On May 17, NOVA filed an amicus brief in support of the appellant’s request for rehearing in Freddie Mathis v. Robert McDonald, No. 2015-7094. Kenneth Carpenter, Carpenter Chartered, drafted NOVA’s brief in this case, which involves the presumption of competency for VA medical examiners.
The Board originally denied Mr. Mathis’ claim for entitlement to service connection for sarcoidosis. The VA examiner, who found no nexus between the veteran’s service and his sarcoidosis, was a family practitioner. Before the CAVC, Mr. Mathis argued the Board erred by relying on an inadequate opinion and VA failed to establish the physician was competent to opine in the case.
The CAVC determined the Board’s finding that the physician’s opinion was adequate, was not clearly erroneous and the lay statements of record were not competent to provide a nexus. Regarding the competency of the family practitioner to offer an expert opinion in the field of pulmonology, the CAVC acknowledged the presumption of competency was rebuttable, but the burden was on Mr. Mathis to challenge the examiner’s competency in the first instance and he had not done so.
Mr. Mathis appealed to the Federal Circuit. The Federal Circuit framed the issue as “whether this court should disavow the presumption of competency as it applies to VA medical examiners.” Slip op. at 6. The Federal Circuit traced the development of the presumption from Rizzo through Parks, noting “the VA benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case.” Slip op. at 8.
Before the Federal Circuit, Mr. Mathis argued, among other things, that the presumption of regularity should only apply to “routine, non-discretionary, and ministerial procedures,” not to VA examiners whose selection and assignment are “discretionary and not been shown to bear indicia of reliability.” Slip op. at 8-9. The Federal Circuit acknowledged Mr. Mathis raised legitimate points, particularly in light of the cases relied upon in Rizzo. The court noted those cases primarily dealt with ministerial functions, and the presumption of regularity has “been applied repeatedly to the government’s mailing of certain types of notices.” Slip op. at 10. The Federal Circuit further noted the CAVC has been hesitant to expand the presumption, citing Kyhn v. Shinseki, 26 Vet.App. 371 (2013). “Nowhere in the Rizzo line of cases, however, did either the Veterans Court or this court perform an analysis to verify that the procedures attending the selection and assignment of VA examiners are, in fact, regular, reliable, and consistent.” Slip op. at 11-12.
Although the court noted Mr. Mathis’ argument that the M21-1 demonstrates the inherently unreliable nature of assigning examiners and the government’s argument that VA can request a specialist’s opinion when necessary, the court determined “the process by which the VA appoints examiners for a particular case remains unclear.” Slip op. at 12-13. The court could not make a determination as to the reliability of the procedures for selecting an examiner, but determined it did not need to resolve that question. The court held it was bound by “clear precedent” to presume the examiner in question was competent. “We note, however, that, though there may be a fair basis to criticize the Rizzo line of cases, there exists a practical need for an administrable rule, given the volume of claims the VA is charged with processing. Replacing the presumption established by Rizzo would require a concrete, clear standard for determining the sufficiency of an examiner’s qualifications to conduct an examination or provide a medical opinion.” Slip op. at 13.
Judge Reyna wrote a 25-page concurrence “to state my view that experience has shown that presuming the competence of individuals who write medical opinions in veterans cases has produced results inconsistent with the statute” and concluded “the entire court should review the case law concerning the presumption of competence with the objective of eliminating it.” Slip op. at 1 (concurring opinion). He further stated: “A presumption based on no evidence is an assumption. Assuming that every examiner is competent stacks the deck against a veteran seeking to challenge an adverse medical opinion. We should overturn the ‘assumption of competence.’ The VA should provide evidence regarding the qualifications of the examiners on whose opinions it relies when denying veterans benefits.” Slip op. at 24-25 (concurring opinion).
You can read the entire Federal Circuit opinion here.
In the brief supporting rehearing en banc, NOVA argued that judicially created presumptions benefitting VA are contrary to the veteran-friendly statutory scheme created by Congress. While Congress has created numerous presumptions designed to benefit veterans, it has created none for VA. Instead, the CAVC and Federal Circuit have applied the presumptions of regularity and competence used in other adversarial proceedings to veterans’ cases.
Specifically, the Federal Circuit expanded the presumption of regularity and created the presumption of competence, justifying it as necessary to prevent remands for additional evidence that might complicate cases and lead to delay and backlogs. NOVA argued, however, these presumptions are unfair.
"The judicially created presumption that all VA examiners and individuals providing opinions in compensation cases are to be presumed competent permits the VA to evaluate such evidence without VA needing to meet any factual predicate other than the fact that it hired the person providing the opinion. Nor does it give the veteran the benefit of the doubt. To the contrary, this presumption removes completely the benefit of the doubt and impermissibly shifts the burden to the veteran to show that the VA examiner or the individual providing the medical opinion was not competent."
NOVA Brief at 6 (citations omitted). While an adversarial system would allow for discovery, no such avenue is available to a veteran. “Yet, when the veteran asserts he or she did not receive a notice from the VA or questions the probativeness of the evidence developed by the VA by questioning the qualification of a VA examiner, the adversarial presumptions of regularity and competence are imposed, allowing VA to defeat the assertion without evidence.” NOVA Brief at 7.
In addition, presumptions favoring VA improperly shift the duty to develop the record to the veteran. “A veteran’s claim is not fully and sympathetically developed if notices by the VA or the Board are not received by the claimant. A veteran’s claim is not fully and sympathetically developed if a burden is imposed on a claimant to set forth the specific reasons why the litigant concludes that the expert is not qualified to given an opinion, particularly when the claimant does not have guaranteed access to information about the medical professional’s credentials.” NOVA Brief at 11.
Judicially-created presumptions borrowed from the adversarial system do not fit within the veterans’ benefits system created by Congress, and NOVA urged the Federal Circuit to grant Mr. Mathis’ petition for rehearing en banc. The brief can be viewed here.