Mathis v. McDonald ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
FREDDIE H. MATHIS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7094
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-3410, Judge Alan G. Lance, Sr.
______________________
ON PETITION FOR REHEARING EN BANC
______________________
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.
2 MATHIS v. MCDONALD
REYNA, Circuit Judge, with whom NEWMAN and WALLACH,
Circuit Judges, join, dissents from the denial of the peti-
tion 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.
PER CURIAM.
ORDER
A petition for rehearing en banc was filed by claim-
ant-appellant Freddie H. Mathis. A response to the
petition was invited by the court and filed by the respond-
ent-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 thereaf-
ter 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.
FOR THE COURT
August 19, 2016 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
United States Court of Appeals
for the Federal Circuit
______________________
FREDDIE H. MATHIS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7094
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-3410, Judge Alan G. Lance, Sr.
______________________
DYK, Circuit Judge, concurring in the denial of the peti-
tion 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
2 MATHIS v. MCDONALD
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 neces-
sary to mount a challenge to the medical examiner’s
qualifications.
United States Court of Appeals
for the Federal Circuit
______________________
FREDDIE H. MATHIS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7094
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-3410, Judge Alan G. Lance, Sr.
______________________
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 obliga-
tions 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 Ap-
peals and the Court of Appeals for Veterans Claims, and
2 MATHIS v. MCDONALD
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 con-
tained 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 presump-
tion 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’ qualifica-
tions based on its duty to assist. See No. 1501503, 2015
WL 1194124, at *8 (Bd. Vet. App. Jan. 13, 2015) (“Alt-
hough 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 presump-
tion of regularity and ignore Mr. Nohr’s request for assis-
tance in obtaining documents necessary to rebut the
presumption.” 27 Vet. App. 124, 133 (2014). Thus, the
MATHIS v. MCDONALD 3
Veterans Court has recognized that it would be improper
for the VA to both refuse assistance and invoke the pre-
sumption.
It is true that the VA will sometimes deny such re-
quests 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 provid-
ed 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 suffic-
es to say that the duty to assist requires the VA “to make
reasonable efforts to assist a claimant in obtaining evi-
dence 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 qualifica-
tions. See Mathis v. McDonald, No. 2015–7094, 2016 WL
1274457, at *1–2 (Fed. Cir. Apr. 1, 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
4 MATHIS v. MCDONALD
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, 2016 WL 1274457, at *2.
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’ qualifica-
tions. 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 (rebut-
table) 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 infor-
mation where there was reason to question competency
and the information was needed to answer the question.
Meanwhile, as noted above, the Veterans Court and the
Board have recognized such informational duties where
competency is genuinely placed in issue.
MATHIS v. MCDONALD 5
It is also important to put the presumption of compe-
tency in context in other ways.
First, the dissent appears to conflate an examiner’s
competence with the adequacy of the exam he performs.
See Reyna Dissent at 4, 8 n.6. The dissent relies on
Sickels to support its conclusion that “[t]his court has
extended the presumption of competence to apply not only
to examiners, but also to their reports.” Id. at 8 n.6. But
Sickels does not reach so far. Rather, Sickels simply
concludes that the presumption of competency includes
the presumption that an examiner was “sufficiently
informed.” Sickels, 643 F.3d at 1365. Moreover, like the
situation here, Sickels relied on the fact that the argu-
ment that the examiner was insufficiently informed was
not raised before the Board. Id. at 1366. Accordingly, the
Board was not required to “state reasons and bases
demonstrating why the medical examiners’ reports were
competent and sufficiently informed.” Id. Nowhere does
Sickels hold that the presumption of competency extends
to the examination report.
Therefore, apart from challenging an examiner’s qual-
ifications, the veteran may hold the examiner to the
separate standards that demand adequacy of the examin-
er’s opinion and examination. The law is clear that when
the Board seeks the opinion of a medical expert, “that
opinion must be adequate to allow judicial review.”
D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). Moreover,
the opinion must rest on an examination, whether of the
veteran or of medical records, adequate to support the
opinion offered. See Barr v. Nicholson, 21 Vet. App. 303,
311 (2007) (“[O]nce the Secretary undertakes the effort to
provide an examination when developing a service-
connection claim, even if not statutorily obligated to do so,
he must provide an adequate one or, at a minimum, notify
the claimant why one will not or cannot be provided.”). “A
medical opinion is adequate when it is based upon consid-
eration of the veteran’s prior medical history and exami-
6 MATHIS v. MCDONALD
nations and also describes the disability in sufficient
detail so that the Board’s ‘evaluation of the claimed
disability will be a fully informed one.’” Id. at 310 (quot-
ing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).
The VA Manual also sets forth internal procedures
aimed at producing adequate examination reports. The
VA Manual provides that “[a] VA examination report
submitted to the rating activity must be as complete as
possible,” and specifically calls out that “[a] medical
opinion [that] is not properly supported by a valid ra-
tionale and/or the evidence of record” is an example of a
“deficienc[y] that would render an examination insuffi-
cient.” M21-1MR § III.iv.3.D.3.a. It then directs that if
an examination is insufficient, it should be returned to
the VA examiner or the contracted provider. Id.
§ III.iv.3.D.3.e.
As this law and guidance makes clear, whether an ex-
aminer is competent and whether he has rendered an
adequate exam are two separate inquiries. Therefore,
simply because an examiner has been presumed compe-
tent does not relieve him of his duty to provide an ade-
quate report.
Second, the dissent suggests that the VA periodically
engages unqualified examiners, and that the presumption
insulates these examiners from any review. See, e.g.,
Reyna Dissent at 7 (“In reviewing their reports, the Board
has indicated that not every doctor is qualified to testify
about every issue, and that some issues require special
knowledge.”); id. at 9–10 (“[The presumption] permits the
Board to rely on opinions when it knows almost nothing
about the person who prepared them. It almost entirely
insulates the VA’s choice of medical examiners from
review.”). However, VA regulations require that “compe-
tent medical evidence” be “provided by a person who is
qualified through education, training, or experience to
offer medical diagnoses, statements, or opinions.” 38
MATHIS v. MCDONALD 7
C.F.R. § 3.159(a)(1). Examinations provided by the VA
are generally conducted “by VA medical staff, VA contract
providers, or non-VA care providers.” VHA Directive 1046
at 1 (Apr. 23, 2014). The VA Manual provides that “VA
medical facilities (or the medical examination contractor)
are responsible for ensuring that the examiners are
adequately qualified.” M21-1MR § III.iv.3.D.2.b. Every
examination report or Disability Benefits Questionnaire
(DBQ) must contain the “signature, printed name and
credentials, phone number and preferably a fax number,
medical license number, and address” of the examiner, as
well as his or her specialty, if a specialist examination is
required. Id. Although Veterans Service Center employ-
ees are “not expected to routinely review the credentials of
clinical personnel to determine the acceptability of their
reports,” they must do so if “there is contradictory evi-
dence of record.” Id.
Regardless, even if the VA sometimes selects “unqual-
ified” examiners—an assertion not supported by any
evidence 1—the dissent overlooks the fact that a veteran
can get access to information about his examiner’s qualifi-
1 The dissent’s sole support for this assertion is
Krugman v. Dep’t of Veterans Affairs, a whistleblower
case from the Merit Systems Protection Board in which
the employee was fired from the VA because, among other
things, he refused to perform compensation and pension
examinations. Reyna Dissent at 5 n.3 (citing No. 2015–
3156, 2016 WL 1426256, at *1 (Fed. Cir. Apr. 12, 2016)).
As a defense to the agency’s removal action, the employee
asserted that he refused to conduct examinations because
he thought that he was not competent to perform exami-
nations. However, the VA never found him incompetent,
nor did any claimants ever challenge his competency.
Therefore, this case does not demonstrate that the VA
hires unqualified examiners.
8 MATHIS v. MCDONALD
cations. As noted above, 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. See
supra at 3. Further, the VA Manual includes a section on
“Questions About Competency and/or Validity of Exami-
nations” and directs the VA to Nohr for “more information
on a claimant’s request for information, or complaints,
about a VA examination or opinion.” M21–1MR
§ III.iv.3.D.2.o.
The dissent emphasizes, however, that “[i]f a veteran
asks for an examiner’s qualifications, the VA will not
provide them unless it is ordered to do so by the Board,
the Veterans Court, or this court.” Reyna Dissent at 10. I
do not believe that is correct, nor do I believe the dissent’s
single citation to a Veterans Court decision proves this
point. This case involves only one instance where an
order was required to release examiner qualifications, and
it demonstrates nothing about whether the VA has will-
ingly provided this information in the majority of other
cases. In fact, it at most suggests that when the VA
denies requests for examiner qualifications, the system is
equipped to remedy these denials.
Finally, the dissent fails to appreciate the nature of
the medical evidence used by the VA. Specifically, the VA
may order a medical examination, but the agency is not
required to provide a medical examination or opinion if
the record already contains sufficient medical evidence for
the VA to make a decision on the claim. See 38 U.S.C.
§ 5103A(d)(1). By the dissent’s account, the competency of
the doctors that performed any examinations contained in
this “sufficient medical evidence,” which may be decades
old in any given case, would need to be established before
the VA may rely on it to make a decision on the claim.
The VA provides over 1 million disability evaluations
yearly and in 2015 alone, the Veterans Health Admin-
istration completed 2,899,593 individual disability bene-
MATHIS v. MCDONALD 9
fits questionnaires and/or disability examination tem-
plates. Resp. Br. at 8. The dissent has provided no
guidance as to how the elimination of this limited pre-
sumption would work with regard to the millions of
disability evaluations that have already been provided
and form the basis for the continuing evaluation of the
millions of pending claims for benefits. Would the Secre-
tary be required to provide an affidavit or some other
supporting evidence of the examiner’s competence before
the Regional Office or the Board could rely on that exami-
nation report? Would the Secretary have to appoint a
specialist for each particular ailment a veteran alleges, as
Mathis implies would be necessary? If so, that will create
an incredible burden and may impair the operations of
the VA, a result that will negatively impact veterans.
Consequently, this court should not revise a procedure
that is one small piece of a very complicated and long
process, especially in a case that does not demonstrate a
problem with the use of that procedure.
I am certainly sympathetic to the concerns raised re-
garding the presumption of competency, and its potential
for misuse by the VA. The Secretary should be mindful of
its obligations and not reflexively rely on a presumption of
competency. But our review is limited and I see no legal
impediment to a rebuttable presumption of competency as
long as it is properly confined and consistent with the
Secretary’s other legal obligations. Thus, I respectfully
concur in the denial of rehearing en banc.
United States Court of Appeals
for the Federal Circuit
______________________
FREDDIE H. MATHIS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7094
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-3410, Judge Alan G. Lance, Sr.
______________________
REYNA, Circuit Judge, with whom NEWMAN and WALLACH,
Circuit Judges, join, dissenting from denial of rehearing
en banc.
In declining to undertake an en banc review, the court
leaves in place a judicially created evidentiary presump-
tion that in application denies due process to veterans
seeking disability benefits. The presumption, that the
Veterans Administration ordinarily and routinely selects
competent medical examiners as a matter of due course,
was created void of any evidentiary basis. Its application
has resulted in a process that is inconsistent with the
Congressional imperative that the veterans’ disability
process be non-adversarial, and that the VA bears an
affirmative duty to assist the veteran. In the face of these
2 MATHIS v. MCDONALD
circumstances, the government’s cries concerning its
administrative burdens do not resonate. I dissent, there-
fore, from my colleagues’ decision not to undertake an en
banc review of these considerations.
I. VETERANS AND EXAMINERS
Mr. Mathis served in the U.S. Air Force from August
1980 to August 2002. J.A. 1. In 2009 he applied for
disability benefits through the Veterans Administration
for his pulmonary sarcoidosis, shortly after being diag-
nosed with the condition. J.A. 56. In March 2011, Mr.
Mathis had a hearing before a Decision Review Officer.
J.A. 51. At the hearing, he and his ex-wife testified that
his breathing difficulties began while he was in the mili-
tary. J.A. 57. He also submitted statements from two of
his fellow service members that described Mr. Mathis’s
shortness of breath during active military service and
since that time. Id.
In February 2012, the VA requested a medical opinion
on whether Mr. Mathis’s sarcoidosis was due to military
service or began while he was in service. J.A. 2, 46. 1
1 When a veteran applies for disability benefits, the
VA is at times required to provide a medical examination
or opinion. 38 U.S.C. § 5103A(d). The medical profes-
sionals providing such examinations and opinions are
called examiners or “compensation and pension” examin-
ers. Cf. J.A. 45. Examiners are employed by the VA or
are outside contractors.
VA regional offices use the opinions prepared by ex-
aminers in determining whether to award a veteran
disability benefits. The decision whether to award bene-
fits often turns on whether the disability is shown to be
connected to the veteran’s military service. See, e.g.,
McClain v. Nicholson, 21 Vet. App. 319, 320–21 (2007).
In other words, as in this case, the service connection
MATHIS v. MCDONALD 3
An examiner reviewed Mr. Mathis’s claims file and
provided the VA with an opinion indicating that Mr.
Mathis’s sarcoidosis was “less likely than not (less than
50 percent probability) incurred in or caused by the
claimed in-service injury, event, or illness.” J.A. 47. The
following two paragraphs comprise the examiner’s analy-
sis:
While veteran claims to have had some pulmo-
nary symptoms while in service, there is nothing
to support that they were related to sarcoidosis. I
am not doubting the validity of the letters written
by [Mr. Mathis’s fellow service members] Mr.
Jackson and Mr. Adams stating that the veteran
had some breathing issues while in service. He
may very well have had such issues. But the Sar-
coidosis was doagnosed [sic] 7 years after service.
There is nothing to indicate that it existed within
one year of service. Had veteran had significant
breathing issues post service, one can assume he
would have sought medical care, and a simple
[chest X-ray] would have been ordered.
As the present lack of documentation exists, it
would have been an extreme stretch, and unrea-
sonable, to opine that veteran’s sarcoidosis existed
within one year of service.
J.A. 47.
The VA denied Mr. Mathis’s claim for benefits after
reviewing the examiner’s opinion and the Board affirmed,
explicitly relying on the examiner’s opinion in its analysis.
issue is often dispositive. If a VA regional office denies a
veteran benefits, the veteran may appeal to the Board of
Veterans’ Appeals (the “Board”), and then the United
States Court of Appeals for Veterans Claims (the “Veter-
ans Court”), this court, and the U.S. Supreme Court.
4 MATHIS v. MCDONALD
J.A. 57–61. Mr. Mathis timely appealed to the Veterans
Court. J.A. 1. At the Veterans Court, Mr. Mathis chal-
lenged the Board’s reliance on the examiner’s opinion.
Mathis v. McDonald, No. 13-3410, 2015 WL 2415067, at
*2–3 (Vet. App. May 21, 2015). He asserted that “there
are types of sarcoidosis characterized by a slow and
gradual development of symptoms,” and that the examin-
er’s analysis was inconsistent with this, seeming to im-
plicitly indicate that “all types of sarcoidosis necessarily
have a quick and rapid onset of severe symptomatology.”
Id. at *3.
Mr. Mathis argued that the report contained inade-
quate analysis, but the Veterans Court explained that
“there is no reasons or bases requirement imposed on [an]
examiner.” Id. at *2 (quoting Acevedo v. Shinseki, 25 Vet.
App. 286, 293 (2012)). Similarly, while Mr. Mathis com-
plained that the examiner cited no medical authorities,
the Veterans Court explained that an examiner is pre-
sumed to know about medical authorities under the
presumption of competence:
The presumption that VA medical examiners are
competent “includes a presumption that physi-
cians remain up-to-date on medical knowledge
and current medical studies.” Monzingo v.
Shinseki, 26 Vet. App. 97, 106–07 (2012) (holding
that the mere fact that an “examiner did not cite
any studies is not evidence that” he is unaware of
such studies and is not a basis for finding an ex-
amination report inadequate).
Id. at *3.
Mr. Mathis also objected to the VA’s failure to estab-
lish that the examiner was “qualified to offer an expert
opinion” on the issue, which he argued required “special-
ized knowledge, training or experience in the field of
MATHIS v. MCDONALD 5
pulmonology.” Id. at *3. The record indicated merely
that the examiner was a “staff physician.” 2 J.A. 49. The
Veterans Court explained that 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.” Id. at *3 (quoting Parks v. Shinseki, 716 F.3d 581,
585 (Fed. Cir. 2013)). It explained that a veteran’s “first
step” in overcoming the presumption is to object at the
Board to an examiner’s competence, and Mr. Mathis had
not done so. Id.
On appeal to this court, Mr. Mathis argued that the
presumption of competence is inconsistent with the non-
adversarial nature and pro-claimant procedures estab-
lished by Congress for veterans. He argued that the
presumption of regularity should not have been applied to
the VA and its outside contractors’ processes of selecting
examiners. 3 He argued that the presumption of regulari-
2 The briefing in this case indicates that Mr. Mathis
believes that the examiner was a family practice doctor,
see, e.g., Appellant’s Br. 30, but support for this is not in
the record.
3 In Krugman v. Dep’t of Veterans Affairs, No. 2015-
3156, 2016 WL 1426256, at *1 (Fed. Cir. Apr. 12, 2016), a
whistleblower case, this court was afforded a rare view of
how the VA selects examiners and the grounds it relies on
to establish competency. In that case, the VA hired Dr.
Krugman, an anesthesiologist, to be an Associate Chief of
Staff for Primary Care in September 2010. J.A. 5, 12. He
was hired to perform a variety of responsibilities, includ-
ing having “oversight responsibilities” for several outpa-
tient clinics in the south Texas area and being the
examiner for compensation and pension examinations in
that area. J.A. 12, 125, 158–59. The record shows that
when he was hired by the VA, Dr. Krugman had not
treated a patient in almost ten years. J.A. 25–26, 43. The
6 MATHIS v. MCDONALD
ty should only apply to routine, non-discretionary, and
ministerial procedures, not the competency of medical
examiners and their opinions.
II. RIZZO WAS WRONGLY DECIDED
In Rizzo, this court affirmed the Veterans Court’s ap-
plication of the presumption of regularity to the VA’s
choice of examiners. Rizzo v. Shinseki, 580 F.3d 1288,
1291 (Fed. Cir. 2009). In Rizzo, neither this court’s deci-
sion nor the Veterans Court’s decision cited evidence
about the VA’s—or its contractors’—processes for select-
ing examiners. Id. at 1292; Rizzo v. Peake, No. 07-0123,
2008 WL 4140421, at *2 (Vet. App. Aug. 26, 2008). The
presumption, therefore, was created without any eviden-
tiary basis that the VA’s process for selecting examiners
regularly yielded competent examiners. This was im-
proper. A “presumption should be predicated on evidence
that gives us confidence that a particular procedure is
VA wanted him to prepare to conduct examinations by
taking an online course and training for a week with an
experienced examiner. J.A. 158–60, 303. He took the
online course in October 2010 but did not undertake the
in-person training. J.A. 160, 303. The VA granted him
privileges to perform examinations on September 8, 2010
for one facility and on May 5, 2011 for a different facility.
J.A. 134–35; Oral Arg. 15:04–16:38.
When asked to perform compensation and pension ex-
aminations, Dr. Krugman refused on grounds that he was
not qualified. J.A. 161–62, 210, 303. The refusal formed
one of the complaints against him when the VA fired him.
J.A. 303; Resp. Br. 4. He argued on appeal that his
refusal to perform examinations could not have supported
his firing because he did not believe he was qualified to
perform them, and that a week of in-person training
would not have made him qualified. Pet’r Br. 30–31.
MATHIS v. MCDONALD 7
carried out properly and yields reliable results in the
ordinary course.” Mathis v. McDonald, No. 2015-7094,
2016 WL 1274457, at *5 (Fed. Cir. Apr. 1, 2016) (“Mathis
II”) (citing Posey v. Shinseki, 23 Vet. App. 406, 410 (2010)
and Malack v. BDO Seidman, LLP, 617 F.3d 743, 749 (3d
Cir. 2010)).
Additionally, the presumption of regularity has typi-
cally been only applied to routine, non-discretionary, and
ministerial procedures. Mathis II at *5 (citing, for exam-
ple, Davis v. Principi, 17 Vet. App. 29, 37 (2003)). In
Rizzo, this court affirmed the presumption’s application to
something far from a routine, ministerial procedure, a
process by which medical examiners are selected to pro-
vide expert opinions on medical issues.
The presumption of competence does not apply to pri-
vate physicians providing reports on behalf of veterans.
In reviewing their reports, the Board has indicated that
not every doctor is qualified to testify about every issue,
and that some issues require special knowledge. See, e.g.,
No. 1512074, 2015 WL 2161715, at *16 (Bd. Vet. App.
Mar. 20, 2015). This means that, under the presumption,
the VA is deemed to have chosen a doctor, nurse, or other
examiner who is competent to speak on the specific issue
in each case. It is unclear why this court or the Veterans
Court would assume that the VA’s process for adjudicat-
ing benefits yields reliable results in the ordinary course,
given that the Board remands almost half (47% in 2015)
of disability compensation appeals back to the regional
offices. 4 Specifically, because the presumption of compe-
tence was created on a basis that is devoid of evidence
showing that the VA’s process for selecting examiners is a
4 U.S. Dep’t of Veterans Affairs, Board of Veterans’
Appeals Annual Report Fiscal Year 2015 26 (2016), avail-
able at http://www.bva.va.gov/docs/Chairmans_Annual_
Rpts/BVA2015AR.pdf.
8 MATHIS v. MCDONALD
regular process that always results in a qualified examin-
er being selected, this court in Rizzo was wrong to affirm
the Veterans Court’s creation of the presumption of
competence. 5, 6
III. DUE PROCESS
This court has held that a veteran’s entitlement to
disability benefits is a property interest protected by the
Due Process Clause of the Fifth Amendment to the United
States Constitution. Cushman v. Shinseki, 576 F.3d
1290, 1298 (Fed. Cir. 2009); Sprinkle v. Shinseki, 733 F.3d
5 As my concurring opinion noted, the VA had re-
cently admitted that it used unqualified examiners for
some traumatic brain injury (TBI) examinations. Mathis
II at *15 (Reyna, J., concurring). According to VA guide-
lines, initial examinations for TBI must be performed by
only certain types of doctors, unlike most other diseases
and conditions, for which there are no such limiting
guidelines. Id. at 13, 15. The VA recently admitted
further that more than 24,000 veterans received initial
examinations for TBI conducted by unqualified examin-
ers. U.S. Dep’t of Veterans Affairs, VA Secretary Provides
Relief for Veterans with Traumatic Brain Injuries (June
1, 2016), http://www.va.gov/opa/pressrel/pressrelease.
cfm?id=2795.
6 This court has extended the presumption of com-
petence to apply not only to examiners, but also to their
reports. See Mathis II at *8, n. 2 (citing Sickels v.
Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (“The
argument that a VA medical examiner’s opinion is inade-
quate is sufficiently close to the argument raised in Rizzo
that it should be treated the same.”). The Board has
indicated that Sickels means that “in the absence of a
challenge to a VA medical opinion, it is presumed to be
adequate.” No. 1235436, 2012 WL 6556998, at *11 (Bd.
Vet. App. Oct. 12, 2012).
MATHIS v. MCDONALD 9
1180, 1185 (Fed. Cir. 2013). Since the presumption of
competence leaves veterans with no way to effectively
challenge the nexus between the VA examiners’ qualifica-
tions and their opinions, due process afforded other indi-
viduals in other legal disciplines is not extended to
veterans. There is no reasoned justification or eviden-
tiary support for treating veterans differently with re-
spect to medical opinions.
A veteran’s claim to disability benefits often will rise
or fall based on whether the Board believes an examiner’s
testimony. Gambill v. Shinseki, 576 F.3d 1307, 1322–23
(Fed. Cir. 2009) (Bryson, J., concurring); id. at 1324
(Moore, J., concurring). Yet, a veteran’s ability to chal-
lenge an examiner’s competency is limited because the VA
does not by default disclose any information about the
examiner’s qualifications. Mathis II at *8 (Reyna, J.,
concurring). 7 Veterans are unable to confront examiners
through voir dire, cross-examination, or interrogatories.
See, e.g., VA Manual M21-1MR § III.iv.3.D.2.o (“VA’s C&P
claim adjudication system does not have a procedure for
completion of interrogatories by VA personnel.”); No.
1340011, 2013 WL 7220329, at *6 (Bd. Vet. App. Dec. 4,
2013) (“There is no provision for interrogatories to the
specialist.”); 38 C.F.R. §§ 20.700(c), 20.706 (no cross-
examination is permitted at Board hearings); Gambill,
576 F.3d at 1324 (Moore, J., concurring) (arguing that a
veteran ought to be “provided with the opportunity to
confront the doctors whose opinions [the VA] relies upon
to decide whether veterans are entitled to benefits”).
The presumption allows the VA to rely on examiners’
opinions to deny veterans benefits without disclosing
anything about their qualifications to the veteran or to
the Board. It permits the Board to rely on opinions when
7 The VA does not even obtain information about an
examiner’s qualifications in every case. Appellee Br. 17.
10 MATHIS v. MCDONALD
it knows almost nothing about the person who prepared
them. It almost entirely insulates the VA’s choice of
medical examiners from review. On the other hand,
individuals providing examinations on behalf of veterans
have their qualifications and credentials carefully re-
viewed by the Board before their opinions are given
weight. 8 See, e.g., No. 1512074, 2015 WL 2161715, at *16
(Bd. Vet. App. Mar. 20, 2015). The presumption severely
limits veterans’ ability to effectively challenge adverse
examiner opinions.
Even if a veteran objects to an examiner’s competence
before the Board, a veteran must make a “specific” objec-
tion to an examiner’s competence—not merely a “general”
one—before the Board will review the examiner’s compe-
tence. Mathis II at *9, n. 8 (Reyna, J., concurring) (citing
cases). Presumably, a specific objection entails pointing
to a specific aspect of an examiner’s qualifications. But
with no information available on the examiner’s qualifica-
tions, a veteran is hindered in, if not entirely precluded
from, making such a specific objection before the Board.
If a veteran asks for an examiner’s qualifications, the
VA will not provide them unless it is ordered to do so by
the Board, the Veterans Court, or this court. See, e.g.,
Nohr v. McDonald, 27 Vet. App. 124, 128 (2014) (finding
that the Board erred in denying a veteran’s request for an
examiner’s CV when the veteran had identified an am-
biguous statement in the examiner’s report that suggest-
ed irregularity in the process of selecting the examiner);
see also Mathis II at *9, n. 5 (Reyna, J., concurring). The
Board may refuse to order the VA to do so when the
veteran has not already raised a specific objection to the
8 “Congress expressly permits veterans seeking ser-
vice-connected disability benefits to submit reports from
private physicians.” Gardin v. Shinseki, 613 F.3d 1374,
1378 (Fed. Cir. 2010) (citing 38 U.S.C. § 5125).
MATHIS v. MCDONALD 11
examiner’s competence. No. 1452787, 2014 WL 7740599
at *8 (Bd. Vet. App. Dec. 1, 2014). This can create a
situation in which the veteran must make a specific
objection to an examiner’s competence before she can
learn the examiner’s qualifications; otherwise, the Veter-
ans Court and this court will deny a veteran’s challenge to
the competency of the examiner. The veteran is rendered
hapless, caught in a classic Joseph Heller catch-22-like
circumstance.
As it does in cases involving medical opinions provid-
ed by professionals hired by the veteran, the Board should
be able to examine a VA examiner’s qualifications and
weigh them in determining the persuasive value of an
examiner’s reports rather than being instructed by this
court to presume that the examiner is competent. The
VA’s incentive to not provide evidence about the examin-
er’s qualifications will be strongest when an examiner is
not qualified or is barely qualified, the very circumstances
where the veteran, the Board, and the Veterans Court
ought to know an examiner’s qualifications.
Ordinarily, before an expert opinion may be relied up-
on, the expert’s competence must be established. See, e.g.,
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–
93, n. 10 (1993); Fed. R. Evid. 104. This court has ex-
plained that “competency requires some nexus between
[an examiner’s] qualification[s] and opinion.” Parks v.
Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013). Similarly,
the Supreme Court has explained that an expert witness
is permitted to testify on matters outside his firsthand
knowledge because of “an assumption that the expert’s
opinion will have a reliable basis in the knowledge and
experience of his discipline.” Daubert, 509 U.S. at 592.
VA medical examiners are “‘nothing more or less than
expert witnesses’ who provide opinions on medical mat-
ters.” Townsend v. Shinseki, No. 12-0507, 2013 WL
2152126, at *5 (Vet. App. May 20, 2013) (quoting Nieves-
Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008)).
12 MATHIS v. MCDONALD
The regulation applicable here—38 C.F.R.
§ 3.159(a)(1)—is analogous to Federal Rule of Evidence
702. Under Rule 702, district courts first determine if an
expert witness is competent to testify on a subject before
relying on the expert’s testimony. See, e.g., Carlson v.
Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th
Cir. 2016). In patent cases, “[t]estimony proffered by a
witness lacking the relevant technical expertise fails the
standard of admissibility under Fed. R. Evid. 702.”
Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d
1356, 1363 (Fed. Cir. 2008). The Veterans Court has
explained that the “rules on expert witness testimony” in
the Federal Rules of Evidence “provide useful guidance”
for the Veterans Court. Nieves-Rodriguez, 22 Vet. App. at
302.
The Supreme Court’s decision in Richardson v. Per-
ales supports a finding that, under the presumption of
competence, veterans lack due process. 402 U.S. 389
(1971). In Perales, the Supreme Court concluded that
procedural due process did not preclude five physicians’
written reports from being admitted into a social security
disability claim hearing without cross-examination based
on several specific factors that would “assure underlying
reliability and probative value.” Id. at 402–03. Several of
those factors are not met here. First, the claimant in
Perales, unlike the veterans here, had a right to subpoena
the reporting physicians. Second, the physicians in
Perales were all practicing physicians, unlike some career
examiners at the VA. Third, the examinations in Perales
were all clearly “in the writer’s field of specialized train-
ing.” Id. at 404. In contrast, the VA “broadly recom-
mends assigning generalists except in unusual, ill-defined
cases.” Mathis II at *6.
Several circuit courts have found that social security
claimants have an absolute right to cross-examine a
reporting physician. This stems from the Supreme
Court’s reference in Richardson v. Perales to a claimant’s
MATHIS v. MCDONALD 13
“right to subpoena the reporting physician and thereby
provide himself with the opportunity for cross-
examination of the physician.” 402 U.S. at 402; see, e.g.,
Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir. 1990).
“In the veterans’ uniquely claimant friendly system of
awarding compensation, breaches of the duty to assist are
at the heart of due process analysis.” Cook v. Principi,
318 F.3d 1334, 1354 (Fed. Cir. 2002) (Gajarsa, J., dissent-
ing). “If the Constitution provides no protection against
the occurrence of such breaches, then the paternalistic
interest in protecting the veteran is an illusory and mean-
ingless assurance.” Id. The presumption of competence is
inconsistent with the VA’s duty to assist veterans and the
non-adversarial nature of the proceedings. See Hayre v.
W., 188 F.3d 1327, 1331–32 (Fed. Cir. 1999); 38 U.S.C.
§ 5103A. “Congressional mandate requires that the VA
operate a unique system of processing and adjudicating
claims for benefits that is both claimant friendly and non-
adversarial.” Hayre, 188 F.3d at 1331. “An integral part
of this system is embodied in the VA’s duty to assist the
veteran in developing facts pertinent to his or her claim.”
Id.
The duty to assist has been found to require the VA to
provide the veteran with his service medical records, upon
request, and to inform the veteran of that right. Watai v.
Brown, 9 Vet. App. 441, 444 (1996) (“[T]he Secretary had
a duty to inform the [veteran] that the Secretary, upon
proper authorization as required by VA regulations,
would furnish copies of relevant service medical records to
[his private physician] to enable him to render a less
speculative opinion.”). Denying veterans information
about the qualifications of their examiners denies them
both the assistance necessary to make their claims and
their due process rights in making those claims.
14 MATHIS v. MCDONALD
IV. ADMINISTRATIVE BURDEN
The VA makes two arguments why the presumption
should not be removed. First, the VA argues that “in the
absence of the presumption established by Rizzo, ‘a con-
crete, clear standard for determining the sufficiency of an
examiner’s qualifications to conduct a medical examina-
tion’ would be needed.” Resp. to Pet. for Reh’g En Banc
12 (quoting Mathis II at *7). As support, the VA states
that the “VA provides an enormous volume of compensa-
tion examinations annually.” Id.
The VA is correct. Overturning Rizzo would require
the VA to apply a standard for selecting competent exam-
iners. The VA, however, overlooks that it has already
promulgated a clear standard for the VA and the Board to
apply when deciding whether a medical examiner is
competent:
(1) Competent medical evidence means evidence
provided by a person who is qualified through ed-
ucation, training, or experience to offer medical di-
agnoses, statements, or opinions. Competent
medical evidence may also mean statements con-
veying sound medical principles found in medical
treatises. It would also include statements con-
tained in authoritative writings such as medical
and scientific articles and research reports or
analyses.
38 C.F.R. § 3.159(a)(1) (emphasis added).
The Board can assess whether an examiner meets this
regulation upon review of her education, training, or
experience. 9 Indeed, this is the standard the Board
9 To be clear, the Board—not this court—should de-
cide what qualifications are needed to satisfy 38 C.F.R.
§ 3.159(a)(1) in application. Whether an examiner has the
MATHIS v. MCDONALD 15
applies when it reviews the credentials of private physi-
cians providing opinions and examinations on behalf of
veterans, for whom there is no presumption. See, e.g., No.
1100100, 2011 WL 749935, at *8 (Bd. Vet. App. Jan. 3,
2011) (“The Board finds that the private physician is
qualified through education, training, and experience to
offer a diagnosis and an opinion in this case.”) (citing 38
C.F.R. § 3.159).
Second, the VA defends the presumption of compe-
tence on the basis that removing it “would impair the
efficiency of” the VA’s “provision of medical examinations
and opinions.” Resp. to Pet. for Reh’g En Banc 13. It is
not clear that the substantive content, the quality of the
opinion, would be affected if the presumption of compe-
tence were removed. It is clear that removing the pre-
sumption would result in an administrative record upon
which the Board could properly review an examiner’s
qualifications when weighing the persuasiveness of her
reports. In addition, having an examiner’s CV would
permit a veteran to determine whether or not to challenge
the examiner’s competence.
But in the long run, removing the presumption of
competence could improve the efficiency of the judicial
review process in VA cases. As a veteran’s “first step” in
overcoming the presumption of competence is to object at
the Board, if the record contains no evidence about an
examiner’s competence, the Board will have to remand to
the VA for such evidence whenever a veteran sufficiently
necessary training and experience is a factual determina-
tion. See, e.g., Bradshaw v. Richey, 546 U.S. 74, 79
(2005); Mass. Mut. Life Ins. Co. v. Brei, 311 F.2d 463, 472
(2d Cir. 1962). Removing the presumption will not mean
that the VA always has to have specialists perform exam-
inations. See, e.g., No. 0838133, 2008 WL 5511667 at *7
(Bd. Vet. App. Nov. 5, 2008).
16 MATHIS v. MCDONALD
objects. Cf. Mathis II at *9, n. 6 (Reyna, J., concurring)
(citing cases where the Board remanded for the VA to
provide a curriculum vitae). And the Veterans Court has
already repeatedly needed to remand cases to the Board
when a veteran had sufficiently challenged an examiner’s
qualifications to the Board but the Board failed to analyze
the examiner’s competence. See id. at *9, n. 9.
For the foregoing reasons, I respectfully dissent.
United States Court of Appeals
for the Federal Circuit
______________________
FREDDIE H. MATHIS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7094
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-3410, Judge Alan G. Lance, Sr.
______________________
STOLL, Circuit Judge, with whom NEWMAN, MOORE, and
WALLACH, Circuit Judges, join, dissenting from denial of
rehearing en banc.
I believe the court should hear this case en banc to
reevaluate the presumption of competence afforded to VA
medical examiners and their opinions under our current
law. I question the propriety of such a presumption in a
uniquely pro-claimant and non-adversarial system.
I am also troubled by the idea that the VA itself might
apply the presumption when a veteran challenges, at the
agency level, the competence of the examiner or the
conclusions of the medical opinion. Even if we keep the
presumption of competence, like the presumption of
2 MATHIS v. MCDONALD
regularity from which it stems, it should apply to judicial
review of agency action. See Rizzo v. Shinseki, 580 F.3d
1288, 1292 (Fed. Cir. 2009) (“The presumption of regulari-
ty provides that, in the absence of clear evidence to the
contrary, the court will presume that public officers have
properly discharged their official duties.” (emphasis
added) (internal citation omitted)). The agency itself
should not rely on the presumption that it followed its
rules when evaluating the application of those very rules.
The VA’s Adjudication Procedures Manual suggests,
however, that the VA considers the presumption of com-
petence established by this court in Rizzo. Specifically,
where the agency determines that a veteran has raised a
concern regarding the medical examiner’s competence, the
procedures instruct that, among other seemingly appro-
priate considerations, the agency should note that “[t]here
is a presumption that a selected medical examiner is
competent.” VA Adjudication Procedures Manual, M21–
1MR, Part III, Subpart iv, ch. 3, § D(2)(o) (change date
April 28, 2016).
I believe this is an important issue, and it warrants
en banc review. For these reasons, I respectfully dissent
from the denial of the petition for rehearing en banc.