Client Win: CAVC No. 20-1514, Butler v. Wilkie (BVA Veterans Law Judge ignores Veterans Court's order)
This case involves a US Army veteran who served from 1965 to 1967. In his appeal, a BVA Veterans Law Judge decided - again - not to award a prostate cancer rating higher than 60% based on the medical opinion of a nurse practitioner who specialized in pediatrics and family practice.
The appeal was resolved, again, through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (BVA Veterans Law Judge ignores Veterans Court's order).
In a previous BVA decision remanded by the US Court of Appeals for Veterans Claims in May 2019, the government attorney had agreed that the BVA erred when it relied on experts with specialties in family practice and pediatrics to opine on the etiology of urology and genitourinary conditions in a grown man.
On remand, the Court ordered the BVA judge to address the competence of nurse practitioners with specialities in pediatrics to opine on the severity of the prostate cancer residuals - a genitourinary condition - in grown men.
Two rules of law govern this appeal.
First, a veteran is entitled to the BVA's compliance with Court remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court's remand orders are instructions the BVA is bound to follow.
Second, when a claimant challenges the competence and qualifications of a VA examiner, the Secretary is obligated to present affirmative evidence of the examiner’s qualifications before it can rely on that opinion. Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).
Did the BVA fail to follow either or both of these rules?
RESOLUTION AT THE CAVC.
In addition to ignoring the Court's order, and committing a so-called Stegall error, BVA judge Nathaniel J. Doan ignored the Court's order in a November 21, 2019, decision that committed the same error as its prior decision.
The decision, written by either BVA judge Nathaniel J. Doan or BVA associate attorney C. Robinson, provided only this mention of competence:
"the VA examiners were competent to review the Veteran’s claims file, to include the Veteran’s VA and private treatment records, and assess whether the Veteran’s prostate cancer was in remission."
The BVA erred first because the Veterans Law Judge ignored the Court's order in the Joint Motion to remand just a few weeks earlier.
The BVA's second error was that Veterans Law Judge Doan did not demonstrate that he understood the difference between a person being competent to review a claims file and a medical expert having the competence to render an opinion.
In a second remand, the BVA was again expressly ordered to explain how a nurse practitioner with specialties in pediatrics was competent to opine on the severity of a grown man's prostate cancer residuals.
The BVA is quite fond of issuing decisions that don't address the foundational legal issues of the competence of VA examiners.
The law has been clear for years: when a veteran or their representative either challenge the competence of medical personnel to render a particular medical opinion, or when the veteran or their representative request evidence of the examiners' competence, the duty to assist requires that the BVA honor those requests and address the competency issue.
This is one of the top errors committed by the BVA.
It is not clear whether this consistent error is due to the BVA's haste in rushing decisions to meet its "quotas" or due to the lack of legal training of BVA veterans law judges.
If the BVA has ignored a remand order from the Veterans Court, or its own remand order, or if the BVA did not address the competence of your VA medical examiner even though you challenged the examiner's competence, please click here to consider having Attig | Curran | Steel take a look at your case.
OGC Attorney: Ronen Z. Morris (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: Nathaniel J. Doan (link to firm's cases involving Veterans Law Judge Doan)
Attorney for the BVA: C. Robinson, Associate Counsel (bio unavailable online)
Vets’ Rep at BVA: Stacey Clark, Attorney (Morgan & Morgan) (Link to attorneys bio on firm website)
Date of BVA Decision: November 21, 2019
Date of CAVC Joint Motion to Remand: November 9, 2020
Link to CAVC Joint Motion to Remand