I’ve wrote about it on the Veterans Law Blog, but one of my biggest gripes with the VA is the crappy medical opinions that they provide.
As any practitioner who works in the VA ratings system will tell you, the inadequate C and P exam (Compensation and Pension Exam) has become the rule and not the exception.
A C and P exam (aka, C&P, or Comp and Pen) is where the VA Doctor – theoretically – reviews your C-File (Claims File), conducts a physical exam and tests, studies the medical literature and then decides whether there is science to support your position that military service is related to your current disability.
The VA administers hundreds, if not thousands, of C and P exams every day. And most of them are woefully inadequate.
You know what I’m talking about…we’ve talked about it here before:
* They send a nurse to do a doctor’s job
* They have internists commenting on complex conditions they know nothing about
* They use the opinion as a means to Develop the Record to Deny the Claim
* In the case of many Veterans, they use Doctors that don’t even KNOW that certain medical conditions exist.
This week I worked on several cases where the quality of the VA examiner’s opinion was the primary issue. In the case I looked at, an Occupational Therapist authored an opinion on the complex etiology of a lymphoma.
That’s like asking a plumber to offer an opinion on what’s wrong with your tractor.
Sure, plumbing and tractor repair both involve mechanical-y things, and both have metal parts, but that’s where the similarity ends.
In the case I mentioned above, the Occupational Therapist missed the obvious cause for the lymphoma that even the “greenest” of Oncologists is going to spot.
* Because he hadn’t studied lymphomas in any detail in school.
* Because he didn’t treat lymphoma as part of his daily practice.
* Because he didn’t read about lymphomas in the medical literature to keep current on his knowledge.
* Because he didn’t author any articles or journals on lymphoma.
I’m not faulting him – he’s an Occupational Therapist. He has no place offering an opinion on the etiology of a lymphoma.
Yet the VA assigns THIS person to do the medical opinion. And the BVA Rubber Stamps it. And – for now – OGC’s Group 7 puts a pretty red bow on it. (OGC is the VA’s Office of General Counsel – it’s attorneys defend the VA nonsense at Court. They are best known for running up the taxpayer tab on absurd time-wasting arguments).
I’m at a loss to give a REASONABLE explanation.
The Problem of Junk Science was Solved YEARS Ago in Other Federal Courts.
Back in the 1970s, the Federal Rules of Evidence were introduced to Federal Courts, and one of them was Rule 702 on the Adequacy of Medical Examiner Expertise:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” (emphasis is mine).
Back in 1993, the Supreme Court laid out several rules that dictates when a Court can even hear expert testimony – its called the Daubert Standard, and you can read about it here.
The Veterans Court has no such rules. In the Veterans Court, here’s the general lay of the law:
* VA employees are presumed to be qualified experts unless the Veteran objects.
You can point me to cases that suggest how a Veteran might challenge those so-called VA experts.
You can point me to cases where the Court has questioned how the VA chooses experts.
But the practical reality is that the issuance of a mere VA name-badge is the only legal standard used to rubber-stamp knowledge and expertise that often is not there.
In fact, the Veterans Court is the only US Court that I know of which does not have a black letter rule that regulates the quality of experts used to decide complex medical issues.
In fact, the whole Veterans Benefits System, from top to bottom, is kinda like the lead character in the movie “Shaun of the Dead” when it comes to the danger of Junk Science invading Veterans Benefits law:
[youtube id=”mqQ8Y9Sjp7o” width=”550″ height=”310″]
Inadequate exams by unqualified doctors have no place in American jurisprudence – they quickly erode faith in the system.
Veterans – who were taught in the military how to quickly sniff out bulls**t – walk away with a sense that the “game” is rigged for the VA
And maybe it is. After 8 years doing this work, the phrase “Pro Veterans Benefits System” has a different meaning to me: it means:
In the name of “clearing the never-ending backlog” we are going to deny you due process, access to remedy, and the right to discover the REAL facts about your case (arguably the 3 most important legal principles that have defined Western Jurisprudence since the Magna Carta).
Starting Today – Here’s What I’m Going to Do to Challenge EVERY VA C and P Exam.
Any time that a Veteran hires me to appeal their Ratings Decision, I’m going to challenge the adequacy of the medical exam and the credentials of the medical examiner.
Any time that a Veteran hires my law firm to represent them before the BVA, I’m going to challenge the adequacy of the medical exam and the credentials of the medical examiner.
Any time that a Veteran hires me to represent them in the Veterans Court, I’m going to challenge the adequacy of the medical exam and the credentials of the medical examiner. And I’m going to ensure that the record contains the Examiner’s credentials (or lack thereof).
I’ll stop when the Veterans Court applies a Rule that serves as a Gatekeeper against the flood of crappy “expert” opinions from unqualified medical examiners.
How Can YOU Help – Is there Anything You Can Do to Battle Inadequate C and P Exams?
1) Add THIS Language to your Notice of Disagreement and VA Form 9’s.
Using this language, ALWAYS challenge the adequacy of the examiner’s credentials at the NOD and VA Form 9 stages:
The Code of Federal Regulations requires that to be competent, a medical opinion must be “provided by a person who is qualified through education, training or experience” to offer one. 38 C.F.R. § 3.159(a)(1). Competency requires some nexus between qualification and opinion. Dep’t. of Veterans Affairs Proposed Rules, 66 FR 17834-01, 17835 (Apr. 4, 2001) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (stating that “opinions of witnesses skilled in that particular science, art or trade to which the question relates are admissible in evidence”), overruled on other grounds by King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012)).
However, 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. Sickels v. Shinseki, 643 F3d 1362, 1366 (Fed. Cir. 2011). Even though the law presumes the VA has selected a qualified person, the presumption is rebuttable. See Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010) (explaining that a veteran challenging the qualifications of a VA-selected physician must set forth specific reasons why the veteran believes the expert is not qualified to give a competent opinion).
Given that one part of the presumption of regularity is that the person selected by the VA is qualified by training, education, or experience in the particular field, the presumption can be overcome by showing the lack of those presumed qualifications.
I hereby request that a copy of the C&P Doc’s resume, CV, list of publications, list of specialties, etc., such that his/her experience and qualifications may be examined, reviewed, questioned, and/or challenged. I specifically request that any and all information stored in VetPort – or any other system of records – that pertains to the Examiners’ credentialing as a medical professional since the Examiner’s date of first employment and/or association with the VA – be included in my C-File and specifically examined by the BVA and CAVC to determine the adequacy of the Examiner’s so-called expertise. 38 U.S.C. 7402; 38 CFR Part 46;VHA Handbook 1100.19; VA Handbook 5005, Part II, Chapter 3; VHA DIRECTIVE 2012-030.
Furthermore, I object to the following aspects of the VA Examiner’s opinion:
By failing to get information that allows you to participate in your appeal, the BVA cannot fail to collect it without violating the Duty to Assist and – I would argue – violating Constitutional Due Process.
Not to mention Veterans Advocates at the CAVC can make some pretty interesting arguments to start educating OGC Group 7 attorneys (the attorneys that represent the VA at the CAVC) and begin educating the Veterans Court on the very real problem of inadequate medical opinions – what many of us call “Junk Science” – and push for a rule to protect this area of law from being over-run by Junk Science.
2) Attach your Examiner’s credentials to your NOD or VA Form 9.
Where do you find them? The first place is in the system referenced above…the second place is the link below.
First you go to this: https://www.va.gov/directory/guide/division_flsh.asp?dnum=1
Then you click on the geographical area where you think the VA doctor is.
Then you click on the particular HCS that you think he/she works in.
Then you click on the Health Care Providers button on the left, and alphabetically find your doc.
What you find there is the BARE MINIMUM that should be included in your C-File….. if you demand it.
3) Get an Attorney to help you at the Veterans Court.
If the BVA has denied your appeal by relying – in part or whole – on Junk Science or an inadequate medical exam – get an attorney to represent you at the Court of Appeals for Veterans Claims (CAVC).
Lawyers are trained – and practiced – how to challenge Junk Science, and with a bit of time and enough appeals, we can work with the Court to craft a rule that serves as a Gate Keeper against Junk Science.
And I make this commitment to you – just like I spent years teaching Veterans Attorneys HOW to get their client’s C-File, I will start teaching attorneys how to challenge the qualifications of unqualified examiners at all levels of this system.
In fact, right now, I’m going to go add this to my “This-Shit’s-Gotta-Change” List:
“Get Court to Propound Rule Consistent with Federal Rule of Evidence 702 – Ensuring That all Experts are Qualified as Experts Before C and P Exams and Opinions are given any weight”.