The C&P Examiner Said No: What a Rebuttal Nexus Opinion Has to Do

Why "I disagree" is not a rebuttal

The rule that governs the examiner's opinion governs mine too. The Court of Appeals for Veterans Claims treats whether the expert is qualified and informed as threshold considerations; "most of the probative value of a medical opinion comes from its reasoning" (Nieves-Rodriguez v. Peake, 2008). An opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions," and "a mere conclusion by a medical doctor is insufficient" (Stefl v. Nicholson, 2007).

A second opinion that says "at least as likely as not" and stops gives the rater nothing to weigh. The examiner wrote a rationale. The rebuttal has to meet it.

Step one: read what the examiner actually said

The decision letter summarizes the exam. The summary is not the opinion. The opinion is the DBQ and the medical opinion form, usually one to three paragraphs under a heading like Rationale. That is what I rebut, and I need all of it. The C&P exam post explains what the examiner fills out.

Adverse rationales take one of three shapes: the condition is explained by other risk factors, there is no evidence of it in service, or a factual history that does not match the record. Each gets a different answer. Stefl's list of what a sound opinion covers includes "why the examiner finds cited studies persuasive or unpersuasive, whether the veteran has other risk factors for developing the claimed condition, and whether the claimed condition has manifested itself in an unusual manner." If the examiner hit those points, I have to hit them better. If the examiner skipped them, I say so and fill them in. An opinion is read as a whole, though, so the rebuttal has to show the report lacks reasoning, not just a heading.

Step two: concede what the examiner got right

The risk-factor argument is usually true as far as it goes, and a rebuttal that pretends otherwise loses the first reader who knows the subject.

Sleep apnea is the clearest example. The authoritative epidemiology review says the condition tracks with overweight and obesity, and that weight loss is the only intervention "supported with adequate evidence" (Young, Peppard, and Gottlieb, 2002). Moderate to severe sleep-disordered breathing affects 10 percent of employed men aged 30 to 49 and 17 percent aged 50 to 70, and the authors call obesity "a strong causal factor" (Peppard and colleagues, 2013). Reflux: 18 to 28 percent of North Americans have GERD (El-Serag and colleagues, 2014), with higher odds after 50 and with smoking, NSAID use, and obesity (Eusebi and colleagues, 2018). The low back: disc degeneration shows on imaging in 37 percent of asymptomatic 20-year-olds and 96 percent of asymptomatic 80-year-olds (Brinjikji and colleagues, 2015), with heritability of 29 to 54 percent in a twin study (Battié and colleagues, 2008).

I cite those papers myself, before the examiner does. Then I show that a risk factor does not close the question. Three ways.

• Timing. Population risk factors say who gets a disease, not when yours began. A normal weight at separation, symptoms documented before the weight went up, or a diagnosis well below the age curve is a fact about you, not the population.
• The source of the risk factor. If the obesity came from a service-connected condition or its treatment, the examiner's argument becomes yours. VA's General Counsel has held that obesity can be an "intermediate step" between a service-connected disability and a second condition, with three questions for the adjudicator: did the service-connected condition cause the weight gain, was the weight gain a substantial factor in the claimed condition, and would the claimed condition have occurred without it (VAOPGCPREC 1-2017). For sleep apnea there is a number: a 10 percent weight gain predicted a 32 percent rise in the apnea-hypopnea index and a six-fold increase in the odds of moderate to severe disease (Peppard and colleagues, 2000). The sleep apnea secondary to PTSD post walks through that chain.
• A limit in the examiner's own source. The reflux meta-analysis calls its risk-factor associations "modest." On the back, the same group that published the asymptomatic imaging curve found that in adults 50 and under, disc bulge, protrusion, extrusion, and degeneration are all significantly more common with back pain than without (Brinjikji and colleagues, 2015, second paper). Imaging plus symptoms is not imaging alone.

Where the risk factor predates service and the service-connected condition, the honest answer is that causation is weak and the opinion turns to aggravation under 38 CFR 3.310(b), the increase above a baseline. The regulation requires medical evidence of that baseline. A rebuttal cannot invent one.

Step three: check the examiner's facts

This is where adverse opinions most often fail, and the one place a rebuttal can do more than argue. The Court's rule is one sentence: "An opinion based upon an inaccurate factual premise has no probative value" (Reonal v. Brown, 1993).

The errors are ordinary. "No in-service complaints," and the service treatment records show two sick-call visits for the same symptom. An onset dated after service when an earlier record exists. A record declared missing when it is not. A rebuttal that names the exact statement, the exact record, and the page that contradicts it gives the rater something to verify in a minute. That is worth more than any adjective.

Two limits. Reonal is about a history the record contradicts; the Board "may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran" (Kowalski v. Nicholson, 2005), so my letter says which facts come from the record and which from your account. And the rule cuts both ways. One wrong date in my letter does the same damage to it.

Step four: reason from your records and the literature, limits included

An older decision lists what gives a medical opinion weight: the expert's personal examination of the patient, "the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches" (Guerrieri v. Brown, 1993). It also refused to give treating physicians automatic extra weight. A records-based opinion should say so openly, say what was reviewed, and let the analysis carry it. Claims-file review "is not a requirement for private medical opinions," and the Board may not prefer the VA opinion solely because the examiner reviewed the file (Nieves-Rodriguez); what matters is whether the physician was informed. The analysis is your timeline with dates and sources, the mechanism with the papers for and against it, and the limits. If the best study is small, I say so. If the evidence is association, not direction, I say so. One overstatement makes the rest of a letter easier to discount.

Step five: state the opinion on the VA standard

The regulation, 38 CFR 3.102, resolves a reasonable doubt in the claimant's favor and defines it as one that "exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim," a doubt "within the range of probability as distinguished from pure speculation or remote possibility." The Court's version: "the preponderance of the evidence must be against the claim for benefits to be denied," and in relative equipoise the veteran prevails (Gilbert v. Derwinski, 1990).

So the question is not "is the examiner wrong." It is "with this opinion in the file, is the evidence at least in approximate balance." That is a lower bar than certainty, and the letter should say why your evidence clears it. The benefit of the doubt post covers the rule in detail.

One caveat from the regulation itself: the rule "is not a means of reconciling actual conflict or a contradiction in the evidence." The rater weighs two opinions, not splits the difference. That is why steps one through four come first.

Where the rebuttal goes

Where the opinion goes after a denial (supplemental claim, Higher-Level Review, or the Board) is a legal choice. Your accredited representative or attorney makes it. I write the medical opinion. The appeal post describes the options.

What I need from you

• The C&P exam report itself, the full DBQ and medical opinion form, not the decision letter's summary. Without the rationale there is nothing to rebut.
• The rating decision, so I can see which element VA found missing.
• Your service treatment records, especially any entry the examiner said does not exist.
• Post-service records: the first visit for the condition, the diagnosis, anything that dates the onset.
• Whatever the examiner missed. If the opinion says a record does not exist and you know it does, that record is the center of the rebuttal.

If you have your C-file, send the whole thing. If not, the $395 records analysis will tell you what is missing before you spend anything on a letter.

Who should write it

A qualified clinician who will review the adverse opinion and the whole record, and who will tell you if the examiner is right. Here that is a physician. A rebuttal is more work than a first opinion: a second document to answer, a factual premise to check against every page, a counterargument to concede and then meet. That is why it is my $1,495 tier.

It is also why I do the records analysis first. Some adverse opinions are correct. If the examiner's facts hold and the risk-factor argument is the better reading of your record, the analysis says so in writing, before you pay for a letter that would not help. I do not write a rebuttal I do not believe. The second opinion after denial post explains that review.

One boundary. When the adverse opinion is about a psychiatric diagnosis itself, whether you have PTSD or whether it began in service, a psychiatrist should answer it. I refer those veterans to a board-certified psychiatrist, and say so on the screening call.

Getting a rebuttal opinion after an adverse C&P exam

Who writes it here. I am a board-certified emergency physician and a disabled veteran, and I write these opinions myself, from your records, with the cases and studies above cited by name. Physiologic question, I take the case. Psychiatric, I refer.

What it costs. The screening call is free, 15 minutes with me. A rebuttal of an adverse C&P opinion is $1,495 with the full records review included, or $395 for a records analysis first and $1,100 for the letter after it. Each additional condition on the same records is $500. No contingency, no percentage of back pay, and the price is confirmed in writing on the call before you pay anything.

How to start. Request the free screening call. You tell me what the examiner said and what the decision found missing, and I tell you honestly whether a rebuttal is likely to help. Records come later, through a secure link, never by email. No outcome is guaranteed. If the records do not support the claim, I will tell you that instead of writing the letter.

Studies referred to in this post

Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).
Stefl v. Nicholson, 21 Vet. App. 120 (2007).
Reonal v. Brown, 5 Vet. App. 458 (1993).
Kowalski v. Nicholson, 19 Vet. App. 171 (2005).
Guerrieri v. Brown, 4 Vet. App. 467 (1993).
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
38 C.F.R. § 3.102 (Reasonable doubt); 38 C.F.R. § 3.310 (Secondary service connection).
VAOPGCPREC 1-2017, Service Connection Based on Obesity (VA Office of General Counsel, January 6, 2017).
Young T, Peppard PE, Gottlieb DJ. Epidemiology of obstructive sleep apnea: a population health perspective. Am J Respir Crit Care Med. 2002;165(9):1217-1239. PMID 11991871.
Peppard PE, et al. Increased prevalence of sleep-disordered breathing in adults. Am J Epidemiol. 2013;177(9):1006-1014. PMID 23589584.
Peppard PE, et al. Longitudinal study of moderate weight change and sleep-disordered breathing. JAMA. 2000;284(23):3015-3021. PMID 11122588.
El-Serag HB, Sweet S, Winchester CC, Dent J. Update on the epidemiology of gastro-oesophageal reflux disease: a systematic review. Gut. 2014;63(6):871-80. PMID 23853213.
Eusebi LH, et al. Global prevalence of, and risk factors for, gastro-oesophageal reflux symptoms: a meta-analysis. Gut. 2018;67(3):430-440. PMID 28232473.
Brinjikji W, Luetmer PH, Comstock B, et al. Systematic literature review of imaging features of spinal degeneration in asymptomatic populations. AJNR Am J Neuroradiol. 2015;36(4):811-816. PMID 25430861.
Brinjikji W, Diehn FE, Jarvik JG, et al. MRI findings of disc degeneration are more prevalent in adults with low back pain than in asymptomatic controls: a systematic review and meta-analysis. AJNR Am J Neuroradiol. 2015;36(12):2394-2399. PMID 26359154.
Battié MC, Videman T, Levälahti E, Gill K, Kaprio J. Genetic and environmental effects on disc degeneration by phenotype and spinal level: a multivariate twin study. Spine (Phila Pa 1976). 2008;33(25):2801-2808. PMID 19050586.

This post is general information about VA claims, not medical advice about your condition or legal advice about your claim. Every opinion I write rests on the veteran's own records.

Related. Sleep apnea secondary to PTSD, A nexus letter for a survivor's DIC claim, Who can write a nexus letter?.