On December 22, 2016, NOVA filed an amicus brief before the United States Supreme Court in support of Mr. Mathis’ petition for writ of certiorari to the United States Court of Appeals for the Federal Circuit (Federal Circuit). Mr. Mathis is seeking review of the Federal Circuit’s denial of his appeal in which the court declined to overturn the presumption of competency as it applies to VA examiners. Mathis v. McDonald, No. 2015-7094 (April 1, 2016). Kenneth Carpenter, Carpenter Chartered, drafted NOVA’s brief, which was also submitted on behalf of the National Organization of Social Security Claimants’ Representatives (NOSSCR). You can read more about the entire procedural history of this case here.
In its decision, the Federal Circuit 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 concluding “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.
Mr. Mathis filed a petition for rehearing. NOVA filed an amicus brief in support of that petition, which you can read here. The Federal Circuit denied the petition in August 2016. Mathis v. McDonald, No. 2015-7094 (August 17, 2016). Although the denial itself was only two pages, there were two separate concurrences and two separate dissents filed. You can read the entire decision here.
Mark Lippman, counsel of record for Mr. Mathis, filed a petition for writ of certiorari in November 2016. Mr. Mathis argued the creation of the presumption of competency undermines the nonadversarial process created by Congress, which requires VA to raise and fully develop all issues. Because most veterans do not have legal counsel in their proceedings before VA, imposing the presumption of competency greatly disadvantages veterans in this system.
Pro se claimants have no concept of the legal requirements imposed by the presumption, lacking the simple awareness – let alone sophistication – to raise a timely objection, to request information about the examiners’ qualifications and then to articulate specific reasons for their lack of competency.
Mathis Petition at 17.
Furthermore, VA examinations are an essential part of the current system, and selecting qualified professionals to conduct these examinations is critical. Federal Rule of Evidence 702 addresses the standard for determining expert witness qualifications and, while not binding in VA adjudication, has been used as a guide for evaluation of VA medical opinions. “Yet, under the Federal Circuit’s presumption of competency, every VA medical health practitioner is presumed qualified to provide an expert opinion on any medical issue, not matter how complex or specialized.” Mathis Petition at 21.
Mr. Mathis also argued there is no evidence of regularity in VA’s process for selecting medical evaluators, the presumption is nearly impossible to rebut, the presumption undermines transparency and accountability in VA adjudication, and administrative efficiency alone cannot justify the presumption. You can read the entire brief here.
Kenneth Carpenter filed the amicus brief on behalf of NOVA and NOSSCR on December 22, 2016. Noting the Supreme Court’s prior decisions in Brown v. Gardner, Shinseki v. Sanders, and Henderson ex rel. Henderson v. Shinseki, NOVA argued the adoption of the presumption of competency contradicts the nonadversarial, pro-veteran nature of the statutory scheme adopted by Congress. The “benefit-of-the-doubt” rule applies “to all material issues relating to a claim, including the competency as well as the credentials of a VA examiner.” NOVA Brief at 10. The presumption of competency makes it easier for VA to deny veterans’ claims, which undermines the “benefit-of-the-doubt” rule.
Tracing the evolution of the presumption of regularity, NOVA argued its expansion to the competency of VA examiners is inappropriate because “adjudication of a veteran’s claim is not a ministerial act.” NOVA Brief at 12. Furthermore, requiring a veteran to challenge the VA examiner’s qualifications is “entirely premised on the mistaken assumption that the VA adjudication process operates like an adversarial process in which veterans are provided a process in order to challenge the expertise of VA experts. No such process exists because the adjudication process designed by Congress never contemplated such challenges.” NOVA Brief at 13. This judicially-created presumption places an evidentiary burden on veterans who have no access to information regarding the qualifications of a VA examiner. You can read the brief here.
Other amici filings include Law School Veterans Clinics and Attorneys, Disabled American Veterans, Federal Circuit Bar Association, and Paralyzed Veterans of America. The government response is now due on February 22, 2017.