Wise v. Shinseki, 26 Vet.App. 517 (Apr. 16, 2014)
PRESUMPTION OF REGULARITY, COMPETENCY OF VA MEDICAL EXAMINER
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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