Mathis v. McDonald, docket no. 2015-7094 (Fed. Cir. Aug. 19, 2016)
HELD: The Federal Circuit denied the veteran’s petition for en banc rehearing of its prior (non-precedential) decision that declined to disavow the presumption of competence afforded to VA examiners.
In a single-judge memorandum decision, the CAVC rejected the appellant’s arguments regarding the competency of the VA examiner who had provided a negative medical nexus opinion. See Mathis v. McDonald, docket no. 13-3410 (J. Lance, May 21, 2015) (Mathis I). The CAVC held that while the presumption of competency is rebuttable, the first step in doing so is to challenge the examiner’s competency. Because the veteran did not challenge the competency of the examiner at the Board or RO levels, the Court found that he had not met his burden to rebut the presumption. Id.
The veteran appealed to the Federal Circuit, arguing that the Court should “disavow the presumption of competency as it applies to VA medical examiners,” asserting that “VA’s procedure for selecting qualified examiners is inherently unreliable because the VA broadly recommends assigning generalists except in unusual, ill-defined cases.” See Mathis v. McDonald, docket no. 2015-7094 (Apr. 1, 2016) (Mathis II). The Court, somewhat reluctantly, declined to reassess the presumption of competency, although it did discuss the line of relevant cases (Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); and Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013)), and noted that the appellant’s argument “presents some legitimate concerns.” Nevertheless, the Court found that it lacked “jurisdiction to make factual findings on appeal regarding the competency” of the VA examiner and “are bound by clear precedent to presume” the examiner’s competency.
In a separate opinion, one of the Federal Circuit judges concluded that “the entire court should review the case law concerning the presumption of competence with the objective of eliminating it.” The judge based his conclusion on VA’s general practice of not providing evidence of an examiner’s qualifications; the appearance that the presumption renders the competency of a VA examiner “unreviewable”; the due process problem in requiring a veteran to challenge an examiner’s qualifications; VA’s “unknown” process in selecting examiners; and, most troubling, VA’s actions since the presumption has been applied. Specifically, since the presumption has been applied, VA has emphasized the use of non-specialists. VA has eliminated the requirement that reports be signed by a physician – now only requiring the signature of a “health care provider.” This judge also highlighted the recent evidence of the “irregularity” in VA’s process for selecting examiners as shown in the controversy surrounding TBI examinations being conducted by unqualified examiners.
Despite this well-crafted opinion, the Federal Circuit declined to rehear this appeal en banc. However, while the order declining en-banc review was only two pages long, the opinion includes an additional 29 pages of separate concurring and dissenting opinions questioning the ongoing validity of applying the presumption of administrative regularity in this context.
Advocacy note: The burden is still on the veteran to challenge the adequacy of an examination and/or the qualifications of the examiner. If the veteran feels that the examination was not adequate and/or the examiner was not qualified to be conducting the examination, the veteran must notify VA of these concerns in writing.