal ideation.

 

       If you think the VA examination was too short and cursory and the examiner too inattentive, then submit a statement to the VA, specifying the amount of time spent on the examination. If you did not understand the medical terminology or the questions in general, then so indicate in your statement.

      

3)        Competency Objections

 

            For certain disabilities, such as heart conditions, cancer-related illnesses, respiratory disabilities, only specialists are qualified/competent to provide opinions. Unfortunately, all VA examiners enjoy a presumption of competency, including physician assistants and nurses, no matter their actual qualifications or work experience.

 

            However, a veteran can overcome this presumption by taking the necessary steps. First, review the DBQ to see if the examiner indicates his/her specialty. If not, (and usually it does not), then submit a statement to the VA, requesting the VA examiner’s curriculum vitae (CV) or other information document, setting forth his/her qualifications. In this statement, also indicate that you intend to challenge the competency of the examiner and that the requested CV is needed to develop this competency challenge.   In most cases, the VA will ignore your request at the regional office level and even at the Board of Veterans’ Appeal. However, you have laid the necessary groundwork to appeal any negative Board decision to the Court of Appeals for Veterans Claims.

 

4)        Inadequate Analysis

 

                A VA examination can be inadequate for a variety of reasons.   If inadequate, the VA adjudicator must return the VA examination to the examiner for correction or for a new examination. 38 C.F.R. § 4.2 (if an examination report does not contain sufficient detail, “it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”). 

 

                Many prepared DBQs merely offer a handful of conclusions, with little or no explanation or rationale. An examiner who simply checks off boxes in the DBQ does not provide a probative or adequate opinion. Crane v. Shalala, 76 F.3d 251, 253 (9^th Cir.) (“The ALJ, however, permissibly rejected them because they were check-off reports that did not contain any explanation of the bases of their conclusions.  Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983) (expressing preference for individualized medical opinions over check-off reports).”) There must be some explanation as to why the examiner come to his/her conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two”).

 

                A VA examiner must also consider the veteran’s statements in reaching his/her opinion. If not, the opinion is inadequate and cannot be considered by the VA adjudicator. McKinney v. McDonald, 28 Vet. App. 15, 30 (2016) (“the VA examiner’s failure to consider Mr. McKinney’s testimony when formulating her opinion renders that opinion inadequate.”).

                A VA examiner’s use of equivocating qualifiers such as “appears” and “it is possible” leaves his/her opinion too uncertain and speculative. Therefore, his/her opinion cannot be used in the VA adjudicator’s determination.   Hood v. Shinseki, 23 Vet.App. 295, 298-99 (2005).

5 )          Incorrect Effective Date Determinations

                For increased rating claims or for original claims seeking an increased rating, DBQs are per se inadequate for assigning proper effective dates for disability awards.

                Let’s look at a typical DBQ and a typical fact pattern. (Attached to this summary is a VA Headaches DBQ). Like most DBQs, this one asks the examiner to provide details about the severity and frequency of the service-connected disability and this information is then translated into a disability level. But remarkably, the DBQ leaves out any inquiry into the onset date of the veteran’s disability level. In other words, the entire period from the date of the claim to the time of the examination is not addressed. This defect in all DBQs frequently shortchanges veterans from receiving what should be earlier effective dates for their disability awards.

                A simple hypothetical can illustrate the problem. Let’s say a veteran files a claim in September 2022 for an increased rating for migraines, then rated at thirty (30) percent disabling. In February 2023, the veteran is seen by a VA examiner, who finds that the veteran’s symptoms equate to a fifty (50) disability level. In most cases, the VA adjudicator will assign an effective date of February 2023 for the fifty (50) percent disability award, reasoning that the February 2023 examination was the first evidence of the increased rating.   That is wrong. Under its duty-to-assist, the VA must ensure that the examiner provides adequate information on all the elements/issues of a claim, including effective date issues. To do this, the examiner must provide an opinion as to whether the fifty (50) percent disability level goes as back as the date of claim, September 2022, or sometime earlier than February 2023, the date of the examination.

Realistically, the scheduling of a VA examination will rarely coincide with the onset date of a veteran’s increased disability level. Absent a highly unusual coincidence, a veteran’s increased disability will predate the examination, and, for this reason, the opinion should address its approximate onset date. See Young v. McDonald, 766 F.3d 1348, 1352 (Fed. Cir. 2014) (“We note that the Secretary does not suggest that the effective date of a PTSD claim is necessarily the date the diagnosis is made or submitted to the VA. The Secretary admits that a medical opinion could diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms.”).