Monday, March 11, 2013

Beasley v. Shinseki (VA’s duty to obtain medical opinion)

Beasley v. Shinseki, docket no. 2012-7029 (Fed. Cir. Mar. 11, 2013)

The U.S. Court of Appeals for the Federal Circuit reaffirmed that it has jurisdiction to review denials of petitions for writs of mandamus from the U.S. Court of Appeals for Veterans Claims (CAVC). The question on the merits of the case was whether VA’s duty to assist required VA to obtain a medical opinion from the veteran’s VA physician based on evidence that had not been submitted to the Board. The Federal Circuit held that VA’s duty to assist is not an “open-ended obligation . . . to provide a medical examination or opinion upon demand.”

In a spirited dissent, Judge Newman frames the issue as whether VA “can prohibit a veteran’s VA physician from reviewing the veteran’s evidence of service connection, lest the physician’s opinion present a ‘conflict of interest.’” Judge Newman states that “[t]his cannot be what Congress intended by the ‘duty to assist’” and asserts that the petition for mandamus should be granted.

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