Fears: Medical Examiner Competence Presumed Unless Challenged Before the Agency

Fears v. Wilkie, Case Number 17-2345, decided August 12, 2019 discusses the presumed competence of a VA medical examiner and reaffirms that such competence is presumed unless challenged at the Board level and typically cannot be raised initially before the Court.

This involves a Dr. Wilhelm who the Court noted had been discharged from an Army medical residency program and later linked in some news articles as possibly having a role in the mishandling of VA examinations.  Id. at *2.  The veteran was denied service connection for hepatitis mostly upon the basis of an opinion by Dr. Wilhelm. 

The veteran argued under offensive collateral estoppel, VA was precluded from relying on Dr. Wilhelm’s medical opinion of the examiner’s litigation history.  Id. at *4.  The Court noted the veteran did not specifically challenge the adequacy of his medical opinion in his principal brief, but in his reply and that thus the Court would  not entertain those arguments. 

The Court began by discussing the presumption of competence as related to VA medical examiners, it explained:

The presumption of competence is rooted in in the presumption of regularity, which "provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties." This presumption of regularity requires courts "to presume that what appears regular is regular." And it shifts the burden to the party seeking to rebut the presumption "to show the contrary."38 In this context, showing the contrary "requires nothing more than is required for veteran[-]claimants in other contexts—simply a requirement that the veteran raise the issue" before VA.  "Given that one part of the presumption of regularity is that the person selected by . . . VA is qualified by training, education, or experience in the particular field, the presumption can be overcome by showing the lack of those presumed qualifications." Whether the presumption has been rebutted is inherently a question of fact the Court will review for clear error. Under this clear-error standard, we may overturn the Board'sfinding only if there is no plausible basis in the record for the Board's decision and the Court is "left with the definite and firm conviction that" the Board's decision was in error.  Today, however, we address the scope of the Wise exception, a legal question distinct from the question whether the presumption of competence has been rebutted in a specific appeal. We review questions of law such as this without deference to the Board. Moreover, the Board must provide a statement of the reasons or bases for all its material determinations of law and fact "adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court."

Id. at *4-5.  The Court then discussed how the case law evolved as to this issue, highlighting Federal Circuit and Veterans Court cases, which principally seem to assert that a veteran must raise the issue of the examiner competence before the agency or Board before arguing it to the Court. 

It ended with a discussion of the recent cases Wise v. Shinseki and Francway v. Wilkie.  Wise is an unusual case that should never have been defended by the VA where the examiner explicitly stated in her opinion she did had no training or background in psychiatry and her opinion was no more than a laypersons.  The Wise court found it unreasonable for the Board to rely on the examiner’s opinion even though the issue of examiner competence had not been raised to the Board.  The Fears Court described the Wise case as a “limited exception to the requirement that claimants expressly challenge

VA's selection of a medical examiner before the Board, relieving them of this obligation where there are facially obvious issues of competence.”  Id. at *9.  Meanwhile Francway was a Federal Circuit case where the veteran failed to challenge the choice of an internist for a back examination while before the agency.  The Federal Circuit in Francway explained:

“[t]he presumption of competency requires nothing more than is required for veteran claimants in other contexts—simply a requirement that the veteran raise the issue."

"[O]nce [a] veteran raises a challenge to the competency of a medical examiner," the court said, "the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner's qualifications." But the court also explained that claimants' burden of rebutting the presumption must be offset by "the ability to secure from the VA the information necessary to raise the competency challenge." Thus, once a claimant requests information about an examiner's qualifications, he or she "has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist."

Id. at *10.

In the case at hand, the Veterans Court determined there was no explicit admission of incompetence or anything in the record to independently demonstrated an irregularity.  Id. *11.  As to the prior litigation and news articles about Dr. Wilhelm, the Veterans Court determined they were not in the record and could not be considered by the Court.  The Court seems to focus on two prongs to a finding that something should constructively be in the record: (1) are the records within the Secretary’s control and (2) could they reasonably be expected to part of the record.  It did not affirmatively answer part one but was clear that part two was not met in this case. 

The Court did note: “as the Secretary recognized at oral argument, if the appellant had

properly submitted these documents to the Board, the Board likely would have been required to discuss them, even if the appellant had not expressly raised the argument.

The Secretary's concession is consistent with the Federal Circuit's comment in Francway that the Wise exception is not limited to the precise facts of that case but also concerns those parts of the record that "independently demonstrate[] an irregularity in the process of selecting the examiner."

In its opinion the court was clear the need to raise the issue of an examiner’s competence applies to pro se litigants.  So, the takeaway from this case is likely that you as a pro se veteran and we as practitioners should start (1) asking for CVs of examiners and (2) in our Board memorandum challenge the practitioner’s competence.  I am troubled by the restrictive notion of what was in the record.  It seems an explanation of why the Court would not take judicial notice of the prior case involving Dr. Wilhelm is in order.  I would argue for something less than requiring both records be in the Secretary’s control and that they reasonably be expected to be part of the record.

Decision by Judge Allen and joined in by Judges Schoelen and Toth.

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