Mathis v. Shulkin, 582 U.S. ___ (2017)

HELD: The Supreme Court declined to review the Federal Circuit’s decision that refused to disavow the presumption of competence afforded to VA examiners. The reason the Federal Circuit refused to disavow the presumption in this particular case was because the veteran did not challenge the VA examiner’s credentials or qualifications at the agency level.

Justices Sotomayor and Gorsuch wrote separate statements questioning the presumption. Justice Sotomayor stated that in order for a veteran to challenge an examiner’s qualifications, the veteran must know the examiner’s credentials. This can be difficult/impossible to get from VA – which creates a “Catch-22” for the veteran. She added: “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.” She left the door open to a future review, stating: “Full review would require a petition arising from a case in which the VA denied a veteran benefit after declining to provide the medical examiner’s credentials.”

Justice Gorsuch questioned the origin of the presumption – noting that it does not come from statute. He described how the presumption works in practice: “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 the Board will not issue an order unless the veteran provides “a specific reason for thinking the examiner incompetent.” He further questioned how “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.” He recognized that several Federal Circuit judges have questioned the propriety of the presumption and stated that “this may well mean the presumption’s days are numbered.” However, he did not hold out hope – and concluded that the issue was worthy of the Supreme Court’s attention.