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Mind Reading and the Art of Drafting Medical Opinions in Veterans Benefits Claims

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Notes

  1. Ridgway, VJRA 20 Years Later, supra note 2, at 272–73 (discussing Colvin v. Derwinski (1991)).

  2. Cases and other authorities in Veterans law usually refer to “physicians” or “doctors” in discussing evidentiary issues. For consistency, this article is generally phrased in terms of the role of “psychologists.” However, essentially everything discussed herein applies equally to other types of mental health professionals and to physicians generally.

  3. Ridgway, VJRA 20 Years Later, supra note 2, at 268–70.

  4. Nieves-Rodriguez v. Peake (2008b; citing Fed. R. Evid. 702).

  5. See 38 USC § 5103A (2002); see also McLendon v. Nicholson (2006; noting that there is a “very low threshold” to trigger the duty to assist). Once the Secretary seeks a medical opinion, he generally cannot deny a claim until there is an adequate medical examination in the record. See Daves v. Nicholson (2007b; “Due process requires the Secretary to notify the claimant prior to the adjudication of the claim of his inability to obtain evidence he has undertaken to obtain, so that the claimant has a fair and reasonable opportunity to try and secure it or procure alternative evidence at a time when such information will be most useful to the adjudicator.”); Sanders v. Principi (2003; highlighting the veteran-friendly nature of the VA adjudication process, and stating that, when a hearing examiner promised a medical examination but VA did not provide one, the Board must explain in its decision why it “would not or need not provide the promised examination”).

  6. Dennis v. Nicholson (1007; “The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.” (citing Abernathy v. Principi (1992))).

  7. See Ridgway, VJRA 20 Years Later, supra note 2, at 268–69.

  8. This does not include appeals to the Federal Circuit or the Supreme Court. The Federal Circuit’s limited jurisdiction does not permit it to review factual disputes or the application of the law to the facts, see 38 USC § 7292(d)(2) (2002), and certiori review by the Supreme Court is discretionary, extremely rare, and not granted for mundane factual appeals.

  9. These regional offices employ 15,000 adjudicators. See Department of Veterans Affairs (2010). Their operating budget in fiscal year 2011 totaled $2.1 billion (Department of Veterans Affairs, 2011).

  10. See Daniel Harris (2007). This survey was taken in concert with a report prepared by the Center for Naval Analysis, see infra note 141, for the Veterans Benefits Commission, see infra note 140, with the full cooperation of VA. For a detailed description of VA’s evidence gathering procedures, see Institute of Medicine of the National Academies (2007).

  11. Id.

  12. See Riley, supra note 18, at 85–86.

  13. See Parker, supra note 20, at 218.

  14. See supra note 9 and accompanying text.

  15. See Paralyzed Veterans of America et al. (2011) available at http://www.independentbudget.org/ (discussing the workload and staffing problems at the BVA); see also Board of Veterans’ Appeals Adjudication Process and the Appeals Management Center, Hearing Before the Subcomm. on Disability Assistance and Memorial Affairs, House Comm. on Veterans’ Affairs, 110th Congress (2007) (statement of James P. Terry, Chairman, Bd. of Veterans’ Appeals), available at http://archives.veterans.house.gov/hearings/hearing.aspx?NewsID=2042 (testifying that, “over the course of the year the [BVA]’s fair share standards call for our attorneys to complete a total of 156 timely decisions of high quality, and for each of our line Judges to complete and sign 752 decisions”).

  16. See Ridgway, VJRA 20 Years Later, supra note 2, at 285–86.

  17. 38 USC § 5103A(b) (2002).

  18. One exception was recently created by Savage v. Shinseki (2011), which required VA to seek clarification of a private medical examination that omits information if “the missing information is relevant, factual, and objective—that is, not a matter of opinion—and where the missing evidence bears greatly on the probative value of the private examination report.” Id. at 270. However, the phrasing of Savage is narrow on its face, and it remains to be seen what impact it will have. The Federal Circuit has rejected the argument that the Secretary has a duty to sua sponte provide a copy of the veteran’s claims file to his treating physician. See Walch v. Shinseki (2009).

  19. See Ridgway, Lessons the Veterans Benefits System Must Learn, supra note 9, at 415 (calculating that the Secretary obtains VA medical opinions in more than 75% of cases).

  20. See Ridgway, Lessons the Veterans Benefits System Must Learn, supra note 9. Although the good intentions and the professionalism of those that work for VA are not doubted, the current system simply does not allow for the communication and feedback necessary to convey the necessary information or improve the skills of those involved in evidence development. Id.

  21. Indeed, the veterans’ claims system does not have a treating physician rule. See White v. Principi (2001).

  22. Although there is no statute or regulation providing for interrogatories in the VA system, the case of Gambill v. Shinseki (2009) contains a heated exchange between two Federal Circuit judges as to whether due process requires them. Compare id. at 1313–24 (Bryson, J. concurring; arguing that they are not), with id. at 1324–30 (Moore, J., concurring; arguing that they are).

  23. See Buczynski v. Shinseki (2011a; “[A] medical opinion is adequate when the examiner provides sufficient detail so that the rating specialist can interpret the report and make a subjective determination as to whether the condition meets the rating criteria.”); Stefl v. Nicholson (2007a); holding that physicians fulfill their role when they describe a claimant’s symptoms “in sufficient detail so that the Board’s 'evaluation of the claimed disability will be fully informed one'” (quoting Ardison v. Brown, 1994); Moore v. Nicholson (2007b; holding that the Board fulfilled its role when it considered the medical evidence of record and translated it into a specific disability rating pursuant to the applicable diagnostic code), rev’d on other grounds by Moore v. Shinseki (2009); 38 C.F.R. § 4.2 (2011; “Different examiners, at different times, will not describe the same disability in the same language… It is the responsibility of the rating specialist to interpret reports of examination…”).

  24. For example, the question of whether a skin condition is “exceptionally repugnant” is not a medical issue. Buczynski v. Shinseki (2011b).

  25. Moore v. Nicholson (2007c), rev’d on other grounds by Moore v. Shinseki (2009).

  26. Id.

  27. See infra Part II.A.2.

  28. See Charles v. Principi (2002; holding that a veteran is competent to testify when his or her symptoms are capable of lay observation); Layno v. Brown (1994; holding that lay testimony is competent to establish the presence of an observable symptomatology).

  29. See Jandreau v. Nicholson (2007b; holding that whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board).

  30. See supra note 15.

  31. 581 F.3 d 1313 (Fed. Cir. 2009).

  32. Id. at 1314.

  33. Id.

  34. Id. (emphasis in original).

  35. Id. at 1316.

  36. See infra Part III.C.

  37. If the events were related to combat, then the veteran’s statements must be accepted as true under 38 USC § 1154(b) (2002), if they were “consistent with the circumstance, conditions, or hardships of such service,” unless there were clear and convincing evidence contradicting the testimony (Collette v. Brown, 1996). However, precisely what qualifies as “combat” is sometimes a difficult question, and it is ultimately the responsibility of the adjudicator, not the physician, to determine if the presumption under Section 1154 applies. See Sizemore v. Principi (2004a; considering whether incoming fire is a necessary element of combat).

  38. However, this is not to say that the veteran’s account of what happened in service is immune to challenge. See Holton v. Shinseki (2009b; rejecting the argument that a physician must presume that the veteran’s account of what happened in service is true).

  39. See Sizemore v. Principi (2004b; remanding for a new medical examination to “remove whatever taint there may be from this psychiatrist’s overreaching in his report”; Owens v. Brown, 1995).

  40. 24 Vet. App. 428 (2011).

  41. Id. at 430.

  42. Id. at 434 (internal quotations omitted).

  43. Id.

  44. Ardison v. Brown (1994; quoting Green v. Derwinski (1991b)).

  45. See, e.g., D’Aries v. Peake (2008; concluding that an opinion from a neurologist constituted “substantial compliance” with a request for an opinion from an internal medicine specialist).

  46. Cox, 20 Vet. App. at 569 (“The level of training, education, and experience of the person conducting the examination is a factor that, if the Board affords more or less weight to the report because of that reason, must be thoroughly explained in its decision.”). Cox held that VA may presume that a nurse-practitioner has sufficient qualifications to render an opinion on a medical issue absent evidence to the contrary. Id.

  47. Reonal v. Brown (1993; holding that the Board may reject a medical opinion that is based on facts provided by the veteran that have previously been found to be inaccurate); Swann v. Brown (1993; same).

  48. See Kahana v. Shinseki, 24 Vet. App. 428, 439 n.8 (Lance, J., concurring; explaining the difference between an inaccurate factual premise and an incomplete one).

  49. VA Form 21–4138, available at http://www.vba.va.gov/pubs/forms/vba-21-4138-are.pdf.

  50. See Ridgway, Lessons the Veterans Benefits System Must Learn, supra note 9, at 421.

  51. Id.

  52. Green v. Derwinski (1991b); see also Barr v. Nicholson (2007), Ardison v. Brown (1994).

  53. See Moore v. Nicholson (2007b); “It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.” (citing 38 C.F.R. § 4.2 (2011)), rev’d on other grounds sub nom. Moore v. Shinseki (2009).

  54. Polovick v. Shinseki (2009a; citing Stefl v. Nicholson (2007b)). Polovick held that statistical evidence constituted a proper basis for a medical opinion that a veteran’s brain tumor was caused by exposure to Agent Orange, even though that condition was not presumptively related to exposure. Id. at 54.

  55. Id.

  56. 21 Vet. App. at 51–52.

  57. See Gilbert v. Derwinski (1990; tracing the origins of this standard back to the Civil War).

  58. Id. at 55. Lay persons are often misled by the word “doubt” into believing that the standard is related to the “beyond a reasonable doubt” standard in criminal law, which is much more demanding and places the burden on the government. See, e.g., Schram (2008; asserting that VA does not apply the benefit-of-the-doubt standard and instead makes recommendations based upon the criminal law standard).

  59. See, e.g., Haas v. Shinseki (2009) (“[T]he appellant’s claim will be remanded in order for VA to provide such an examination, including an opinion as to whether it is at least as likely as not that the appellant’s type-II diabetes mellitus was incurred in or aggravated by active service.”); Stover v. Mansfield (2007) (“[T]he Board again sought a VHA opinion as to whether it was at least as likely as not that the veteran’s disorder had worsened beyond its natural progression.”).

  60. Id. at 304.

  61. Stefl v. Nicholson (2007b); see also Miller v. West (1998; “A bare conclusion, even one reached by a health care professional, is not probative.”).

  62. Stefl, 21 Vet. App. at 124.

  63. See Mattern v. West (1999; holding that deductive reasoning in a medical opinion is acceptable, even though inductive reasoning is more common).

  64. See Polovick v. Shinseki (2009b) (holding that an opinion phrased as “may well be” was speculative and could not support an award of service connection); Bostain v. West (1998; stating that a medical opinion phrased in terms of “may” also implies “may or may not” and is speculative); Bloom v. West (1999; concluding that an opinion phrased in terms of “could” was speculative without a clear theory of etiology).

  65. Id.

  66. Id. (Lance, J., concurring) (“[I]f the medical evidence in the record indicates that a disability has only two potential causes and at least one is related to service, then the inability of the medical examiner to provide a reason why one is more likely the cause of the claimant’s disability would place the evidence in equipoise, and the benefit of the doubt rule would apply.”)

  67. Robinson v. Peake (2008), aff. sub nom. Robinson v. Shinseki (2009).

  68. See supra note 6 and accompanying text.

  69. 21 Vet. App. at 553.

  70. See Holton v. Shinseki (2009a; “[A] service member’s workday never ends.”).

  71. 38 USC § 101(24)(B) (2002).

  72. 38 USC § 101(24)(C) (2002).

  73. 38 USC §§ 1110 (basic entitlement for wartime service), 1131 (basic entitlement for peacetime service) (2002).

  74. 38 C.F.R. § 3.302(a) (2011).

  75. 38 C.F.R. § 3.302(b)(2) (2011).

  76. 38 C.F.R. § 3.302(b)(1) (2011).

  77. 38 C.F.R. § 3.301(c)(2) (2011).

  78. 38 C.F.R. § 3.301(c)(3) (2011).

  79. There are five different types of discharge, only two of which automatically entitle the recipient to “veteran” status under Title 38. See Eaton et al. (2010).

  80. 38 USC § 5303(b) (2002).

  81. Gardner v. Shinseki (2009; noting that the court first pointed out problems with the archaic standard in Zang v. Brown (1995)).

  82. 38 C.F.R. § 3.354(a) (2011).

  83. See Sanchez-Benitez v. West (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi (2001; “[P]ain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.”).

  84. Id. at 6.

  85. 23 Vet. App. 1 (2009).

  86. Id. at 3.

  87. See Pentecost v. Principi (2002); Suozzi v. Brown (1997); 38 C.F.R. § 3.304(f)(2) (2011).

  88. See 38 C.F.R. § 3.304(f)(4) (2011).

  89. Although it does not appear that the CAVC has addressed what would happen if it were impossible to attribute a diagnosis when both verified and unverified stressors were at issue, the court has held that the benefit of the doubt applies when it is impossible to determine whether a symptom were attributable to a service-connected or non-connected condition. See Mittleider v. West (1998).

  90. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,843 (Jul. 13, 2010; amending 38 C.F.R. § 3.304(f) (2011)).

  91. Several veterans groups have filed a rulemaking challenge at the Federal Circuit arguing that the rule unfairly prevents private physicians from being used to corroborate claims. See Nat’l Org. of Veterans Advocates v. Dep’t of Veterans Affairs (2011). It remains to be seen whether the court will invalidate or modify the regulation.

  92. See supra Part II.B.2.

  93. See 38 USC § 1101(3) (2002).

  94. See, e.g., Bonner v. Nicholson (2005; addressing a dispute as to whether the veteran’s cancer were properly classified as one subject to a presumptive service connection).

  95. See 38 C.F.R. § 3.303(b) (2011).

  96. 38 C.F.R. § 3.309(a) (2011).

  97. 38 USC § 1101(3) (2002).

  98. See 38 C.F.R. § 3.303(b) (2011).

  99. See Savage v. Gober (1997) (“[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology.”).

  100. 38 C.F.R. § 3.110(a) (2011).

  101. 20 Vet. App. 173 (2006).

  102. Id.

  103. See 38 C.F.R. § 4.16 (2011).

  104. See Moore v. Nicholson (2007a), rev’d on other grounds sub nom. Moore v. Shinseki (2009).

  105. See Institute of Medicine of the National Academies (2007; noting that the current schedule was developed in 1945 and that some sections are still largely the same).

  106. See Veterans’ Disability Benefits Comm’n (2007; produced pursuant to Pub. L. No. 108-136); cf. Vasquez-Flores v. Shinseki (2009; holding that the effects of a disability on a veteran’s daily life “are not relevant to a disability rating made by a ratings specialist.”).

  107. 38 C.F.R., ch. 4 (2011).

  108. “Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7 (2011); see Cullen v. Shinseki (2010).

  109. See Thun v. Peake (2008), aff’d sub nom. Thun v. Shinseki (2009); 38 C.F.R. § 3.321(b) (2011).

  110. See Mittleider v. West (1998). If a veteran were to have multiple service-connected psychiatric conditions, the examiner should try to attribute the symptoms to a specific condition if possible, but VA might use a single rating for all conditions to ensure that all symptoms were rated. See Amberman v. Shinseki (2009).

  111. See Mauerhan v. Principi (2002; discussing 38 C.F.R. § 4.130 (2011)); see also Sellers v. Principi (2004; affirming the CAVC’s holding in Mauerhan that symptoms listed in the DSM-IV supplement, rather than replace, the criteria listed in 38 C.F.R. § 4.130 (2011)).

  112. See Mauerhan, 16 Vet. App. at 443–44.

  113. See Brambley v. Principi (2003; holding that a GAF score is only one factor in determining an appellant’s disability).

  114. Mauerhan, 16 Vet. App. at 443 (“If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned.”).

  115. See Ridgway, VJRA 20 Years Later, supra note 2, at 283–86.

  116. Under certain circumstances, medical records can be considered a claim for an increased rating or a claim to reopen a previously denied claim. See 38 C.F.R. § 3.157 (2011).

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    James D. Ridgway

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Ridgway, J.D. Mind Reading and the Art of Drafting Medical Opinions in Veterans Benefits Claims. Psychol. Inj. and Law 4, 171–186 (2011). https://doi.org/10.1007/s12207-011-9113-4

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  • DOI: https://doi.org/10.1007/s12207-011-9113-4

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