The 5 Most Common (and Fatal) Flaws in VA C&P Exams: An Expert's Rebuttal Guide

As an attorney, you've seen it happen. You have a strong case for a veteran. The service records are clear, the diagnosis is firm, and the buddy statements are compelling. Then, the C&P exam comes back: "It is not at least as likely as not..."

A single, flawed C&P exam can feel like a case-ending event. But it's not. As a board-certified physiatrist who has completed over 11,000 disability and veterans' compensation examinations, I've seen countless winning cases get derailed by these reports. I've also seen that they are often full of objective, "fatal flaws" that can be systematically identified and rebutted. This guide will walk you through the five most common errors I see in C&P exams and, more importantly, how to defeat them with a strong, evidence-based medical rebuttal.

Flaw #1: The Examiner Ignores Subjective Complaints (The "No Objective Evidence" Fallacy)

What It Looks Like:

You'll see this in the examiner's notes. They dismiss the veteran's report of chronic pain, weakness, fatigue, or mental fog because "the x-ray was negative," "the physical exam was normal," or "there is no objective evidence."

Why It's "Fatal":

This approach is medically unsound and legally insufficient. It improperly dismisses the veteran's lay evidence. Many conditions, such as radiculopathy, migraines, fibromyalgia, or mental health disorders, are diagnosed primarily through a detailed history and subjective complaints. An exam that ignores this testimony is, by definition, inadequate.

The Expert Rebuttal Strategy:

A strong rebuttal doesn't just disagree; it invalidates the examiner's method. My expert medical opinion will:

1. Cite the medical literature that validates the veteran's subjective complaints as a primary diagnostic tool.
2. Explain the pathophysiology. For example: "Nerve pain (radiculopathy) is an objective finding, even if the MRI is clear. The examiner's reliance on a 'normal' imaging study shows a fundamental misunderstanding of neuropathic pain."
3. Reference the VA's own rules (like M-21) which require examiners to consider lay statements and the history of pain.

Flaw #2: The Examiner Fails to Provide a Rationale (The "Conclusory" Opinion)

What It Looks Like:

This is the most common and frustrating flaw. The examiner simply checks "no" on the nexus statement (DBQ) and writes a single conclusory sentence: "It is not at least as likely as not," or "The veteran's condition is not related to service."

Why It's "Fatal":

A medical opinion that provides no "because" has zero probative value. It is a naked conclusion, not a medical analysis. The BVA is required to weigh the reasoning of an opinion, not just the credentials of the person who wrote it. An unreasoned opinion has no weight to give.

The Expert Rebuttal Strategy:

Your expert report will attack this lack of rationale head-on. But more importantly, it will provide the missing link. I will:

1. State clearly that the C&P exam is conclusory and insufficient for rating purposes.
2. Provide the missing rationale. This is where the case is won. I will build the logical, step-by-step bridge from the in-service event to the current diagnosis, citing medical principles, peer-reviewed studies, and the veteran's own medical records along the way.

Flaw #3: The Examiner Misinterprets or Ignores Key Evidence

What It Looks Like:

The examiner's report clearly shows they "cherry-picked" the evidence. They'll mention a normal test from 2018 but completely ignore the abnormal test from 2020. They will fail to review, or even mention, the private treatment records, buddy statements, or the veteran's own testimony from the exam.

Why It's "Fatal":

The entire opinion is rendered invalid because it is based on an incomplete and inaccurate medical record. The examiner is offering an opinion on a "different" veteran than the one represented in the complete file.

The Expert Rebuttal Strategy:

Your expert report will:

1. Create a clear medical timeline of the actual evidence, highlighting the key records.
2. Explicitly point out the ignored records. For example: "The C&P examiner, in forming their opinion, failed to review or discuss the July 2019 MRI, the private treatment notes from Dr. Smith, or the veteran's consistent reports of pain."
3. Re-build the entire medical conclusion using the complete set of facts, showing how a different, more accurate opinion is the only possible outcome.

Flaw #4: The Examiner Applies the Wrong Medical Standard

What It Looks Like:

This is a more subtle but equally devastating error. The examiner uses outdated diagnostic criteria for PTSD or TBI. Or, for a common musculoskeletal claim, they only measure the veteran's active range of motion once but fail to measure it after repetitive use, completely ignoring the VA's rules on functional loss and flare-ups.

Why It's "Fatal":

The entire exam is invalid. It's like a police officer using a broken radar gun. The examiner is not measuring the veteran's disability according to the specific laws (CFR Title 38) that govern VA compensation.

The Expert Rebuttal Strategy:

My expert opinion will:

1. Cite the correct, current standard (e.g., "The DSM-5 requires..." or "Per 38 CFR § 4.45, the exam must...").
2. Explain precisely how the examiner failed to apply this standard.
3. Provide my own opinion based on an examination and record review that does use the correct standard.

Flaw #5: The Examiner Engages in Speculation (The "Alternative Etiology" Guess)

What It Looks Like:

The examiner, without any supporting evidence in the file, speculates that the veteran's condition is due to something else. Common examples include: "The back pain is likely due to the veteran's age," "This is a genetic condition," or "It's likely due to the veteran's weight."

Why It's "Fatal":

This is medical speculation, not an evidence-based opinion, and it directly contradicts the "at least as likely as not" benefit-of-the-doubt rule. The examiner is inventing a cause without a factual basis.

The Expert Rebuttal Strategy:

Your expert report will:

1. Identify the examiner's statement as speculation and state that it is "unsupported by the medical record."
2. Systematically refute the speculation. For example: "There is no evidence in the file to suggest a genetic cause, nor does the examiner cite any. Conversely, there is clear, documented evidence of an in-service injury."
3. Re-focus the argument on the actual, documented in-service event and the established, peer-reviewed medical link to the current condition.