Per VBA's M21-1, Adjudication Procedures Manual, "a Veteran has no legal right to be accompanied by counsel during an examination or record an examination." This policy is referred to as "The Veteran's Legal Rights."
It is based on Precedent Opinion 04-91 from the VA General Counsel. Per this General Counsel opinion, if the Veteran refuses to participate unless his or her counsel is present for the examination or unless he or she can record the examination, the refusal to participate can be considered a failure to report for the examination.
The Resources page has directions on how to access and view this opinion.
Neither the Constitution, the Administrative Procedure Act, nor VA statutes and regulations provide a right to counsel at medical examinations scheduled by VA for evaluation of beneficiaries, including psychiatric evaluation. As, under the relevant constitutional, statutory, and regulatory provisions, there is no "right" to be accompanied by an attorney to this type of agency activity, refusal to participate unless accompanied by an attorney may be considered a failure to report for purposes of VA regulations at 38 C.F.R. 3.655 providing for discontinuance of benefits for failure to report for examination. Similarly, a beneficiary may not insist on using a recording device at a VA medical examination, and refusal to participate due to absence of such a device may be considered a failure to report for purposes of VA regulations governing termination of benefits.
- Vet. Aff. Op. Gen. Couns. Prec. 04-91