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Welcome back, everybody. My name is Dwayne. I got a video for that. Kimble, United States Army veteran and retired VA rating specialist. The VA has updated one of their guidances as it pertains to when not to schedule a CMP exam.
In today's video, I am going to break down this hot topic. So if you decide to get an actionable and sufficient DBQ from a private provider, you need to know what VA employees are not to do in this particular situation. Let's go ahead and get into it.
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Before I get into this hot topic, make sure you click the link in the description section and get signed up for our monthly veterans membership. But before you check out, make sure you input the code KMD50—kilo mike delta 50.
Okay, so we're going to be talking about a hot topic, and that is when a veteran goes out and gets a private DBQ in Nexus, and it's actionable and sufficient for rating purposes. What is that VA employee supposed to do per their guidance? Now we've been seeing veterans do this, and those DBQs are actionable and sufficient, meaning there's no CMP exam needed, and some—not all, but some—VA employees are still refusing to use this evidence and go ahead and rate the case.
Okay, so I'm going to give you or show you this guidance. So if you happen to fall in this category, this is how you win at that holler review. You use their own guidance that they are ignoring to your favor. So let's get it.
Slide number one. Here, in slide number one, this is the email of the update for the particular guidance we're going to be talking about today. Now all of my veteran members that are in my monthly membership, they know because I shared a video how to research the M21-1, how you sign up for the VA's newsletter to get the updates. Okay, and when I get the email, I look at it and I'm like, "Yep, whoa, whoa, whoa, wait a minute. Look what we have here." Okay, updated guidance on current disability or symptoms for the purpose of determining whether an examination or opinion is necessary. That jumped out at me because this is something that I've talked about in the past, and I'm going to be talking about throughout this year until every veteran out there understands it.
Okay, let's keep going.
Slide number two. Here's the M21-1, the first one. Now I have a lot of stuff highlighted in red here, but trust me, these 38 CFRs that you see, I will be touching on them today. Okay, Using medical evidence in lieu of examination as noted in 38 CFR what 3.326, and I'm going to be talking about part B. Okay, In this additional M21-1 manual reference medical evidence of record may—key word may—be deemed adequate for rating purposes to make a decision on a claim without requesting an examination or medical opinion. And I guarantee you, a majority of VA employees, the only thing they see in this sentence is "may." That's it. And that—request an exam. But then you know, I'm thinking, well, why have the DBQs on the website to begin with? Why? Okay, it makes no sense. You have evidence that you can use to rate the case, but you decide to make the VA pay a third-party examiner. That's waste. That is waste. And some of the employees—well, you paid for that DBQ, what—the VA paid for that DBQ for that CMP examiner to complete it. What's the difference? And then somebody may say, "Oh, it's fraud." Tell me what organization or uh, your federal agency or private organization may not have a certain level of fraud. Okay, it it it's it's there. But I tell vendors, make sure you're doing it the right way. Do it the right way. You don't have anything to worry about.
Okay, let's keep going.
Under provisions this 38 USC and additional 38 CFR, an examination or medical opinion is necessary only if the evidence of record does not contain sufficient medical evidence to make a decision on the claim. Now it's up to you, veteran. If you go out and pay somebody a few hundred bucks to look at your evidence and complete a DBQ, you need to understand what makes that DBQ sufficient. Uh, back in February, I did a training where I talked about what makes a DBQ insufficient. So for all you naysayers out there, I was trained by the VA to know what makes a DBQ sufficient because I had to use it. I had to know if I could use it to rate the veteran's claim. Simple as that.
Okay. These guidelines should be applied to claims for service connection where a nexus opinion is not needed. Okay. For example, with presumptive SE—that means service connection—and claims for increase. I bet you all didn't catch that nugget. These guidelines should be applied to claims for service connection where a nexus opinion is not needed for presumptives. You don't need a—opinion—nugget. Okay, little things like that. And this is why it's important, people, when you come to my—when you subscribe to my channel, I'm educating you. I'm giving you stuff that VA employees look at when they are adjudicating your claim to say, "Oh, yeah, I can use this to grant the benefit or I can use that." Okay. But also they use these to deny. So that's why not only do you have to know what you're doing with your claim, but how these references, guidelines, and regulations could impact it.
Let's keep going.
Slide number three. Now this is part of the M21-1 I just showed you. Okay. Now it says, if a claim is accompanied by medical—by medical evidence that is adequate for rating purposes as defined in 38 CFR 3.326—we're going to get to it, and I have—I have other videos on that as well—what does it say at the top? Then do not routinely request an examination for the issues for which the evidence of record is sufficient to make a decision. Now in 38 CFR 3.326, it has a word in there says "may." That's what a lot of the employees are hanging a hat on to say, "Nope, I want you to go to the CNP examiner because one, I don't believe your private doctor, and two, I know our doctors are going to maybe deny the claim." Okay, now I'm not saying that all VA employees think that way, but I'm pretty sure there's a few that do.
Okay. In the notes: This includes disability benefits questionnaires, DBQs completed by a private—a private provider. Okay, people, there's some people out there that say, "Oh, you have to go to that exam." That's incorrect. That's incorrect. I've actually had veterans submit DBQs, and I've rated these cases—submit a DBQ, VSSR requests the CMP exam, the vet refused it, comes—comes back to me, RFD. Oh, Dwayne, the vet refused this exam. I look at it, and I'm like, well, there's a DBQ. Why did you request the exam? Oh, that—that's just what they told us in training. Well, they told you wrong. Do I need to send this back out? No, because I looked at the DBQ and I can rate the case.
Okay, let's keep going.
Slide number four. Okay, now this is a continuation of this M21 uh-1 reference that I'm showing you. If the claim is for increased evaluation, do not routinely request an examination without first assessing the medical evidence for sufficiency. Guess who's requesting the majority of uh, these exams—VSRs—Veteran Service Representatives. They don't rate. They don't get training on what makes a DBQ sufficient. So how can they review this evidence for sufficiency? Okay, important. An examination is not automatically required for every claim for increase. I'm going to read that again. An examination is not automatically required for every claim for increase.
Let's keep going.
If the evidence of record is sufficient to determine the appropriate current evaluation, an examination is not necessary even if the resulting decision will be to confirm and continue the current evaluation. Now what would I do in this particular situation? Veterans will submit a DBQ, and they don't know if the DBQ is going to give them a higher percentage or keep them at the current percentage because they just don't know. You need to know. That's why it's important to know the diagnostic code criteria for the condition you're claiming and where to go and find that criteria in the DBQ because once your private examiner completes it, you can verify, yep, I meet the 40% criteria. A lot of veterans not doing that. They submit the claim. So in this case, what I would do if I was rating, I would schedule that CMP exam because you could go to that CMP exam. Then it could show you want a higher percentage, and I can use that over your private DBQ, which shows I should keep you at the current percentage. We're talking about increases.
Okay. The exception: If the evidence of record shows findings warranted a lower evaluation than that currently assigned, an examination generally would be necessary before any action could be taken to propose a reduced evaluation. Now I'm not going to get too much into that. I put an X because you need to watch my video on adverse action where they're talking about proposing to reduce.
Okay, let's keep going.
Slide number five. A lot of slides today. Okay, 38 CFR 3.26. That should be 3.3.26. Okay. What does it say, subpart B? Provided that it is otherwise adequate for rating purposes, any hospital report or any examination report—DBQs from any government or private institution—your private doctor may—there's that key word again—may be accepted for rating a claim without further examination. That's what would allow me to go ahead and rate that case without requesting a CMP exam and holding up the claim. A lot of VA employees are doing it, mainly VSSRs, because what—they are not trained on what makes a DBQ sufficient. Simple as that.
Okay, let's keep going.
Slide number six. This—another M21-1—Reviewing evidence before determining examination or opinion is necessary. An examination opinion is only necessary under what 38 CFR 3.159 when there is not sufficient medical evidence of record to make a decision on the claim. So again, people, it goes back to who's reviewing this. So if the person that's reviewing it is not trained on the evidence that they need to look at and verify—yep, exam is necessary, exam is not necessary based on the DBQ—how can they do their jobs? Okay, so if you know a VS—VSSR, ask them, hey, have you ever received any training at the VA on what makes a DBQ insufficient? Just ask them. Ask them. Hopefully they tell you. So here again, it talks about what 38 CFR 326, similarly pro—uh, provides that an examination is authorized when medical evidence accompanying the claim is not adequate for rating purposes. Okay, Examination report or statement from a private physician can be used to decide a claim without an examination if adequate for rating purposes. A lot of this is redundant, is saying the same thing but in a different—different way. Okay, this is why it's important, and throughout 2025, you're going to hear me say this. This is why it's important for you to understand this process. It's time to get educated. Okay, some of you may say, "Well, I'm going to go get a VSO, I'm going to go get a claims agent, I'm going to go to—I'm going to go and get a lawyer." If they don't know this information, how can they help you? If they don't know this, how can they help you? And there's some out there that do not know it. So it falls back on you, the veteran, at the end of the day.
All right, last and final slide.
Slide number seven. ACFR 3 point 3.159, subpart C, subpart 4. You saw this in some of the other slides. Okay. A medical examination or medical opinion is necessary if the information—evidence of record—does not contain sufficient competent medical evidence to decide the claim. And it goes on to say but—okay. Now you, the veteran, and I've done—I've done classes in the past, and I'm going to—let me know in the comments section if you still want me uh, to do more classes on what makes a DBQ insufficient or what makes a DBQ sufficient. I did it back in February. If you want me to do it again, let me know, and my team and I can get that scheduled. Okay, and we're thinking about doing one uh, on what makes a nexus statement insufficient/sufficient. Okay, if you find yourself in this category where you've went out, had your examiner or an examiner to complete a DBQ and next statement, and they're trying to go—they're trying to schedule for a CMP exam, come back and look at this video, look at these 38 CFRs, these M21-1 manual references—that's the—that's their guidance. And if they don't follow it, and you decide not to go to a CMP exam, and tell them, hey, use my information, go ahead and push my claim forward, and they don't do it, this is what you can use to fight on that high-level review. So you heard me say, if you decide not to go to an exam because you have an actionable sufficient DBQ, I would never tell a veteran to go or not to go if they have an actionable sufficient DBQ. That decision has to be yours. I made that decision. I knew the guidance. I knew the regulation. And now I'm—I just provided that to you so you can make the best informed decision as it pertains to your claim. So with that being said, make sure you like, subscribe, hit that notification button, and as always, share this video with your fellow veterans. Thank you.