A Retired VA Rater's Casual Discussion — Why More VA Disability Exams Does NOT Mean More Grants.

Añadido: 2026-05-09

[00:00:00]Hello and welcome to Raider HQ Afterdark. I'm your host, Raider. And in this video, this is me. I'm sick. I'm making a video still, even though I don't feel the best in the world, but I'm making a video. And today's video is kind of about more examinations do not mean more grants.

[00:00:22]Now, this is kind of a back to the basics fundamentals thing in that primarily what do more exams mean in your claim process journey?

[00:00:35]If you filed a claim and let's say you claim something, you know, like migraine secondary to PTSD, you go from step three to step five, you have your examination, it goes to the raider and then it gets deferred back to step three. I think I think those are the steps. I I'm not familiar with the steps to be honest with you. That's a veteran facing thing and has nothing to truly do with how the internal process works, but I digress.

[00:01:05]So in that event, what typically happens is there was either a problem with the examination in a good way or a problem with the examination in a bad way or the examiner denied you for that theory for service connection. But the raider not wanting to catch a quality error defers the claim back because there were some other theories for service connection that could have been applied that weren't. Uh most of the time this is going to be a Terara review and for for conditions that qualify under TRA. Now, where a lot of you veterans see this is you file a higher level review because you were denied for like migrants secondary to PTSD and then you notice that the DRO the decision review officer does ah uh duty to assist error was not done and you're like yes and then you go back for an examination and typically it's an ACE examination and why they're doing that is because the drow noticed that not all the theories for service connection that could apply were applied. Now, what's the inherent problem with this?

[00:02:20]Well, if you filed your claim based upon evidence that you submitted for a specific theory for service connection and they denied it, the VA does not give you a new duty to assist period to gather evidence to support the other way that they're trying to get you an exam for. So the other theory that that is pending that is not you know that was missed. So you might have submitted a whole bunch of evidence for your secondary theory for service connection and what you didn't submit was evidence showing that your condition could have been caused by toxic exposures.

[00:02:57]So on its face, when the VA does this, when the VA gives you more exams, they're not necessarily organizing your evidence to successfully win that new examination that you are going for.

[00:03:14]And that's something that you should consider when you're submitting your evidence or whenever you do a higher level review. you should you should consider that and try to submit new evidence after the um DRO has made their decision and they get you that duty to assist examination.

[00:03:36]Now, the big long video that I had originally made that I keep scrapping because it's very wordy. It's very over the top and it's very easy to misunderstand has to do with the changes that were made under Spicer v. McDword person that court case and how the VA implemented the change for aggravation of a non-service connected disability.

[00:04:04]Now, the reason why that comes into this conversation is because like many people have stated, there's going to be a crap ton more of exams that are happening to review for aggravation of a non-service connected condition by a service connected condition. There's going to be a lot of those exams.

[00:04:28]But the problem is that just because you get an exam for that doesn't necessarily mean that that exam is going to organize your evidence in a way that shows that the condition was aggravated by. Now, there's another thing to consider here, okay? When it comes to those changes that happened on 51 2026, there's a key piece of information that's not being talked about when we're talking about those changes and those inherently additional examinations that are going to be happening.

[00:05:08]And one of the things that we need to consider and this is off of the job aid the that's in the internal documents for Spicer Allen job aid. It's a four-page job aid. This is on the second page.

[00:05:23]Second paragraph, third paragraph.

[00:05:26]So in order to grant under the nonservice connected aggravation secondary theory, this important section here is very important and I'm going to go ahead and read that. Okay. While a baseline is not required prior to ordering an examination, a baseline level of disability of the nonerviceconnected condition remains required to grant service connection for the non-service connected disability based upon aggravation. Sorry, I'm not feeling the best, so I'm not reading word for word, but that's basically what it is. So what do they mean by baseline?

[00:06:15]They mean that you have to medically show in evidence how disabling with using the 38 CFR part 4's level of criteria. You have to show how disabling your condition was or how disabled your condition was before it was aggravated.

[00:06:36]If you have no evidence to show that or support that in the raider's eyes, not in your eyes, not in the attorney's eyes, not in anybody's eyes other than the raider. If you don't have that, it clearly and unmistakably says that you can't grant service connection for that. even if there's a positive medical opinion.

[00:06:59]So even if the examiner says, "Oh yeah, I at least as likely as not think that that that this condition was aggravated by this service connected condition.

[00:07:11]It's written in plain English in the M21-1 manual and in the job aid for this." So, the job aids are they're like internal SOPs that clearly tell the staff members how to, you know, apply the M21.

[00:07:28]But it says right here, it says that if the veteran's baseline is still required, so the baseline prior to the aggravation is required in order to grant service connected conditions.

[00:07:40]Now, a lot of you will think, okay, well, we're getting all these examinations for these non-service connected aggravation thing.

[00:07:51]We're all getting all these examinations. Clearly, the examiner should be able to go, okay, well, the baseline's zero. In the absence of evidence, the baseline should be zero.

[00:08:02]So, I shouldn't have to prove anything.

[00:08:05]If you can't prove what my baseline was, it should be zero. Well, don't worry guys, the VA thought of that, too.

[00:08:13]So, it says, "When rating, do not presume a baseline or 0% without supporting evidence. If a baseline cannot be established despite all development efforts, the rating decision narrative should explain why the degree of aggravation cannot be determined from the available evidence and state that the claim for non-service connected aggravation must therefore be denied. But what many of you probably read from that is development despite all development efforts.

[00:08:50]Well, unfortunately, there are no development efforts that are going to be done. There's no there's no requirement for the VA to reach back out to the veteran to clarify anything with this because unfortunately the way that 38 CFR 3.310B used to be rated was or used to be adjudicated is that the veteran had to prove the baseline before the VA would get an examination.

[00:09:25]And that cut down on frivolous examinations that weren't supported by evidence, medical evidence.

[00:09:32]So if the veteran couldn't prove that their what their baseline was beforehand, and I have to be clear here, the veteran can provide a lay statement, but that lay statement had to be dated back in time, you know, before the aggravation happened. And that le lay statement had to attest to things that the person writing the lay statement could attest to.

[00:10:00]If you wanted to try to say that your pulmonary function levels were this level and you don't have a lab finding to support that, you're not a qualified clinic clinician to make that determination. So your lay statement doesn't matter. Or if you say things like, well, I was unable to walk to my front porch. I I can't go out and check the mail. I become winded too easily.

[00:10:23]Unless unless the actual situation in the 38 CFR part 4 accounts for those symptoms as being part of how it's rated, those symptoms don't matter whenever it comes to establishing a baseline.

[00:10:42]So if you're talking about like migraines, the the evidence that had to happen before the aggravation has to show the frequency of prostrating migraines. And one of the main challenges with showing such evidence is treatment records do not match compensation disability criteria. They there's not a one forone trade-off there. oftentimes uh treatment focuses on the medications that you used, the interventions that you have that the doctors that are treating you oftentimes don't ask questions or treat you in ways that the compensation reviews for. So it can become exceedingly challenging to establish a baseline depending on what the disability is that we're talking about. Like if we're talking about a muscularkeeletal condition that you're saying is aggravated by something else. Well, unfortunately, you would have to show that you what your baseline level was. So, what your range of motions were beforehand medically. You couldn't just go it was bad. You know, you might be able to show painful motion at that time.

[00:12:02]And that's challenging because you're kind of walking a tight rope with this.

[00:12:07]The more ev the more severely disabled you are pre-agravation, the more they're going to subtract from your current evaluation level. So like if you had painful motion going back in time for your knee and you're rated at 20% now, you go to a CMP examination.

[00:12:28]Now the way this gets rated is they have to take the pre-agravation level and subtract it from the current evaluation level. So if your pre-evaluation level is 10%, they have to subtract that from the 20%. So if you got this service connected that way and the evidence shows you at 10% before the aggravation, your final 20 minus 10 would equal you're now rated at 10% for your knee.

[00:12:57]So the problem is you have to walk a fine line with your evidence. Like if you're a person that had a CPAP before the aggravation for sleep apnnea, then that would be 50% and if you have only a CPAP after the aggravation, then 50 minus 50 equals zero.

[00:13:17]So you have to be very careful using that theory. more examinations on this uh for the non-service aggravation of a non-service connected condition for a service connected condition. I'm going to predict that not a lot of veterans are going to organize their evidence in such a way that they establish the baseline needed to grant it even if there is a positive medical opinion. I'm going to make a wild guess here and say less than 20% of people and I'm being very generous with the 20% of people because if we use the same kind of criteria as Terara re-evaluations so like duty to assist errors for Terara those do not have a high success rate and they have less restrictions than the 38 CFR 3.310B aggravation of a non-service connected condition. So, I think because either the evidence doesn't exist to establish the baseline, which is going to be for the majority of veterans, that's going to be the main hangup, or the veteran didn't know to include that evidence with their claim for secondary service connection. So, the evidence isn't of record, so they get denied for that. or even if they do get granted for it, they're going to potentially get less of an overall percentage because the the evidence actually shows like in the sleep apnea scenario where they had 50% before the aggravation and 50% a after the aggravation, it's not even worth claiming it. So why would you even want to? So like in the sleep apnea if you just get your claim rated secondary like sleep apnea secondary to PTSD you get 50% with that CPAP versus if you go to the subsequent examination and let's say that they do actually agree that it was aggravated by your PTSD and you get a 0% service connection. Did you win? I don't even know if you won um at that point in time. But I just kind of wanted to talk about how more examinations do not mean more grants.

[00:15:31]So a lot of this is going to be filtered through the lens of did you establish the baseline? And the answer is probably going to be no because that baseline establishment isn't your perception on it. Okay, this is a fundamental fact. It goes back to it's the raider's interpretation of whether or not you establish that baseline.

[00:15:54]So, it's something that maybe an attorney can fight at the board. Fair enough. But if you establish the baseline, then that's a denial. And it's not it's a absolute denial. And I mean, I could show you parts of the manual in there, the 2D part, but um this is just from the job aid section of how the staff are going to do it, but this is mostly just a casual video about how the VA ordering more exams do not equate to more grants, especially with this particular theory for service connection. you know the 522D there especially in this particular topic because it has such strict criteria but yeah you'll get an exam how many times have you got exams and it just leads to another denial so unfortunately and I don't have like a necessarily a bad opinion about the Spicer changes I just know from rating claims that Spicer like this particular theory will just waste money getting exams for the most part. And sometimes you don't want to be granted under this theory to begin with. But anyway guys, that's about all I got for you in this kind of sick rambly video. Oh man, it's 17 minutes. Now, if you made it to the end and you think that sometimes I say things that are important to you guys, please like and subscribe the videos. It does help the channel spread the message. Um, if you're somebody that that just absolutely loves and enjoys the new Spicer rating decision, please advise people about the need for the baseline evidence to support the baseline being established. Not in your opinion, in the Raiders's opinion.

[00:17:40]You've got to meet an un an unstated expectation that you can't corroborate with. So anyway guys, that's about I got for you in this one. Raider out.