In today's episode of the VA Form 21 Podcast, I am going to teach you how to become a better advocate by challenging the VA Medical Examiner's competence - or at least rebutting the presumption of competence in your client's BVA appeals.
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VA claims and appeals invariably require a medical opinion to prove the relationship of a functional impairment to military service.
Sometimes this means a VA medical expert will need to testify that a particular disability is at least as likely as not related to military service.
Sometimes, it means a medical expert will need to testify that a particular post-service functional impairment is at least as likely as not analogous to symptomatology, diagnoses, or and event that occurred in service.
Sometimes, a medical expert will need to offer testimony as to whether one medical condition caused or aggravated another.
If you were in Federal district court, you would need to prove up the competence of any expert witness that you wanted to use to establish a material fact.
This principle is so basic that Federal Rule of Evidence 702 lays out exactly what the party offering a medical expert must prove:
(a) The VA medical expert’s specialized knowledge will help the judge understand and decide the case;
(b) The VA medical expert’s opinion is based on sufficient facts or data;
(c) The VA medical expert’s opinion uses reliable principles and methods; and
(d) The VA medical expert has reliably applied the principles and methods to the facts of the case.
These principles are very similar to the principles the CAVC noted it will consider when determining whether a VA medical opinion is “adequate”:
“[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
In fact, the critical difference between the Nieves-Rodriguez test and the FRE test for expert competence is proof of the medical expert’s specialized knowledge.
You have to establish this element every single time for your private medical examiners.
The VA does not have to make that proof.
Under a case called Rizzo, the Federal Circuit endorsed a perspective that a medical expert appointed by the VA is presumed “competent”. Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).
The Federal Circuit reached this conclusion by using the presumption of regularity to presume that the VA’s regular process is to appoint only those experts who are competent to render an opinion on the facts at issue.
Because the presumption of regularity operates to presume that which appears regular is actually regular, the Federal Circuit reasoned that the presumption of regularity should operate to presume that the VA’s appointment of competent examiner’s was the regular process.
ATTIG SIDEBAR: This presumption is a one-way street.
If you submit YOUR own private medical expert, the BVA will presume the competence of the VA’s expert, while looking for any minuscule irregularity to undermine the competence of your expert.
That’s a “non-adversarial” process for you.
The American judicial system (the one we Vets served and fought to preserve) is built on the adversarial search for the truth.
Its eradication in a VA claim or appeal invariably subordinates the search for the truth to the VA’s desire to more easily deny claims and appeals.
Because it is a presumption, veterans can rebut it.
Likewise, veterans can always argue that the presumption does not attach if the record shows some irregularity in the VA’s process of selecting an expert.
Now, we all know that the VA routinely uses nurses, administrative employees, physician’s assistant (and from time to time, doctors who received their medical training at Hogwarts) to decide critical medical issues in a case.
These appointments are presumed competent, which under Rizzo means that the opinion of a presumed competent expert is presumed competent.
If you are scratching your head here, you are in good company.
As noted above, even if the VA medical expert is presumed competent, his opinion may nevertheless be inadequate under Nieves-Rodriguez.
This is one of those fictions in VA law that I write about: the rule that VA medical expert competence to render an opinion is presumed has transmogrified, over time, into a misconception that the opinion itself is competent evidence.
Those 2 questions – the VA Medical Expert’s competence to render an opinion and the competence of the expert's opinion as material and relevant evidence – are in fact totally separate legal questions.
Returning to the critical point: a clear challenge to the VA Medical Expert’s competence will prevent it from attaching.
But because the appointment of the individual is presumed regular and competent, you are going to need something more than just the name or title of the individual to show that the appointment of a particular expert is irregular (preventing the presumption from attaching) or you going to need a clear challenge to the examiner’s competence directly.
The second scenario has, to the best of my ability to research, played out only once in a precedential decision of the CAVC: the presumption of competence did not attach to a medical professional who herself admitted, in her opinion, that she lacked the expertise necessary to provide the opinion requested by the Board. Wise v. Shinseki, 26 Vet. App. 517 (2014).
The CAVC has, however, remanded far more cases to the BVA for consideration of competence of a VA medical expert when the record demonstrates a clear challenge that the examiner is not qualified to opine on a medical matter because of her experience and expertise.
It is in this way that we can eliminate, as a practical matter, the presumption that VA medical opinions are competent:
Every. Single. Time.
How do you do this?
By providing facts or argument that challenge the VA Medical Expert's competence to render the opinion - and the opinion itself - you either rebut the presumption of competence or the presumption does not attach. Either way, you have just required the BVA to address the issue of the VA Medical Examiner's competence in its decision.
For examples of the facts and argument which might be used to rebut the presumption of competence, we should look to FRE 702.
Let me be clear: challenging the presumption of the competence of a VA expert rebuts only the presumption.
It does necessarily yield a finding that BVA must find that the expert lacks competence.
It DOES mean the BVA must adjudicate and provide adequate reasons and bases establishing the VA medical expert’s competence.
And to adjudicate the VA Medical Expert’s competence, there must be evidence of that expert’s competence in the record.
With evidence of the expert’s competence in the record, you are able to make specific evidence-based challenges to the competency of the VA medical examiner and his opinion.
See how that worked?
By challenging the competence of a VA medical examiner in every NOD and VA Form 9, you rebut the presumption of competence, and set yourself up to do what attorneys do best: make evidence based arguments why a VA medical expert is not competent as an expert to opine on a particular issue.
But it all starts with a request.
I strongly encourage you to consider adding to your NOD and VA Form 9 templates a challenge to the VA Medical Expert’s competence and a request for a copy of evidence used to demonstrate the competency of VA medical experts.
I cannot stress this enough:
Every single time, without fail, your advocacy and your client’s odds of winning are greatly enhanced if your firm submits, with every Notice of Disagreement and VA Form 9, a challenge to the competency of the VA’s medical expert.
If we have a copy of the actual VA medical opinion, we make our challenge more specific, and use the bullet points in the template to guide us in making more specific arguments.
Where do you get this template?
In exchange, you’ll get a free version of this template as well as a couple other templates and perks. There are other perks to becoming a "Rookie" level sponsor, so use the link in the shownotes to jump over to Patreon and find out more.
There’s one HUGE advantage to being sure to challenge the VA Medical Expert’s competence in every single NOD and VA Form 9.
It helps appellate firms like myself challenge the presumption of VA examiner competence.
In a very – very – rare dissent from a denial of a petition for review at the Supreme Court, two justices with very different judicial philosophies (J. Sotomayor and J. Gorsuch) wrote very critically of this presumption, and lauded judges at the Federal Circuit who were taking a long and hard look at wiping this presumption off the books.
Take a read of what they wrote in dissents to the denial of cert in the Mathis appeal. First, Justice Gorsuch:
Lower courts often presume that Department of Veterans Affairs medical examiners are competent to render expert opinions against veterans seeking compensation for disabilities they have suffered during military service. The VA appears to apply the same presumption in its own administrative proceedings.
But where does this presumption come from? It enjoys no apparent provenance in the relevant statutes. There Congress imposed on the VA an affirmative duty to assist — not impair — veterans seeking evidence for their disability claims. And consider how the presumption works in practice. The VA usually refuses to supply information that might allow a veteran to challenge the presumption without an order from the Board of Veterans’ Appeals. And that Board often won’t issue an order unless the veteran can first supply a specific reason for thinking the examiner incompetent.
No doubt this arrangement makes the VA’s job easier. But how is it that an administrative agency may manufacture for itself or win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the interests of those the law says the agency is supposed to serve?
Now, you might wonder if our intervention is needed to remedy the problem. After all, a number of thoughtful colleagues on the Federal Circuit have begun to question the presumption’s propriety. And this may well mean the presumption’s days are numbered. But I would not wait in hope. The issue is of much significance to many today and, respectfully, it is worthy of this Court’s attention.
Next, Justice Sotomayor:
This petition raises important questions about how the Government carries out its obligations to our veterans. The Board of Veterans’ Appeals (Board) applies a rebuttable presumption when reviewing veterans’ disability claims: The medical examiner whose opinion the Department of Veterans Affairs (VA) relied on to deny a veteran’s claim is presumed competent, absent a specific objection by the veteran.
To raise an objection, a veteran needs to know the medical examiner’s credentials. And yet, the VA does not provide veterans with that information as a matter of course. Nor does it always provide veterans with that information upon request. The only road to guaranteed access to an examiner’s credentials runs through a Board order. The Board, however, has sometimes required the veteran to have already raised a specific objection to an examiner’s competence before ordering the VA to provide the credentials. This places a veteran in “a catch-22” where she “must make a specific objection to an examiner’s competence before she can learn the examiner’s qualifications.”
As Justice Gorsuch explains, the Board’s presumption is questionable. But the presumption is not the only problem. A decision by the VA to deny benefits in reliance on an examiner’s opinion, while denying the veteran access to that examiner’s credentials, ensures that the presumption will work to the veteran’s disadvantage.
The petitioner here did not ask the VA to provide the examiner’s credentials, and so this petition does not allow review of both the VA’s practice and the Board’s presumption. Full review would require a petition arising from a case in which the VA denied a veteran benefits after declining to provide the medical examiner’s credentials. Until such a petition presents itself, staying our hand allows the Federal Circuit and the VA to continue their dialogue over whether the current system for adjudicating veterans’ disability claims can be squared with the VA’s statutory obligations to assist veterans in the development of their disability claims.
Given all that, why didn’t the SCOTUS grant cert and review the presumption themselves?
One simple reason: the veteran who asked the SCOTUS to review the presumption did not challenged the presumption or request evidence of the examiner’s competence.
So, in the end, here’s how to be a better advocate for your clients at the BVA:
* Insert a challenge to every VA Medical Expert’s competence in every VA Form 9 and Notice of Disagreement
* Request proof of the VA Medical Expert’s competence in every VA Form 9 and Notice of Disagreement
* If you don’t get the proof, or if the BVA rejects or ignores your request for proof of competence, I’m happy to take a look at your BVA decision to see if I can either get a remand for your client at the CAVC or use your case to eliminate, once and for all, the presumption that VA examiners are competent