Wednesday, September 3, 2014

Wise v. Shinseki

Wise v. Shinseki, 26 Vet.App. 517 (Apr. 16, 2014)
The presumption of regularity with regards to the competency of a VA medical examiner does not attach where the medical opinion itself demonstrates irregularity.

Veteran’s surviving spouse appealed BVA denial of DIC benefits, arguing that the Board relied on an inadequate medical opinion. The VA medical examiner had been asked to provide an opinion as to the relationship between the deceased veteran’s service-connected PTSD and the heart condition that caused his death. The VA cardiologist stated that she had “no formal training” in psychiatry, had “pre[]cious little experience treating veterans,” and characterized her “perspective of psychiatry” as that of a “relative lay person[].” The VA examiner also complained about the lack of complete records between 2000 and the veteran’s death in 2008, but made certain assumptions about his treatment. In light of his age and condition, the examiner stated that there was “no need or logical reason to invoke PTSD as a contributing factor” to his heart condition, and thus opined that it was “‘not at all likely’ that PTSD aggravated the veteran’s heart disease or hastened his death.” The Board relied on this opinion to deny benefits, explaining that it favored this opinion over the positive medical evidence submitted by the claimant because the VA opinion was based on “known risk factors for heart disease,” whereas the claimant’s evidence (medical studies and favorable medical opinion letters) were based on “the not yet accepted notion that PTSD causes heart disease.”

On appeal, the CAVC found that the presumption of regularity that would normally attach to VA’s selection of a medical profession did not attach in this case, where “VA’s process of selecting a medical professional appears irregular,” particularly since the examiner herself called her own qualifications into question. The Court noted that the claimant did not challenge the examiner’s qualifications when the case was still at the agency level, and that “absent such a challenge, the Board is ordinarily not obligated to discuss an examiner’s competence.” However, the Court found that because the opinion itself “expressly raised the issue of [the doctor’s] competence, [] it would be unreasonable to allow the Board to ignore this explicit denial of expertise.” The Court held that where a medical examiner admits that she lacks the required expertise to provide an opinion, “the opinion itself creates the appearance of irregularity” and the Board must therefore address the medical professional’s competence before relying on his or her opinion.” Failure to do so renders the Board’s reasons or bases inadequate.

The Court also found additional inadequacies in the medical opinion. First, the examiner based her negative nexus opinion on medical records that “significantly predated the veteran’s death and shows a clean bill of cardiovascular health.” Second, the examiner based her conclusion that PTSD is not a widely accepted cardiac risk on a 2000 article that she used “to refute” a 2007 article submitted by the claimant. Neither the examiner nor the Board discussed the more recent article – or explained why a 2000 article could refute a 2007 article.

The Court also found that the Board’s conclusion that VA satisfied its duty to assist was inadequate because VA failed to obtain medical records that had been identified by the VA medical examiner. In addition, the Court found the Board’s reasons or bases inadequate for “failing to adequately account for the potentially favorable medical literature of record. The Court found that the Board’s rejection of this literature “because it espoused a medical principle that was not yet ‘generally accepted’ in the scientific community[] ran afoul of the benefit of the doubt rule.”

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