Mathis v. McDonald

• Decision Date: 19 August 2016
• Docket Number: 2015–7094
• Citation: 834 F.3d 1347 (Mem)
• Parties: Freddie H. Mathis, Claimant–Appellant, v. Robert A. McDonald, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

834 F.3d 1347 (Mem)

Freddie H. Mathis, Claimant–Appellant,

v.Robert A. McDonald, Secretary of Veterans Affairs, Respondent–Appellee.

2015–7094

United States Court of Appeals, Federal Circuit.

August 19, 2016

Mark Ryan Lippman, The Veterans Law Group, La Jolla, CA, for Claimant–Appellant.

William James Grimaldi, Department of Justice, Y. Ken Lee, Samantha Ann Syverson, Department of Veterans Affairs, Washington, DC, for Respondent–Appellee.

Linda E. Blauhut, Jennifer Ann Zajac, Paralyzed Veterans of America, Washington, DC, for Paralyzed Veterans of America, Amicus Curiae.

Kenneth M. Carpenter, Esq., Law Offices of Carpenter Chartered, Topeka, KS, for National Organization of Veterans Advocates, Inc., Amicus Curiae.

Before Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit Judges.

Dyk, Circuit Judge, concurs in the denial of the petition for rehearing en banc.

Hughes, Circuit Judge, with whom Prost, Chief Judge, Lourie, O'Malley, Taranto, and Chen, Circuit Judges, join, concurs in the denial of the petition for rehearing en banc.

Reyna, Circuit Judge, with whom Newman and Wallach, Circuit Judges, join, dissents from the denial of the petition for rehearing en banc.

Stoll, Circuit Judge, with whom Newman, Moore, and Wallach, Circuit Judges, join, dissents from the denial of the petition for rehearing en banc.

ON PETITION FOR REHEARING EN BANC

Per Curiam.

ORDER

A petition for rehearing en banc was filed by claimant-appellant Freddie H. Mathis. A response to the petition was invited by the court and filed by the respondent-appellee Robert A. McDonald. Two motions for leave to file amici curiae briefs were also filed and granted by the court.

The petition, response, and briefs of amici curiae were referred to the panel that heard the appeal, and thereafter were referred to the circuit judges who are in regular active service. A poll was requested, taken, and failed.

Upon consideration thereof,

IT IS ORDERED THAT :

The petition for rehearing en banc is denied.

The mandate of the court will be issued on August 26, 2016.

Dyk

, Circuit Judge, concurring in the denial of the petition for rehearing en banc.

To me both sides here are partly right and partly wrong or at least partly unclear. I agree with Judge Hughes that the presumption of competence of medical examiners is reasonable, as is placing the burden on the veteran to raise any issue as to competence. At the same time I also agree with Judge Reyna that the veteran should be able to secure information about the examiner's qualifications from the Department of Veterans Affairs (“VA”) upon request without securing a Board of Veterans' Appeals or court order. Judge Hughes declines to opine as to when the VA's duty to assist requires it to supply qualifications information and suggests that the veteran may need to provide a “reason” to suspect an examiner is incompetent. In my view, imposing such an obligation on the VA to routinely provide qualifications information to the veteran in response to a request (as part of the duty to assist) should not place an undue burden on the VA. This case involves no such request. But one might hope that the VA would adopt that approach for the future so that the veteran on request will have the information necessary to mount a challenge to the medical examiner's qualifications.

Hughes

, Circuit Judge, with whom Prost, Chief Judge, Lourie, O' Malley, Taranto, and Chen, Circuit Judges, join, concurring in the denial of the petition for rehearing en banc.

I concur in the denial of the petition for rehearing en banc but write separately to note the limited nature of the rebuttable presumption and emphasize the VA's obligations to develop the record and to assist the veteran. Those duties ensure that a veteran will have access to information regarding a medical examiner's credentials when appropriate. And if the VA fails to properly fulfill these obligations, its decisions are subject to case-specific review and reversal by both the Board of Veterans Appeals and the Court of Appeals for Veterans Claims, and to review in this court for improper legal restrictions and any constitutional violations. The limited, rebuttable presumption of competency simply permits the VA to assume that a chosen medical examiner is competent to conduct examinations. It does not provide a presumption that the examination report and the information contained therein is correct—the probative weight of the report still must be determined by the regional office and the Board. And despite this presumption, a veteran may always request information to challenge an examiner's competency from the regional office or the Board. I see no legal reason to object to the limited, rebuttable presumption of competency as long as the Secretary's other legal obligations, including the duty to assist and to develop the record, are fulfilled.

In fact, the Board has frequently justified providing veterans with information regarding examiners' qualifications based on its duty to assist. See No. 1501503, 2015 WL 1194124, at *8 (Bd. Vet. App. Jan. 13, 2015) (“Although the RO directed the Veteran to contact the doctor directly for such, the Board finds that ensuring receipt of the CV is, in this instance, subject to the duty to assist the Veteran in substantiating his claim.”); No. 1543733, 2015 WL 7875614, at *2 (Bd. Vet. App. Oct. 13, 2015)

(“Although the Board's Privacy Act Officer directed the attorney to contact the facilities where the examinations were held for such information, ensuring receipt of the CVs is, in this instance, subject to the duty to assist the Veteran in substantiating his claims.”). Likewise, in Nohr v. McDonald, the Veterans Court explicitly recognized that the VA's duty to assist and its duty to obtain records obligated the Secretary to assist the veteran in developing the record regarding an examiner's competency. As the court said, “the Board cannot hide behind the presumption of regularity and ignore Mr. Nohr's request for assistance in obtaining documents necessary to rebut the presumption.” 27 Vet.App. 124, 133 (2014). Thus, the Veterans Court has recognized that it would be improper for the VA to both refuse assistance and invoke the presumption.

It is true that the VA will sometimes deny such requests when, for example, a request is made before an examination and there is no reason to suspect that an examiner is incompetent. See No. 1452787, 2014 WL 7740599, at *9 (Bd. Vet. App. Dec. 1, 2014)

. However, that does not prevent this information from being provided at a more appropriate time. Indeed, in at least five different cases where the veteran has requested the CV of his examiner, the VA has been directed to comply with this request. Nohr , 27 Vet.App. at 128 ; No. 1552016, 2015 WL 10004845, at *12 (Bd. Vet. App. Dec. 11, 2015) ; No. 1543733, 2015 WL 7875614, at *2 (Bd. Vet. App. Oct. 13, 2015) ; No. 1538484, 2015 WL 6939522, at *1–2 (Bd. Vet. App. Sept. 9, 2015)

; No. 1501503, 2015 WL 1194124, at *7–8 (Bd. Vet. App. Jan. 13, 2015). More importantly, the VA's duty to assist requires it to consider a claimant's request for further information, including information about an examiner's competency. The scope of that duty, and including the circumstances and timing of when such information should be provided, is not before us in this case and I offer no view on when that duty requires the VA to supply an examiner's CV when requested. It suffices to say that the duty to assist requires the VA “to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim,” 38 U.S.C. § 5103A(a)(1), and, thus, it should not routinely require an order from the Board or the Veterans Court before such necessary information is provided.

In this case, it does not appear that Mr. Mathis ever requested information regarding the examiner's qualifications. See Mathis v. McDonald , 643 Fed.Appx. 968, 969–71 (Fed. Cir.2016)

; see also

Mathis v. McDonald , No. 2013–3410, 2015 WL 2415067, at *3 (Vet. App. May 21, 2015) (“Here, [Mr. Mathis] points to no evidence that relates to an objection to the February 2012 examiner on the basis of competence.”). In fact, he did not raise the issue of competency until his case was on appeal to the Veterans Court. Mathis , 643 Fed.Appx. at 970–71. Even in the absence of the presumption of competency, it would still be inappropriate for the Veterans Court or this court to adjudicate the factual question of an examiner's competency in the first instance.

Similar procedural deficiencies existed in the cases that this petition calls into consideration. In Rizzo v. Shinseki , 580 F.3d 1288, 1290–91 (Fed. Cir. 2009)

, there is no mention of an attempt to procure information about the examiner's qualifications; instead, the veteran simply challenged the VA's failure to introduce affirmative evidence of his qualification. In Bastien v. Shinseki , 599 F.3d 1301, 1306 (Fed. Cir. 2010), the veteran requested information about the examiner's qualifications and it was provided, but the veteran failed to challenge the examiner's competency. In Sickels v. Shinseki , 643 F.3d 1362, 1365 (Fed. Cir. 2011), and Parks v. Shinseki , 716 F.3d 581, 586 (Fed. Cir. 2013), the veterans failed to request information about the VA examiners' qualifications. Indeed, in Parks, we specifically declined to offer an “opinion on whether an ARNP experienced only in family medicine may be qualified to opine on causes of diabetes.” 716 F.3d at 586. We have approved a (rebuttable) presumption of competency, but we have not had occasion—and do not here have occasion—to address how the VA must fulfill its duty to assist, or other legal duties, when questions of competency arise. We have not upheld a denial of a claimant's request for competency information where there was reason to question competency and the information was needed to answer the question. Meanwhile, as noted above, the...