Mathis v. McDonald , 643 F. App'x 968 ( 2016 )

NOTE: This disposition is nonprecedential.
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.
______________________
Decided: April 1, 2016
______________________
MARK RYAN LIPPMAN, The Veterans Law Group, La
Jolla, CA, argued for claimant-appellant.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; Y. KEN LEE,
SAMANTHA ANN SYVERSON, Office of General Counsel,
2 MATHIS v. MCDONALD
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Before O’MALLEY, REYNA, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge O’MALLEY.
Concurring opinion filed by Circuit Judge REYNA.
O’MALLEY, Circuit Judge.
Appellant Freddie H. Mathis (“Mathis”) appeals from
a decision of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) affirming a Board of
Veterans’ Appeals (“Board”) decision denying service
connection for sarcoidosis, a pulmonary condition. Mathis
v. McDonald, No. 13-3410, 2015 U.S. App. Vet. Claims
LEXIS 654 (Vet. App. May 21, 2015). Because we are
bound by this court’s controlling precedent establishing a
presumption of competency for VA medical examiners, we
affirm.
BACKGROUND
Mathis served on active duty in the U.S. Air Force
from August 1980 to August 2002. According to private
treatment records, Mathis was diagnosed with sarcoidosis
in September 2009. 1 He filed a claim for service connec-
tion the following month. After a VA regional office
(“RO”) denied his claim in March 2010, Mathis appealed
his case to the Board.
The RO had determined that certain of Mathis’s ser-
vice treatment records (“STRs”) had become unavailable.
1 Sarcoidosis is “a chronic, progressive, systemic
granulomatous reticulosis of unknown etiology, character-
ized by hard tubercles.” DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY 1668 (32d ed. 2012).
MATHIS v. MCDONALD 3
In March 2011, in order to compensate for his missing
STRs, Mathis and his ex-wife testified at a Decision
Review Officer (DRO) hearing. During the hearing,
Mathis testified that his sarcoidosis began during the late
1990s (i.e., the last few years of his active duty) and that,
during his active military service, he experienced weak-
ness, fatigue, and shortness of breath. He stated that he
was treated for these symptoms while in active service.
He also testified that his sarcoidosis may be the result of
environmental exposures while he was stationed in Italy.
Mathis’s ex-wife testified that his health declined during
their marriage while he was on active duty. Finally,
Mathis submitted two statements from veterans who
were in the Air Force with him and described his short-
ness of breath during his active service and since that
time.
Based on these lay assertions, the VA obtained the
medical opinion of VA medical examiner John K. Dudek
in February 2012. Dr. Dudek reviewed Mathis’s claims
file, including the hearing transcript and lay statements,
but did not examine Mathis or perform any tests. Dr.
Dudek concluded that Mathis’s sarcoidosis was less likely
than not incurred in or caused by Mathis’s service. The
examiner found that there was no evidence to support the
conclusion that Mathis’s pulmonary symptoms while in
service were related to sarcoidosis. The examiner stated
that while he was “not doubting the validity” of the lay
statements, the sarcoidosis was diagnosed seven years
after service and nothing indicated the sarcoidosis existed
within one year of service. Joint Appendix (“J.A.”) 47.
Moreover, he suggested that, if Mathis had significant
breathing issues post service, “one can assume he would
have sought medical care.” Id.
In June 2013, the Board issued a decision on Mathis’s
claim. The Board made factual findings that Mathis’s
sarcoidosis “was not manifested during his military
service, is not shown to be causally or etiologically related
4 MATHIS v. MCDONALD
to his active military service, and is not shown to have
manifested to a degree of 10 percent or more within one
year from the date of separation from the military.” J.A.
51. The Board recognized that the VA has a duty to
assist, which includes providing a medical examination or
obtaining a medical opinion when necessary to make a
decision on a claim. Here, the Board noted that only a VA
medical opinion, rather than a medical examination, had
been afforded to Mathis, but, nevertheless, found that the
VA had met its duty by making all reasonable efforts to
obtain evidence necessary to substantiate Mathis’s claim.
The Board then stated that entitlement to service
connection for a particular disorder requires (1) evidence
of the existence of a current disorder, and (2) evidence
that the disorder resulted from a disease or injury in-
curred in or aggravated during service. 38 U.S.C.
§§ 1110, 1131. The Board found that, although Mathis
satisfied the first element, he failed to establish that the
second was met. Although the Board acknowledged that
Mathis and his friends and family were competent and
credible to report that he experienced fatigue and short-
ness of breath during and since his military service, it
held that these laypersons were not competent to assert a
causal link between these symptoms and the sarcoidosis.
The Board then found that all of the other evidence in the
claims file supported the VA’s denial of service connec-
tion. The only medical opinion contained in the claims
file, that of VA examiner Dr. Dudek, found no nexus
between Mathis’s service and sarcoidosis. And Mathis
testified at the DRO hearing that he did not seek treat-
ment and did not receive a diagnosis of sarcoidosis until
2009, seven years after his active service ended. The
Board, therefore, denied Mathis’s claim for service con-
nection.
Mathis then appealed to the Veterans Court. Mathis
argued to the court that: (1) the Board erred in relying on
an inadequate VA examiner opinion; and (2) the VA failed
MATHIS v. MCDONALD 5
to establish that the examiner was competent to provide
an opinion in this case. The Veterans Court dispensed
with Mathis’s first argument, holding that the Board’s
finding that the VA examiner’s opinion was adequate was
not clearly erroneous. It further agreed with the Board
that Mathis and his fellow service members were not
competent to draw a conclusion as to the cause of his
sarcoidosis.
As for Mathis’s second argument, the Veterans Court
noted that Mathis recognized legal authority that placed
the burden on the claimant to challenge the competency of
VA medical examiners. Nevertheless, Mathis argued that
the VA failed to establish that Dr. Dudek, who specialized
in family practice, was qualified to offer an expert opinion
in the field of pulmonology. The court held that though
the presumption of competency is rebuttable, objecting to
the examiner’s competence was the first step to overcom-
ing the presumption. Mathis conceded he had not object-
ed before the Board, but stated that he “wishes to
preserve for Federal Circuit appeal a challenge to the
correctness of” the case law on this issue. Mathis, 2015
U.S. App. Vet. Claims LEXIS 654, at *9. The Veterans
Court held that the mere fact that the VA examiner was
not a pulmonologist did not, by itself, render the opinion
inadequate. Therefore, it affirmed.
Mathis timely appealed. This court has jurisdiction
under 38 U.S.C. § 7292.
DISCUSSION
In an appeal from the Veterans Court, we review all
questions of law de novo. 38 U.S.C. § 7292(d)(1); see
Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014)
(citing Rodriguez v. Peake, 511 F.3d 1147, 1152 (Fed. Cir.
2008)). Absent a constitutional issue, however, we lack
jurisdiction to review factual determinations or the appli-
cation of law to the particular facts of an appeal from the
Veterans Court. 38 U.S.C. § 7292(d)(2); see Guillory v.
6 MATHIS v. MCDONALD
Shinseki, 603 F.3d 981, 986 (Fed. Cir. 2010); Moody v.
Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).
The only issue on appeal is a legal one: whether this
court should disavow the presumption of competency as it
applies to VA medical examiners. Recently, and over only
a short span of time, this court has developed a line of
authority applying the presumption of competency to VA
medical examiners and their medical opinions in veteran’s
benefits cases.
Rizzo was the first case. There, a veteran appealed a
denial of service-connection for an eye disability that he
alleged resulted from his exposure to ionizing radiation
during his service in the Air Force. The testimony of a
Ph.D. in radiation physics offered by the veteran and that
of a VA department expert were in conflict. Rizzo v.
Shinseki, 580 F.3d 1288, 1290 (Fed. Cir. 2009). The
veteran argued that the Veterans Court incorrectly held
that the Board could assume the qualifications of the VA
expert. We adopted the reasoning of the Veterans Court
in Cox v. Nicholson, 20 Vet. App. 563, 568 (2007), which
held that “the Board is entitled to assume the competence
of a VA examiner” based on the presumption of regularity.
Rizzo, 580 F.3d at 1290. Thus, we held that, “where as
here, the veteran does not challenge a VA medical ex-
pert’s competence or qualifications before the Board, this
court holds that VA need not affirmatively establish that
expert's competency.” Id.
A year later, we expanded on Rizzo in Bastien v.
Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010), finding
that case “controlling” on the issue of whether the Board
improperly relied on the department’s medical witness
without establishing his qualifications. We further clari-
fied that, in order to challenge a VA medical examiner’s
qualifications, a veteran must do more than merely re-
quest them. This is because “[a] request for information
about an expert’s qualifications . . . is not the same as a
MATHIS v. MCDONALD 7
challenge to those qualifications. Indeed, one may as-
sume that litigants who are told an expert witness’ quali-
fications frequently may conclude that there is no
reasonable basis for challenging those qualifications.” Id.
at 1306. We stated, moreover, that, in order to give the
trier of fact the ability to determine the validity of a
challenge to the expertise of a VA expert, a challenge
“must set forth the specific reasons why the litigant
concludes that the expert is not qualified to give an opin-
ion.” Id. at 1307.
These variations on a theme continued the following
year when we issued Sickels v. Shinseki, 643 F.3d 1362
(Fed. Cir. 2011). 38 U.S.C. § 7104(d)(1) requires the
Board’s decisions to include a written statement of the
reasons or bases for its findings and conclusions. In
Sickels, the veteran argued that the Board violated
§ 7104(d)(1) by not providing a written explanation for its
implicit conclusion that a VA medical opinion was suffi-
ciently informed. We held that, “[w]hile we did not explic-
itly state so in Rizzo, it should be clear from our logic that
the Board is similarly not mandated by section 7104(d) to
give reasons and bases for concluding that a medical
examiner is competent unless the issue is raised by the
veteran. To hold otherwise would fault the Board for
failing to explain its reasoning on unraised issues.”
Sickels, 643 F.3d at 1366.
Finally, and most recently, we applied the presump-
tion of competency in Parks v. Shinseki, 716 F.3d 581, 584
(Fed. Cir. 2013). There, the VA selected an advanced
registered nurse practitioner (ARNP) to determine
whether there was a relationship between a veteran’s
service and several health conditions, including diabetes.
We found that the VA was required to rely only on “com-
petent medical evidence,” which is defined by VA regula-
tions as “evidence provided by a person who is qualified
through education, training, or experience to offer medical
diagnoses, statements, or opinions.” 38 C.F.R.
8 MATHIS v. MCDONALD
§ 3.159(a)(1). We then stated, however, that, “[i]n the
case of competent medical evidence, 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.” Parks, 716 F.3d at 585 (citing Sickels, 643 F.3d at
1366). We explained that the presumption furthered the
policy of preventing “[r]epeated unnecessary remands for
additional evidence [that may] complicate many cases and
lead to system-wide backlogs and delays.” Id. We ad-
dressed, moreover, the veteran’s argument that under
Comer v. Peake, 552 F.3d 1362, 1363, 1369 (Fed. Cir.
2009), the record must be construed sympathetically in
favor of pro se veterans. We held that, because the veter-
an failed to raise an objection before the Board that
anything was improper with the VA’s selection of an
ARNP or the particular ARNP on his case, Comer did not
apply. Thus, we held that the Board was not required to
read into the record an argument that was never made.
Turning to the case at bar, Mathis recognizes that we
have endorsed the presumption of competency, but,
nevertheless, “asks th[is court] to disapprove Rizzo v.
Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) and its progeny.”
Appellant Br. 6 (citing Fed. Cir. R. 35(a)(1)). He says that
Rizzo came as a blow to pro se claimants and that apply-
ing the presumption “shift[s] the VA disability benefits
program towards an adversarial adjudicatory model and .
. . degrade[s] the disability evaluation process [by]
hav[ing] unqualified medical personnel provide expert
medical opinions.” Appellant Br. 3.
Mathis raises several arguments against the applica-
tion of the presumption of competency. He argues that
the presumption of regularity, which underlies the pre-
sumption of competency, should only apply to routine,
non-discretionary, and ministerial procedures. As such,
he maintains, it is improper to apply the presumption to
VA medical examiners where the procedures for their
selection and assignment are discretionary and have not
MATHIS v. MCDONALD 9
been shown to bear indicia of reliability. He contends
that the presumption of competency lies in contradiction
to Congress’s articulated desire to create a nonadversarial
adjudicatory system for veterans. See Vanerson v. West,
12 Vet. App. 254, 260 (1999) (“[T]he legislative history of
the Veterans’ Judicial Review Act, Pub. L. No. 100-687,
102 Stat. 4105 (1988), indicates that adversarial concepts
of adjudication were not to be adopted into the VA adjudi-
cation system.”). According to Mathis, the presumption of
competency also unfairly puts the burden on the veter-
an—an unsophisticated party who cannot readily access
the relevant information—to raise a specific objection to
an expert’s testimony. Finally, he argues that it would
not be unduly burdensome for the government to estab-
lish the qualifications of its examiners affirmatively.
Mathis’s presumption of regularity argument in par-
ticular presents some legitimate concerns. Rizzo invoked
three cases in support of its holding: Cox, 20 Vet. App. at
568, Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir.
2004), and Butler v. Principi, 244 F.3d 1337, 1338 (Fed.
Cir. 2001). None of these cases, however, provides a solid
foundation for the broad application of the presumption of
regularity to medical examiners. Cox relied on Hilkert v.
West, 12 Vet. App. 145, 151 (Vet. App. 1999), a Veterans
Court case that merely briefly noted that the Board in
that case implicitly accepted the VA physician’s compe-
tency and the claimant had failed to show that such
reliance was in error.
Miley was concerned with whether the VA RO timely
mailed the veteran a notice of its decision, thus triggering
the veteran’s time to file an appeal. We stated that the
presumption of regularity could be employed, “in the
absence of evidence to the contrary, [to establish] that
certain ministerial steps were taken in accordance with
the requirements of law.” Miley, 366 F.3d at 1347 (em-
phasis added). We held that the presumption of regulari-
ty applies where “the Board finds that [a] decision notice
10 MATHIS v. MCDONALD
was designated to be mailed along with other documents
that were in fact [timely] mailed. . . . In that setting, the
presumption of regularity may properly be invoked . . . .”
Id. at 1347 (emphasis added). Thus, the holding of that
case was limited to certain ministerial steps, and there
was no discussion of whether it would be appropriate to
apply the presumption to VA medical examiners.
Finally, Butler stated that, the “‘presumption of regu-
larity’ supports official acts of public officers” and holds
that, “[i]n the absence of clear evidence to the contrary,
the doctrine presumes that public officers have properly
discharged their official duties.” 244 F.3d at 1340. It, too,
however, pertained only to the presumption of regularity
as it applied to the VA’s mailing of notices to veterans
under 38 U.S.C. § 5104.
The presumption of regularity, like the hearsay excep-
tion for business records in the Federal Rules of Evidence,
has “at [its] root a showing that the [result] was the
product of a consistent, reliable procedure.” Posey v.
Shinseki, 23 Vet. App. 406, 410 (2010). Thus, the pre-
sumption should be predicated on evidence that gives us
confidence that a particular procedure is carried out
properly and yields reliable results in the ordinary course.
As the Third Circuit has recognized, “[m]ost presumptions
have come into existence primarily because judges have
believed that proof of fact B renders the inference of the
existence of fact A so probable that it is sensible and
timesaving to assume the truth of fact A until the adver-
sary disproves it.” Malack v. BDO Seidman, LLP, 617
F.3d 743, 749 (3d Cir. 2010) (quoting McCormick on
Evidence § 343 (John W. Strong ed. 5th ed. 1999)).
It is no wonder, therefore, that the presumption of
regularity has been applied repeatedly to the govern-
ment’s mailing of certain types of notices. See e.g., Crain
v. Principi, 17 Vet. App. 182, 186 (2003) (“the law pre-
sumes the regularity of the administrative process”);
MATHIS v. MCDONALD 11
Davis v. Principi, 17 Vet. App. 29, 37 (2003) (applying a
“presumption of regularity of mailing”); Schoolman v.
West, 12 Vet. App. 307, 310 (1999) (“‘clear evidence to the
contrary’ is required to rebut the presumption of regulari-
ty, i.e., the presumption that notice was sent in the regu-
lar course of government action”). In such cases, the acts
at issue are typically ministerial, routine, and non-
discretionary. 2
The Veterans Court has displayed caution and hesi-
tance towards expanding the presumption of regularity to
new contexts. In Kyhn v. Shinseki, 26 Vet. App. 371, 374
(2013), for example, the Veterans Court remanded a case
to the Board for it to assess, in the first instance, whether
(1) the VA’s duty to notify a veteran of his upcoming
medical examination was actually fulfilled, or (2) the VA
is entitled to a presumption of regularity in its mailing of
notices of scheduled VA examinations. Id. Thus, though
Rizzo already had established the presumption of compe-
tency and the presumption of regularity had long been
applied to certain VA mailing procedures, the court still
saw a need for a separate evaluation of whether the
presumption was proper with respect to the mailing of
notices to veterans regarding their VA examinations.
Nowhere in the Rizzo line of cases, however, did either the
Veterans Court or this court perform an analysis to verify
that the procedures attending the selection and assign-
2 See Latif v. Obama, 677 F.3d 1175, 1207 (D.C. Cir.
2012) (Tatel, J., dissenting) (finding that “every case
applying the presumption of regularity” has “in common:
actions taken or documents produced within a process
that is generally reliable because it is, for example, trans-
parent, accessible, and often familiar. As a result, courts
have no reason to question the output of such processes in
any given case absent specific evidence of error.”).
12 MATHIS v. MCDONALD
ment of VA examiners are, in fact, regular, reliable, and
consistent.
In fact, Mathis argues that the VA’s procedure for se-
lecting qualified examiners is inherently unreliable
because the VA broadly recommends assigning general-
ists except in unusual, ill-defined cases. The VA Adjudi-
cation Procedures (M21-Manual) states that examinations
routinely performed by specialists include hearing, vision,
dental, and psychiatric examinations, but otherwise
instructs its staff to “[r]equest a specialist examination
only if it is considered essential for rating purposes,” for
example “if an issue is unusually complex[, ] if there are
conflicting opinions or diagnoses that must be reconciled,
or [ ] based on a BVA remand.” VA Adjudication Proce-
dures Manual, M21-1MR, Part III, Subpart iv, ch. 3,
§ A(6) (change date July 30, 2015). Furthermore, a VA
fast letter directed to “All VA Regional Offices and Cen-
ters,” states: “[p]lease note that a specialist is only re-
quired in limited situations . . . . For all other types of
examinations, a generalist clinician may perform the
examination. For example, an office may order a cardiac
examination, but it should not generally request that a
cardiologist (a specialist) conduct it.” Veterans Benefits
Administration Fast Letter 10-32 (September 1, 2010).
Mathis argues that this guidance fails to ensure to a high
degree of certainty that the VA examiner assigned to a
given case is able to provide a “competent medical opin-
ion” in accordance with 38 C.F.R. § 3.159(a)(1). In his
view, a generalist is not competent to provide an expert
opinion on a condition like sarcoidosis absent a showing of
education, training, or experience relevant to such a
condition.
The government attempts to reassure us that the vet-
eran may obtain a specialist’s opinion where the govern-
ment determines that such an opinion is “necessary to
make a decision on the claim,” 38 U.S.C. § 5103A(d). But
the process by which the VA appoints examiners for a
MATHIS v. MCDONALD 13
particular case remains unclear. Without this infor-
mation, we cannot tell whether the procedures in question
are, in fact, regular, reliable, and consistent.
We need not—and cannot—resolve this debate. We
lack jurisdiction to make factual findings on appeal re-
garding the competency of the particular examiner em-
ployed by the VA in this case and are bound by clear
precedent to presume that Dr. Dudek was competent to
render the opinion he did. We note, however, that,
though there may be a fair basis to criticize the Rizzo line
of cases, there exists a practical need for an administrable
rule, given the volume of claims the VA is charged with
processing. Replacing the presumption established by
Rizzo would require a concrete, clear standard for deter-
mining the sufficiency of an examiner’s qualifications to
conduct an examination or provide a medical opinion.
CONCLUSION
The Veterans Court did not err in its interpretation of
our precedent. We, therefore, affirm.
AFFIRMED
NOTE: This disposition is nonprecedential.
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, concurring.
I write separately to state my view that experience
has shown that presuming the competence of individuals
who write medical opinions in veterans cases has pro-
duced results inconsistent with the statute. My conclu-
sion is that the entire court should review the case law
concerning the presumption of competence with the
objective of eliminating it.
The presumption of competence has delegitimized the
process of adjudicating veterans’ entitlement to disability
benefits. Under the presumption, no Board or judicial
review of a VA examiner’s qualifications occurs unless the
2 MATHIS v. MCDONALD
veteran makes a specific objection to the examiner’s
qualifications while the case is before the Board. The
veteran is hobbled in making a specific objection because
the VA does not by default disclose any information about
the examiner’s qualifications other than his or her creden-
tials, such as “MD.” If a veteran asks for an examiner’s
qualifications, the VA will not provide them unless it is
ordered to do so. The Board has at times refused to order
the VA to do so because the veteran has not raised a
specific objection to the examiner’s competence. This
creates a catch-22 situation in which the veteran must
have grounds to object to an examiner’s competence before
the veteran can learn the examiner’s qualifications.
The presumption of competence was created based on
the presumption of regularity, and it was unprecedented
to apply the presumption of regularity to a process such
as determining whether a nurse is qualified to provide an
opinion on a particular issue. This court has held that the
Veterans Court lacks jurisdiction to create such presump-
tions, and so this court should not have upheld the Veter-
ans Court’s creation of a presumption in Rizzo. Applying
the presumption of regularity requires evidence that a
process is regular, and such evidence has not been pre-
sented. Even if the VA’s process for selecting examiners
was “regular” when the presumption was established in
Rizzo, the process has continued to evolve, and the VA
does not always successfully follow its own guidelines for
selecting examiners. The circumstances when this court
established the presumption suggest that these negative
consequences were unanticipated.
Eliminating the presumption will require the VA to
provide the Board with evidence that an examiner “is
qualified through education, training, or experience to
offer medical diagnoses, statements, or opinions” on the
issue that the examiner is testifying about. The VA could
meet this requirement by attaching an examiner’s curric-
MATHIS v. MCDONALD 3
ulum vitae (CV) to her report, and, if necessary, having
her state in her report why she is qualified.
The Panel Opinion implies that in order to overturn
Rizzo, there must first be established a clear standard for
determining whether an examiner is competent. Op. at
13. It is not clear that this is the case. Assuming that
such a standard would be necessary, its development
would be the responsibility of the Board or the Veterans
Court, and not this court.
DISCUSSION
The VA’s adjudicatory process for disability benefits
“is designed to function throughout with a high degree of
informality and solicitude for the claimant.” Henderson v.
Shinseki, 562 U.S. 428, 431 (2011) (citation omitted). The
“system is constructed as the antithesis of an adversarial,
formalistic dispute resolving apparatus.” Forshey v.
Principi, 284 F.3d 1335, 1360 (Fed. Cir. 2002) (Mayer,
C.J., dissenting) (majority overruled by statute). “The
purpose is to ensure that the veteran receives whatever
benefits he is entitled to, not to litigate as though it were
a tort case.” Id.
The VA must assist veterans in obtaining evidence
needed to support disability benefits claims. 38 U.S.C.
§ 5103A(a)(1). At times this includes providing a medical
examination or obtaining a medical opinion. Id. at
§ 5103A(d).
The presumption of competence applies both to VA
examiners who conduct an examination of a veteran
before preparing a report and to VA examiners who only
examine medical records or other evidence before prepar-
ing a report. 1 The presumption also applies to the reports
1 See, e.g., Rizzo v. Shinseki, 580 F.3d 1288, 1292
(Fed. Cir. 2009) (examiners who prepared opinions with-
4 MATHIS v. MCDONALD
themselves. Sickels, 643 F.3d at 1366 (“The argument
that a VA medical examiner’s opinion is inadequate is
sufficiently close to the argument raised in Rizzo that it
should be treated the same.”) 2
Under the presumption, a veteran must set forth spe-
cific reasons why the veteran believes an examiner is not
qualified before the VA has to provide any evidence
regarding the examiner’s qualifications. Bastien v.
Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010). If a
veteran fails specifically object to an examiner’s compe-
out examining veteran were presumed competent); Parks
v. Shinseki, 716 F.3d 581, 583 (Fed. Cir. 2013) (same);
Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)
(same); Johnson v. Shinseki, 440 F. App’x 919, 922 (Fed.
Cir. 2011) (examiner who examined veteran was pre-
sumed competent).
2 Exactly how the presumption of competence ap-
plies to examiners’ reports has not been fully established.
See, e.g., Whitehead v. Shinseki, No. 10-4166, 2012 WL
2054875, at *5 (Vet. App. June 8, 2012) (“Sickels does not,
as the Secretary argues, ‘entitle[ ] [the Board] to presume
the adequacy of the VA medical examiner’s opinion.’
Secretary’s Br. at 17–18. The Board is decidedly not
entitled to presume the adequacy of a VA examination—
that is a question of fact to be determined in each case
where a VA medical examination was provided.”); but see,
e.g., Woods-Calhoun v. McDonald, No. 13-3507, 2015 WL
5449888, at *5 (Vet. App. Sept. 17, 2015) (applying the
presumption of competence in analysis determining
whether a report is adequate); Brown v. McDonald, No.
14-0464, 2015 WL 691200, at *5 (Vet. App. Feb. 19, 2015)
(same); Felix v. Gibson, No. 13-2977, 2014 WL 3609630, at
*1 (Vet. App. July 23, 2014) (same); Irish v. Shinseki, No.
11-1426, 2012 WL 1739712, at *2 (Vet. App. May 17,
2012) (same).
MATHIS v. MCDONALD 5
tence while his case is before the Board, any such chal-
lenge is waived. Parks, 716 F.3d at 586; see also, e.g.,
Nohr v. McDonald, 27 Vet. App. 124, 132 (2014).
The VA Generally Presents No Evidence Regarding an
Examiner’s Qualifications
As the VA is not obligated to provide evidence regard-
ing an examiner’s qualifications, it does not do so. Under
the Adjudication Manual of the Veterans Benefits Admin-
istration, M21-1MR (“M21-1MR” or “VA Manual”), an
examiner who prepares a report includes only her name,
address, credentials (e.g., MD, PA, NP, MA, LCPG, or
LCSW), and her phone, fax, and medical license numbers.
M21-1MR § III.iv.3.D.2.b. 3 Her specialty is provided “if a
specialist examination is required or requested.” 4 Id.
If a veteran seeks information about an examiner’s
qualifications, the VA will not provide such information
unless it is ordered to do so. In Nohr v. McDonald, 27
Vet. App. 124, 128 (2014), a veteran requested an exam-
iner’s CV. The Board denied the request, and the Secre-
tary’s counsel argued before the Veterans Court that the
request was “a fishing expedition.” Id. at 132. 5
3 M21–1MR is available at Department of Veterans
Affairs, KnowVA Knowledge Base (last visited Mar. 28,
2016), http://www.knowva.ebenefits.va.gov.
4 This guideline is not always followed. See, e.g.,
No. 1320853, 2013 WL 4450861, at *2 (Bd. Vet. App. June
27, 2013) (Board requested specialist but it was unclear
whether examiner had a specialty). Under 38 C.F.R.
§ 20.1301, Board decisions such as this one are issued
without titles, as personal identifiers are redacted.
5 See also, e.g., No. 1543733, 2015 WL 7875614, at
*2 (Bd. Vet. App. Oct. 13, 2015); No. 1501503, 2015 WL
1194124, at *7–8 (Bd. Vet. App. Jan. 13, 2015); No.
6 MATHIS v. MCDONALD
The Veterans Court found that the Board erred in
denying the veteran’s request because the veteran had
identified an ambiguous statement in the examiner’s
report that suggested “there may have been some irregu-
larity in the process” of selecting the examiner. Id. at
132. The Veterans Court explained that, under those
circumstances, the Board could not deny the veteran’s
request for a CV. Id. at 133.
In one case, the Board interpreted Nohr as meaning
that a veteran must rebut the presumption of competence
before the veteran is entitled to receive information about
an examiner’s qualifications. No. 1452787, 2014 WL
7740599 at *8 (Bd. Vet. App. Dec. 1, 2014). Distinguish-
ing Nohr, the Board rejected a veteran’s request for an
examiner’s CV because it was made before the examiner
provided her opinion, so there was no evidence “sufficient
. . . to rebut the presumption of administrative regulari-
ty.” Id. at *8–9. Since Nohr, it appears that the Board
has ordered the VA to provide a veteran with an examin-
er’s CV in five cases. 6
1452787, 2014 WL 7740599, at *9 (Bd. Vet. App. Dec. 1,
2014).
This court in Bastien stated that the VA provided an
examiner’s qualifications when a veteran’s wife requested
them. 599 F.3d at 1306. This seems to be a mistake, as
both of the veteran’s appeal briefs state that, despite
requests, the VA did not provide the qualifications. Brief
for Claimant-Appellant at 11, 2009 WL 2610099 and
Reply Brief at 3, 10–11, 2009 WL 4829105. The VA’s brief
does not deny this, and it cites the same “public profile”
the veteran’s wife found for an examiner’s qualifications.
Brief of Respondent-Appellee at 6 n.7 & 12–13, 2009 WL
4248807.
6 See No. 1552016, 2015 WL 10004845 at *12 (Bd.
Vet. App. Dec. 11, 2015); No. 1543733, 2015 WL 7875614
MATHIS v. MCDONALD 7
The VA Manual provides regional offices with guide-
lines for responding to veteran “requests for information
about the examiner’s qualifications.” M21–1MR
§ III.iv.3.D.2.m. The Manual does not suggest that a
regional office should respond to such a request by actual-
ly providing an examiner’s qualifications. Id. If a veteran
submits interrogatories to a regional office, it is instructed
“do not complete and return the document” and “do not
refer it to the examiner.” Id. 7
The Presumption Makes the Competence of VA Examin-
ers Effectively Unreviewable
Since the presumption was created, Board or judicial
review of examiner qualifications rarely occurs. Veterans
regularly make “general” objections to an examiner’s
competence, but not “specific” objections, so the Board
does not review the examiner’s competence. 8 Veterans
likely fail to make “specific” objections because they have
no information regarding an examiner’s qualifications.
at *2 (Bd. Vet. App. Oct. 13, 2015); No. 1538484, 2015 WL
6939522 at *1–2 (Bd. Vet. App. Sept. 9, 2015); No.
1531027, 2015 WL 5212552 at *1 (Bd. Vet. App. July 21,
2015); No. 1501503, 2015 WL 1194124 at *7–8 (Bd. Vet.
App. Jan. 13, 2015).
7 Because of the presumption, the VA does not have
records regarding examiners’ qualifications. Appellee Br.
at 17.
8 E.g., No. 1539156, 2015 WL 6940254 at *4 (Bd.
Vet. App. Sept. 14, 2015); No. 1526395, 2015 WL 4690503,
at *6–7 (Bd. Vet. App. June 22, 2015); No. 1451247, 2014
WL 7502140, at *5–6 (Bd. Vet. App. Nov. 19, 2014); No.
1446634, 2014 WL 6876771, at *5–6 (Bd. Vet. App. Oct.
21, 2014); No. 1444538, 2014 WL 6874328, at *4–5 (Bd.
Vet. App. Oct. 7, 2014); No. 1428938, 2014 WL 3961243,
at *3–4 (Bd. Vet. App. June 26, 2014).
8 MATHIS v. MCDONALD
Even if a veteran sufficiently challenges an examin-
er’s qualifications, the Board has often failed to consider
whether the examiner was qualified. 9
If a veteran does not sufficiently object, the Board on-
ly needs to consider an examiner’s competence when the
examiner unambiguously states in her report that she is
not competent. This occurred in Wise v. Shinseki, 26 Vet.
App. 517 (2014). In Wise, a veteran’s wife sought to show
that the veteran’s service-connected post-traumatic stress
disorder (“PTSD”) had contributed to his heart disease.
Id. at 521. Opposing the claim, the VA submitted the
report of a cardiologist who stated in her report that she
had no training in psychiatry other than a month-long
rotation while in medical school over 25 years earlier, that
she had little experience treating veterans, and that the
majority of the documents she had received for review
were psychiatry-related. Id. at 522. She called herself “a
relative lay person” with regard to psychiatry, but she
opined that the veteran’s PTSD symptoms were not very
severe and were unlikely to have caused his heart disease.
Id. at 522–23.
9 See, e.g., Temples v. McDonald, No. 14-1604, 2015
WL 4169190, at *3 (Vet. App. July 10, 2015) (finding that
a veteran had sufficiently challenged an examiner’s
qualifications to the Board and remanding for the Board
to analyze the examiner’s competence); Learman v.
McDonald, No. 14-0148, 2015 WL 1622162, at *3–5 (Vet.
App. Apr. 13, 2015) (same); Acosta v. Shinseki, No. 12-
3433, 2014 WL 1577773, at *6 (Vet. App. Apr. 22, 2014)
(same); Kanuch v. Shinseki, No. 11-3711, 2013 WL
1200607, at *4–5 (Vet. App. Mar. 26, 2013) (same). In
these cases, although specific objections were raised, the
VA argued before the Veterans Court that the veteran did
not specifically object before the Board and had waived
the issue. Id.
MATHIS v. MCDONALD 9
At the Veterans Court, the veteran challenged the
Board’s decision to rely on the cardiologist’s opinion. Id.
at 524. The Veterans Court found that the presumption
of competence did not attach when “evidence of record
creat[ed] the appearance of irregularity.” Id. at 526–28.
In contrast, a merely ambiguous disclaimer of compe-
tence will not prevent challenges to an examiner’s compe-
tence from being waived when they are not raised before
the Board. Johnson v. McDonald, No. 14-1587, 2015 WL
4075155, *7 (Vet. App. July 6, 2015).
Under the Presumption, the Board Cannot Fairly Weigh
the Probative Value of an Examiner’s Report
That an examiner is qualified to provide a report
should be a “threshold consideration” before her report is
considered by the Board. Nieves-Rodriguez v. Peake, 22
Vet. App. 295, 304 (2008). While “most of the probative
value of a medical opinion comes from its reasoning,” id.,
an examiner’s qualifications should not be disregarded.
The weight accorded to an examiner’s report should
depend in part on the examiner’s knowledge and experi-
ence, including whether the examiner has “specific exper-
tise in the relevant specialty.” Itliong v. Shinseki, No. 09-
0886, 2011 WL 4485886, at *2 (Vet. App. Sept. 29, 2011);
see also, e.g., Black v. Brown, 10 Vet. App. 279, 284
(1997); No. 1452787, 2014 WL 7740599, at *12 (Bd. Vet.
App. Dec. 1, 2014).
When private examiners provide opinions on behalf of
veterans, the Board is “unable to assess [their] experience
or qualifications to render an opinion” when they do not
include information regarding their specialty or a CV.
No. 1512074, 2015 WL 2161715, at *16 (Bd. Vet. App.
Mar. 20, 2015). See also, e.g., No. 9919708, 1999 WL
33869596, at *1 (Bd. Vet. App. July 19, 1999) (noting that,
without a CV or other evidence showing a veteran’s
physician’s qualifications, “the Board is unable to deter-
10 MATHIS v. MCDONALD
mine the degree of weight or probative value that may be
attached to [her] opinion.”).
VA guidelines for responding to complaints that an
examiner was unqualified state that “where an examiner
is basically competent, matters like specialty, Board
certification, experience and other related considerations
will merely be considerations in determining probative
value of the examination or opinion.” M21-1MR
§ III.iv.3.D.2.m. In reality, these factors will almost never
be considered in determining the probative value of a VA
examiner’s opinion.
Determining whether an opinion is adequate and
weighing its probative value solely on its analysis without
knowledge of its author’s qualifications can lead to absurd
results. Because the analysis turns on an author’s skill in
opinion-writing rather than her skill in medicine, a
skilled opinion-writer could write persuasive opinions
about issues she is entirely unqualified to opine about.
Veterans have no opportunity to confront VA examin-
ers, such as through cross-examination, so “in many cases
the most effective way of countering a questionable opin-
ion [is] to offer a contrary opinion with more support in
the medical literature or from other medical experts.”
Gambill v. Shinseki, 576 F.3d 1307, 1318–19 (Fed. Cir.
2009) (Bryson, J., concurring). A veteran’s ability to
advance a contrary opinion is fettered when the experi-
ence, educational background, and training of the exam-
iner are unknown. Even if a veteran finds the preeminent
expert on her specific disability to provide an opinion
supporting her claim, because the record is silent as to the
VA examiner’s qualifications, the Board or any court
rarely has the ability to weigh their relative qualifications
in evaluating their competing opinions.
For example, in D’Auria v. McDonald, a veteran ar-
gued that the Board erred in according more weight to a
VA examiner’s opinion than the veteran’s physician’s
MATHIS v. MCDONALD 11
opinion. No. 14-3224, 2015 WL 5307462, at *2 (Vet. App.
Sept. 11, 2015). At the Veterans Court, the pro se veter-
an’s appeal brief said “[the veteran’s physician’s] creden-
tials are impeccable. What credentials and specialty does
your VA examiner hold?” Id. The Court explained that
VA examiners are presumed competent, the veteran had
not challenged the examiner’s qualifications at the Board,
and so the Board did not have to evaluate his or her
qualifications before relying on his or her report. Id.
Occasionally, the Board still weighs the probative
value of competing reports on the basis of credentials. In
one recent case, the Board afforded more probative value
to the veteran’s physician’s opinion, explaining that “a
relevant difference in the level of expertise and profes-
sional credentials of the two examiners [existed], as the
VA examiner was a nurse practitioner and the private
examiner was a licensed physician with an extensive CV
showing years of experience in occupational and environ-
mental medicine, [including] the types of workplace
injuries from which the Veteran alleged his in-service
right knee trauma originated.” No. 1504782, 2015 WL
1600923, at *5 (Bd. Vet. App. Feb. 2, 2015). But the
presumption of competence discourages the Board from
finding a VA examiner anything less than perfectly com-
petent. Parks, 716 F.3d at 585 (the presumption applies
to nurse practitioners); see also, e.g., No. 1549456, 2015
WL 9698285 at *1 (Bd. Vet. App. Nov. 23, 2015).
The Board eschews wrongly awarding benefits by as-
signing undue weight to favorable medical opinions. No.
1452787, 2014 WL 7740599, at *5 (Bd. Vet. App. Dec. 1,
2014). It should not assign undue weight to unfavorable
opinions either. It cannot fairly weigh an opinion while
knowing almost nothing about its author’s qualifications.
The Presumption Creates a Due Process Problem
The VA’s duty to assist veterans includes providing an
examination or report by a competent examiner, when
12 MATHIS v. MCDONALD
needed. 38 U.S.C. § 5103A. As a result of the presump-
tion of competence, the burden to object to an examiner’s
competence is placed on the veteran, but the veteran is
hindered in doing so.
A veteran’s interest in disability benefits is protected
by the Due Process Clause. Cushman v. Shinseki, 576
F.3d 1290, 1298 (Fed. Cir. 2009). The presumption of
competence increases the risk of an erroneous deprivation
of that interest. See Mathews v. Eldridge, 424 U.S. 319,
335 (1976). Removing the presumption would help safe-
guard a veteran’s right to an opinion or examination
prepared or performed by a qualified examiner, and
create only a minimal burden on the VA to provide evi-
dence regarding the qualifications of its examiners.
“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) (Dyk, J., concurring).
“If the Constitution provides no protection against the
occurrence of such breaches, then the paternalistic inter-
est in protecting the veteran is an illusory and meaning-
less assurance.” Id.
The Interests the Presumption Serves Do Not Outweigh
Its Disadvantages
The presumption serves to eliminate the VA’s burden
to produce evidence and reduce remands. Parks, 716 F.3d
at 585. Without a presumption, the VA would need to
provide the Board with evidence that an examiner satis-
fies the 38 C.F.R. § 3.159 requirement of being “qualified
through education, training, or experience to offer medical
diagnoses, statements, or opinions.” Yet, simply attach-
ing an examiner’s CV to his report would reveal the
examiner’s education, training, and experience. Attach-
ing a CV to his report is a task an examiner can easily
handle.
MATHIS v. MCDONALD 13
Because the VA usually selects generalist examiners,
an examiner’s CV usually will not show that the examiner
has any expertise in the subject of her report. 10 If a CV
reveals that an examiner lacks such expertise, she can
also explain in her report why she is qualified. Including
such a statement would not be difficult for examiners. If
an examiner prepares a statement describing why she is
qualified to opine on cardiac issues, for example, she can
likely reuse it the next time she opines on cardiac issues.
It appears that this court’s Rizzo decision led the VA
to change a practice of usually attaching an examiner’s
CV to his report. Before Rizzo, which issued in September
2009, it appears that Board orders remanding cases for
medical examinations had instructed an examiner to
append a CV to his report only about four times. 11 But
after Rizzo, between March 2010 and September 2011,
the Board included such an instruction in over two hun-
10 At argument, the Secretary’s attorney stated “[i]n
this case, [the VA examiner] was a general practitioner.
Providing a CV would demonstrate that. . . . What Mr.
Mathis [seeks] is something tailored to every single case,
saying [the examiner’s] exact experience with lung condi-
tions, for instance, or heart conditions, or whatever it is.
A CV is not going to cut the muster in this situation.”
Recording at 22:16, available at http://www.cafc.uscourts.
gov/oral-argument-recordings/search/audio.html.
For discussion on the VA’s use of generalist examin-
ers, see infra at page 17.
11 No 0802829, 2008 WL 4320116, at *2 (Bd. Vet.
App. Jan. 25, 2008); No. 0432514, 2004 WL 3311593, at *1
(Bd. Vet. App. Dec. 8, 2004); No. 0108160, 2001 WL
34585997, at *6 (Bd. Vet. App. Mar. 20, 2001); No.
0105152, 2001 WL 34582992, at *3 (Bd. Vet. App. Feb. 20,
2001).
14 MATHIS v. MCDONALD
dred decisions. 12 This significant increase suggests both
that a change had occurred in the frequency with which
the VA attached CVs to examiners’ reports and that the
Board preferred having examiners’ CVs. A requirement
that examiners attach their CVs to their reports would
not create an undue administrative burden, particularly if
examiners typically attached CVs to their reports before
the presumption was created.
Since September 8, 2011, it appears that the Board
has requested in a remand order that an examiner in-
clude her CV only once, in No. 1222819, 2012 WL
3271702, at *3 (Bd. Vet. App. June 29, 2012). It appears
that the Board stopped trying to order the VA to provide
examiners’ CVs because doing so was futile. Numerous
Board decisions state that no CV was attached to an
examination report, even though the Board had requested
one. 13
12 E.g., No. 1133177, 2011 WL 5316250, at *5 (Bd.
Vet. App. Sept. 8, 2011); No. 1132969, 2011 WL 5316041,
at *12 (Bd. Vet. App. Sept. 7, 2011); No. 1101423, 2011
WL 751267, at *4 (Bd. Vet. App. Jan. 12, 2011); No.
1107166, 2011 WL 1355701, at *5 (Bd. Vet. App. Feb. 23,
2011); No. 1037779, 2010 WL 5378203, at *2 (Bd. Vet.
App. Oct. 6, 2010); No. 1014091, 2010 WL 2478922, at *7
(Bd. Vet. App. Apr. 14, 2010); No. 1017678, 2010 WL
2807490, at *7 (Bd. Vet. App. May 12, 2010); No. 1009397,
2010 WL 1941350, at *9 (Bd. Vet. App. Mar. 12, 2010).
13 E.g., No. 1443791, 2014 WL 6873578, at *9 (Bd.
Vet. App. Oct. 1, 2014); No. 1336907, 2013 WL 6991931,
at *2 (Bd. Vet. App. Nov. 13, 2013); No. 1320853, 2013 WL
4450861, at *2 (Bd. Vet. App. June 27, 2013); No.
1243635, 2012 WL 7016213, at *6 (Bd. Vet. App. Dec. 20,
2012); No. 1217374, 2012 WL 2881745, at *2 (Bd. Vet.
App. May 15, 2012); No. 1137554, 2011 WL 6043315, at *2
(Bd. Vet. App. Oct. 5, 2011); No. 1137348, 2011 WL
MATHIS v. MCDONALD 15
Removing the presumption of competence will assist
veterans in challenging the competence of examiners and
reduce the risk of unqualified examiners providing opin-
ions. Unqualified examiners are less likely to provide
accurate opinions. Veterans are harmed when their
claims are improperly rejected, and the public fisc is
harmed when veterans’ claims are improperly granted.
Establishing Competency Is Not a Ministerial Act
This court in Rizzo should not have applied the pre-
sumption of regularity to the VA’s process of selecting
examiners. The presumption of regularity is usually
applied to ministerial acts such as mailing notices. Miley
v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). Mailing
a notice is very different from selecting an examiner:
mailing is administrative but determining whether a
specific nurse is qualified to provide an opinion on a
particular issue is not. As the Panel Opinion states,
“Mathis’s presumption of regularity argument in particu-
lar presents some legitimate concerns.” Op. at 9. No case
Rizzo cited when applying the presumption of regularity
to medical examiners provides “a solid foundation” for
Rizzo’s holding. Id.
Before a presumption of regularity was applied to the
VA’s process for selecting examiners, there should have
been “a showing, by affidavit or otherwise,” that the VA’s
5325231, at *2 (Bd. Vet. App. Sept. 30, 2011); No.
1134614, 2011 WL 5322294, at *3 (Bd. Vet. App. Sept. 15,
2011); No. 1134415, 2011 WL 5322094, at *2 (Bd. Vet.
App. Sept. 14, 2011); No. 1129400, 2011 WL 4890482, at
*2 (Bd. Vet. App. Aug. 9, 2011); No. 1122079, 2011 WL
3507772, at *1 (Bd. Vet. App. June 7, 2011). But see No.
1300336, 2013 WL 1093814, at *2 (Bd. Vet. App. Jan. 4,
2013) (noting that a CV was added to a report to comply
with remand instructions).
16 MATHIS v. MCDONALD
process for selecting examiners was “regular.” Kyhn v.
Shinseki, 716 F.3d 572, 579 (Fed. Cir. 2013) (Lourie, J.,
dissenting); see also, e.g., Echevarria-North v. Shinseki,
437 F. App’x 941, 946 (Fed. Cir. 2011). In Rizzo, neither
this court’s decision nor the Veterans Court’s decision
cited evidence about the VA’s process. 580 F.3d 1288 at
1292; Rizzo v. Peake, No. 07-0123, 2008 WL 4140421, at
*2 (Vet. App. Aug. 26, 2008).
Further, it appears that creating a presumption of
competence for VA examiners was outside the Veterans
Courts’ jurisdiction, and so this court should not have
upheld the Veterans Court’s creation of one in Rizzo. In
Kyhn, this court held that the Veterans Court lacked
jurisdiction to create a presumption of regularity for
certain notices, as this required factfinding outside the
record to determine that a process was regular. 716 F.3d
at 578. Here, the presumption was apparently estab-
lished based on an implicit factfinding of regularity.
The Process by Which the VA Chooses Examiners is
Largely Unknown
Apparently only the VA and its outside contractors
know how they select examiners. The VA Manual says
very little about how examiners are chosen to provide
examinations or deemed qualified. One section states
that “[t]he choice of examiners is up to the VA medical
facility conducting the examination,” unless it is neces-
sary that a specialist be used. M21-1MR § III.iv.3.A.6.d.
A section on “Ensuring Examiners Are Qualified”
states that “VA medical facilities (or the medical exami-
nation contractor) are responsible for ensuring that
examiners are adequately qualified.” Id. at
§ III.iv.3.D.2.b. It states that “Veterans Service Center
(VSC) employees are not expected to routinely review the
credentials of clinical personnel to determine the accepta-
bility of their reports, unless there is contradictory evi-
dence of record.” Id. (Emphasis original). It appears
MATHIS v. MCDONALD 17
that, currently and when the Rizzo decision issued, the
choice of examiners and review of their qualifications is
often performed by outside contractors, such as QTC
Medical Services. 14 To the extent aspects of the VA’s
process for selecting examiners are known, those aspects
do not suggest that it is a regular process.
Since the Presumption was Created, the VA Has Empha-
sized the Use of Non-Specialist Examiners
VA usually selects non-specialist examiners to per-
form examinations. M21-1MR §§ III.iv.3.A.1.g, h. Except
for vision, hearing, dental, and psychiatric examinations,
specialists perform medical exams only in “in unusual
cases, or as requested by a Board of Veterans’ Appeals
(BVA) remand.” Id. Also, an initial diagnosis of traumat-
ic brain injury must be made by one of the following
specialists: physiatrists, psychiatrists, neurosurgeons, or
neurologists. Id. at § III.iv.3.D.2.h.
While certain actors in the disability claim adjudica-
tion process may request a specialist examiner, the choice
of examiners is “up to the VA medical facility conducting
the examination,” unless a remand from the Board specif-
ically states that the examiner must be a “Board-certified
specialist in . . . ” or a “specialist who is Board qualified.”
Id. at § III.iv.3.A(6)(d). “In the absence of a [Board]
14 Department of Veterans Affairs Audit of VA’s Ef-
forts to Provide Timely Compensation and Pension Medi-
cal Examinations, VA Office of Inspector General (Mar.
17, 2010), http://www.va.gov/oig/52/reports/2010/VAOIG-
09-02135-107.pdf; Wesley Brown, Local veteran says VA
contractor examinations not thorough enough, Augusta Chron.,
(Aug. 17, 2014), http://chronicle.augusta.com/latest-
news/2014-08-17/local-veteran-says-va-contractor-
examinations-not-thorough-enough.
18 MATHIS v. MCDONALD
remand, [regional offices] may not designate qualification
requirements for a specialist examination.” Id. 15
As the Panel Opinion notes, in September 2010, one
year after Rizzo, the VA issued a Fast Letter emphasizing
the distinction between “specialist” and “specialty” exam-
inations. 16 Op. at 12. The letter explained that, while a
regional office could request a “specialty examination” it
should generally not even request a “specialist examina-
tion.”
The VA’s emphasis on using generalist examiners is
concerning. While a generalist healthcare provider may
have experience treating patients with a wide variety of
ailments, and may be similarly qualified to treat patients
as a specialist is, the opinions examiners are asked to
provide are often more complicated than mere diagnosis
or treatment. For example, the questions the examiner
needed to answer in this case included whether Mr.
Mathis’s sarcoidosis occurred as a result of his military
15 The VA has different guidelines for requesting
opinions to be prepared without examining the veteran.
M21-1MR § III.iv.3.A.7.a.
16 A specialty examination focuses on the disabilities
that are specifically at issue in a veteran’s claim, as
compared to a general medical examination which in-
volves screening all body systems. A specialist examina-
tion is any examination that is conducted by a clinician
who specializes in a particular field. M21-1MR
§§ III.iv.3.A.1.f, g, h.
The VA Manual does not indicate that someone can
ever request that an opinion be prepared by a specialist,
when the opinion is prepared without an examination of
the veteran. The VA Manual distinguishes between
examinations and opinions, and there is no discussion of
requesting specialist medical opinions.
MATHIS v. MCDONALD 19
service, if it began while he was in service, or if symptoms
of it had occurred within one year of his service. 17
Particularly when an examiner is presented with is-
sues such as what caused a disease or when it began, the
examiner’s opinions are necessarily somewhat specula-
tive, even when the examiner is an expert on that disease.
Specialist doctors exist because the body of medical
knowledge is larger than any individual doctor can learn,
and it continues to grow as new research is conducted. No
doctor can read every journal in every specialty.
In some circumstances, specialist examiners are pref-
erable. A specialist doctor has years of additional train-
ing in her specialty beyond that of a generalist doctor, and
will often also have more experience in her specialty. The
Board sometimes requests examiners with specific exper-
tise, although the VA considers itself free to disregard
17 See also, e.g., Rizzo, 580 F.3d at 1289 (whether a
veteran’s radiation exposure during military service
caused his eye conditions); Parks, 716 F.3d at 583 (wheth-
er a veteran’s exposure to three chemical warfare agents
as part of a classified project were related to his diseases);
Bastien, 599 F.3d at 1303–04 (whether a veteran’s partic-
ipation in military experiments involving radiation
caused his diseases); D’Auria, 2015 WL 5307462 at *1
(whether a veteran’s exposure to asbestos and smoke as
an Air Force fire inspector caused his diseases); Temples,
2015 WL 4169190, at *3 (whether a veteran’s exposure to
Agent Orange caused his diseases); Johnson, 2015 WL
4075155, at *2–3 (whether a veteran’s service-connected
hip disabilities made him unable to find gainful employ-
ment).
20 MATHIS v. MCDONALD
such requests unless they specifically require a board-
certified or “board qualified” examiner. 18
Medicine is like law. While a generalist lawyer may
be qualified to take on a wide variety of cases, if someone
has a narrow question about a certain area of the law and
it is important that she receives a good answer, it may be
preferable for her to ask a lawyer specialized in that area
with at least a few years of experience. No lawyer can be
an expert in every area of the law.
In the first cases establishing the presumption of
competence, this court appears to have found it important
that the examiners had expertise in the area they testi-
fied about. In Rizzo, this court observed that the VA
examiner, who had been asked to opine on radiation, was
“a medical doctor[,] serves as VA’s Chief Officer of Public
Health and Environmental Hazards[, and] represented
VA’s Under Secretary for Health, whose opinion the
Board must consider in claims based on exposure to
ionizing radiation” under a regulation. 580 F.3d at 1291.
In Bastien, where the issue was whether radiation expo-
sure caused blood cancer and lymphoma, the VA submit-
ted reports from “Dr. Mather, [the VA’s] Chief Public
Health and Environmental Hazards Officer,” and “Dr.
Pasquale, a hematologist, who was also an associate
professor of medicine at Albany Medical College.” 599
F.3d at 1304. It seems that the presumption as applied in
those cases was a presumption that a doctor with exper-
18 See supra, p. 17. Examples of cases where the
Board requested a specialist but the request was appar-
ently disregarded by the VA include Kanuch v. Shinseki,
No. 11-3711, 2013 WL 1200607, at *2 (Vet. App. Mar. 26,
2013); No. 1336907, 2013 WL 6991931, at *2 (Bd. Vet.
App. Nov. 13, 2013); and No. 1320853, 2013 WL 4450861
at *2 (Bd. Vet. App. June 27, 2013).
MATHIS v. MCDONALD 21
tise in a certain topic was qualified to opine on that topic.
This court has stated that “one part of the presumption of
regularity is that the person selected by the VA is quali-
fied by training, education, or experience in the particular
field.” Parks, 716 F.3d at 585 (emphasis added).
As the presumption has been interpreted and applied,
however, it has come to mean that any healthcare profes-
sional is competent to opine on any disease or condition,
unless it is a vision, hearing, dental, or psychiatric prob-
lem, or is an initial examination for traumatic brain
injury. As VA examiners usually do not have expertise in
the field they opine about, a presumption of competence
should not apply.
Since the Presumption was Created, the VA Removed Its
Requirement that All Reports Needed to be Signed by a
Doctor
When the presumption was created, the VA Manual
stated that “[a]ll original examination reports must be
signed by a physician, unless the examination was per-
formed by a clinical or counseling psychologist, dentist,
audiologist, or optometrist.” M21-1MR § III.iv.3.D.19.a
(2007). Reports of examinations conducted by “qualified
medical examiners other than physicians” were only
acceptable if they were signed by a physician. Id.
Now, the corresponding provision states that “[a]ll ex-
amination reports must be signed by the examining
health care provider.” M21-1MR § III.iv.3.D.2.a. No
doctor’s signature is required. It appears that the only
time that a doctor’s co-signature is required for examina-
tions performed by non-doctors is when, for initial mental
disorder examinations, certain specified examiners per-
form an examination under the supervision of a board-
certified or board-eligible psychiatrist or licensed doctor-
ate-level psychologist. Id. at § III.iv.3.D.2.f. This change
was announced in September 2010 in Fast Letter 10-32.
22 MATHIS v. MCDONALD
Doctors undergo significantly more education, train-
ing, and experience before they are licensed to practice
than most other healthcare professionals. As a result,
this change represents a significant decrease in the min-
imum qualifications needed for the examiner who ulti-
mately approves an examination report after Rizzo.
A Recent Incident Demonstrates that the VA’s Process for
Selecting Examiners is Not Regular
The VA’s process for determining which examiners
conduct examinations does not always result in a compe-
tent examiner being selected. 19 Initial examinations for
traumatic brain injury are treated differently than most
other diseases, and must be performed by only certain
types of doctors. M21-1MR § III.iv.3.D.2.h. The Minne-
apolis VA admitted in the fall of 2015, however, that since
2010 many examinations for traumatic brain injury had
been conducted by unqualified examiners. 20 The VA has
denied Freedom of Information Act requests seeking the
19 See, e.g., Minnesota lawmaker calls for inquiry in-
to VA brain exam, Wash. Times (Sept. 10, 2015), http://
www.washingtontimes.com/news/2015/sep/10/minnesota-
lawmaker-calls-for-inquiry-into-va-brain/; A.J. Lagoe &
Steve Eckert, VA fighting release of names tied to brain
injury exams, KARE 11 (Minn.), (Sept. 8, 2015), http://
legacy.kare11.com/story/news/investigations/2015/09/08/
va-fighting-release--names-tied--brain-injury-exams/
71900484/; Steve Eckert and A.J. Lagoe, Unqualified
doctors performed brain injury exams at Mpls VA Medical
Center, Kare 11 (Minn.), http://legacy.kare11.com/story/
news/investigations/2015/08/05/unqualified-medical-
personnel-performing-exams-mpls-va-medical-center-
traumatic-brain-injury/31168581/.
20 Id.
MATHIS v. MCDONALD 23
qualifications of examiners who performed traumatic
brain injury exams. 21
To receive disability benefits, a veteran generally
must show that he has been diagnosed with a current
disability, that he suffered an in-service incurrence or
aggravation of a disease or injury, and that there is a
causal link, or nexus, between his present disability and
the disease or injury incurred or aggravated during
military service. Leonhardt v. Shinseki, 463 F. App’x 942,
945 (Fed. Cir. 2012). VA examiners perform examina-
tions that may be directed to any or all of these factors.
The cited news articles describe veterans who suffered
head injuries during service. The VA examiners were
tasked with determining whether a diagnosis of traumatic
brain injury was appropriate. As noted, the VA Manual
requires certain specialized doctors to have performed
these diagnosis examinations, but such doctors were not
used. The VA failed to ensure that the examinations were
performed by qualified doctors starting in 2010, after
Rizzo issued in 2009. This suggests that requiring the VA
to present the qualifications of its examiners for Board
review is appropriate, to ensure that the VA is selecting
qualified examiners for all examinations.
CONCLUSION
Reversing precedent requires justification beyond a
belief that the precedent was wrongly decided. Kimble v.
Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015). A
court may overrule its own decisions “when they are
‘unworkable or are badly reasoned,’ when ‘the theoretical
underpinnings of those decisions are called into serious
question,’ when the decisions have become ‘irreconcilable’
with intervening developments in ‘competing legal doc-
trines or policies,’ or when they are otherwise ‘a positive
21 Id.
24 MATHIS v. MCDONALD
detriment to coherence and consistency in the law.’”
Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct.
2398, 2425 (2014) (Thomas, J., concurring) (citations
omitted).
Overruling precedent is “particularly appropriate”
when “the precedent consists of a judge-made rule that
was recently adopted to improve the operation of the
courts, and experience has pointed up the precedent’s
shortcomings,” and where “subsequent legal develop-
ments have unmoored the case from its doctrinal an-
chors.” In re One2One Commc’ns, LLC, 805 F.3d 428, 449
(3d Cir. 2015) (citations omitted).
These circumstances are met in this case. Having
taken full advantage of the presumption, the VA no longer
provides any information about its examiners’ qualifica-
tions. A veteran must convince the Board or the Veterans
Court to order the VA to produce such information.
Before the Board will consider whether an examiner was
qualified, the veteran must sufficiently object to the
examiner’s qualifications. But a veteran has difficulty
objecting without knowledge of an examiner’s qualifica-
tions.
This outcome is absurd. “The government’s interest
in veterans cases is not that it shall win, but rather that
justice shall be done.” Barrett v. Nicholson, 466 F.3d
1038, 1044 (Fed. Cir. 2006). The presumption makes the
choice of examiners and their qualifications effectively
unreviewable, and bars consideration of an examiner’s
qualifications in weighing the persuasive value of her
testimony. The burden on the VA would be minimal if we
restore the status quo before the presumption of compe-
tence was established. A veteran’s need for a CV certain-
ly outweighs the burden of routinely attaching it.
A presumption based on no evidence is an assump-
tion. Assuming that every examiner is competent stacks
the deck against a veteran seeking to challenge an ad-
MATHIS v. MCDONALD 25
verse medical opinion. We should overturn the “assump-
tion of competence.” The VA should provide evidence
regarding the qualifications of the examiners on whose
opinions it relies when denying veterans benefits.