As a VA attorney, you're in the business of arguments. But what happens when you're stuck in the mud of a "he said/she said" battle? Your medical expert says "Yes, it's connected." The VA's C&P examiner says "No, it's not." The BVA is often left to weigh two competing opinions. The C&P examiner, rightly or wrongly, has a built-in "presumption of competence" as a VA-selected contractor.
To win, you can't just disagree with the C&P examiner; you must disprove them. You must prove their opinion is not just different, but fundamentally unreliable, unscientific, and unsubstantiated. This is where you move from opinion to fact. This is the checkmate move. As my homepage states, my philosophy is Evidence-Based. Here is how we use that philosophy to systematically dismantle a flawed medical opinion.
Why Peer-Reviewed Literature is the Ultimate Weapon
A medical opinion backed by peer-reviewed literature is no longer just an "opinion." It becomes a summary of the established medical consensus. When I write a rebuttal, I don't just say, "The C&P examiner is wrong." I say, "The C&P examiner's opinion is contradicted by a 2023 meta-analysis in The New England Journal of Medicine, which studied 50,000 patients and confirmed a strong causal link. Therefore, the examiner's opinion is not based on current medical science and holds no probative value."
This move does two things:
- It invalidates the C&P examiner's conclusion.
- It provides the BVA with a powerful, objective, and citable reason to grant the claim.
Identifying the Target: Three Flaws Vulnerable to Impeachment
You can't just "throw studies" at a file. The attack must be surgical. I look for these three specific, fatal flaws in a C&P report.
1. The Speculative Opinion (The "Alternative Guess")
What it looks like: "The veteran's back pain is likely due to age." "The TBI is not the cause; this is probably a genetic condition."
How Literature Impeaches It: This is medical speculation, not an evidence-based opinion. I use literature to prove the actual, established risk factors. I can cite studies that show the veteran's in-service injury (like parachute jumps) is a far stronger etiological factor for his condition than age alone.
2. The Outdated Medical Standard
What it looks like: The examiner uses 15-year-old diagnostic criteria for TBI, or ignores the concept of functional loss during flare-ups for a musculoskeletal exam.
How Literature Impeaches It: This is the easiest target. My rebuttal will simply cite the current medical standards (e.g., the DSM-5 criteria for PTSD, or the consensus guidelines for TBI diagnosis). By proving the examiner used the wrong tools, we prove their entire conclusion is invalid.
3. The "Medically Impossible" Rationale
What it looks like: "It is medically impossible for a TBI to cause chronic migraines." "The records show no 'loss of consciousness,' so the veteran's cognitive issues cannot be from the blast."
How Literature Impeaches It: These bold, absolute statements are almost always wrong. A single, high-quality study that shows a "significant correlation" or "established pathophysiological link" between the two (e.g., TBI and migraines) completely destroys the examiner's entire premise.
A Systematic Process for Building the "Checkmate" Rebuttal
When I partner with a law firm, I follow a systematic, repeatable process.
- Isolate the Flawed Statement: We pinpoint the exact, conclusory sentence in the C&P exam that is denying the claim.
- Form a Medical Question: We turn that statement into a clinical question (e.g., "What is the established medical link between TBI and pituitary dysfunction?").
- Find the "Killer" Literature: I use medical databases (like PubMed and Google Scholar) to find high-impact, recent, and relevant meta-analyses or cohort studies that answer this question.
- Integrate and Cite: This is the key. A strong rebuttal won't just attach the PDF of the study; it will weave the study's findings directly into the medical rationale. The study becomes the "because" that was missing from the C&P exam.
How This Looks in a Final Report
This process transforms the entire nature of the argument.
Weak Rebuttal: "In my opinion as a PM&R physician, I disagree with the C&P examiner's conclusion."
"Checkmate" Rebuttal: "The C&P examiner opines that the veteran's condition is due to age. This opinion is speculative and, more importantly, contradicted by the medical consensus. A 2023 meta-analysis in The Spine Journal clearly states... Furthermore, the examiner's rationale ignores the veteran's documented in-service trauma... Therefore, the examiner's opinion is not based on accepted medical principles and is without probative value."
The fight is no longer about dueling opinions. It's about your evidence-based argument versus their unsupported speculation. That is a fight you will win every time.
Conclusion
If you have a file with a flawed C&P exam, don't just get another opinion. Let's build an impeachment. Contact my office for an expert case review today.