Harvey: Evidence from an Attorney/Medical Doctor

Harvey v. Shulkin, Case Number 16-1515, decided February 7, 2018 examines a fairly limited question: whether part of a legal brief submitted to the Board by Mr. Harvey’s attorney, who is also a medical doctor, constituted a medical opinion that the Board was required to address.

                                                          

The veteran sought service connection for several issues including sleep apnea.  In a brief submitted by counsel for the veteran, counsel—who is also a medical physician—stated  “The veteran's sleep apnea is more likely than not secondary to his service-connected MDD/PTSD.”  Id. at *3.  The brief also offered a rationale.  Id.  The Board denied service connection based on a lack of a medical nexus. 

On appeal, counsel argued the VA failed to address the medical nexus opinion found in the brief.  The Secretary argued the brief was a legal brief rather than a medical opinion.  The Court found

after considering attributes relevant to such a determination, the Court concludes that Mr. Anaise's December 2014 submission did not contain a discernable medical opinion. This conclusion is based on the text of the submission and the indicators of legal advocacy and legal argument therein, as well as the absence of indicators that Mr. Anaise was acting in the role of a medical expert, including the lack of an identifiable medical opinion containing medical judgment and rationale, in the December 2014 submission. The Board would have needed to exercise extraordinary powers of clairvoyance to recognize that the December 2014 submission contained a medical linkage opinion on behalf of Mr. Harvey, as Mr. Anaise argues before this Court. The Court concludes that Mr. Anaise's inclusion of the designation "MD" on his letterhead and in his signature block, absent any markers within the submission that indicate that he was acting in a medical-expert role, along with the fact that his submission was identified as an "appeal brief" and contained legal argument to the exclusion of medical judgment and opinion, is insufficient to mark the December 2014 submission, or any part thereof, as the opinion of a medical expert.

Id. at *8.

The Court then considered the Model Rules of Professional Conduct and seemed to imply the mixing of the role of advocate and medical expert was problematic under Rule 3.7. 

The Court then considered a secondary service connection argument for sleep apnea as secondary to PTSD and mood disorder.  The Court found the Board properly considered the medical treatise and stated “[i]nterpretation of a medical treatise's meaning and assessment of its probative value as evidence in support of the claim being adjudicated are within the purview of the Board as factfinder.”  Id. at *12.

The decision is a hard result for the veteran, but probably necessary.  The Court made clear that blurring the lines between medical expert and legal advocate is problematic and will be looked upon unfavorably by the Court.

Decision by Judge Bartley, joined by Chief Judge Davis and Judge Schoelen.