Attorney as VA Medical Expert?

February 9th, 2018

What is the Deep Issue in the Case?

The Court of Appeals for Veterans Claims has laid out clear standards for determining the adequacy of a VA expert opinion in a VA disability compensation claim. Accord, e.g., Monzingo v. Shinseki, 26 Vet.App. 97 (2012); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008); and Stefl v. Nicholson, 21 Vet.App. 120 (2007). No prior decision lays out the standards for "how an adjudicator is to determine whether a specific submission constitutes a medical opinion."

In this case a veteran argued his sleep apnea was secondary to his PTSD. His lawyer is also a doctor. His lawyer submitted a document relating the sleep apnea to the PTSD. The letter had the designation "MD" on his letterhead and in his signature block. The letter did not indicate the lawyer was acting in a medical-expert role. The document was identified as an "appeal brief" and contained legal argument only. It did not contain medical judgment, reasoning or opinion.

Is a lawyer's brief to the BVA sufficient to be qualified as an expert opinion, when the lawyer indicates on his brief that he is a medical doctor?

What did the CAVC Decide?

The Court said no - the BVA acted correctly to not consider a lawyer's brief as a medical opinion connecting PTSD and sleep apnea for purposes of VA disability compensation. The Court affirmed the BVA's denial of service connection for sleep apnea as secondary to PTSD.

The Court laid out criteria for when a submission is to be considered a medical expert opinion when its proponent also has another role in the case:

Witness is acting in the role of a medical professional in presenting the proffered testimony
The profferred testimony bears the indicia that it is submitted as the professional opinion of a medical expert.
The text contains no indication that a medical opinion was being provided (for example, evidence of an identifiable medical judgment and contains rationale for an opinion rendered)
Language that is reflective of a reasoned medical judgment must be independent of - or clearly discernible from - testimony or argument in support of the claim that is beyond the scope of the medical opinion rendered.

** This is not an effective binding precedent until the CAVC issues its mandate. If the Appellant does not seek reconsideration of the CAVC panel decision, full court review, or appeal the decision to the Federal Circuit Court of Appeals, the mandate will likely issue in late April 2018. ***

Takeaway Points for VSOs and Veterans Disability Lawyers:

1. There is great value in this decision.

It has long bothered me - this idea of a "non-adversarial" veterans disability claims process. Set aside, for the moment, that those words appear in no statute, law or regulation governing VA Benefits.

Focus on what veterans are deprived when words Congress never passed into law are read into law, as law.

The search for the truth - the American way of searching for the truth - is lost.

Our nation is built on the idea that an adversarial search for the truth - where parties get broad latitude to explore and counter and attack the factual presentations of their opponent - is the cornerstone of justice.

One of the key tenets of the adversarial process is this: when a witness proffers testimony as an expert, they must first be qualified - by the court - as an expert. This tenet acts as a filter on "junk science".

That filter does not exist in the Veterans Benefits system: for the sole reason that Courts read a passing statement of a single Congressman a few years back as the defining ideal of the VA Benefits process.

Here's how it works:

The VA's experts are experts because the VA says they are - and if a veteran wants to challenge one, he needs to make that challenge in specific legalese at every critical juncture of his appeal.

(Never mind that he is rarely told when a C&P exam opinion is used to deny the claim...before the decision; never mind that he is never given a copy of that VA medical expert exam opinion unless he asks for it and waits years for the VA to get around to sending it to him)

As for a veteran's expert is NOT an expert unless....well...we have never really known what it takes to truly qualify a veteran's expert at the VA Regional Office or BVA.

This decision does not change that.

It only gives us a tool for evaluating whether an individual testifying on the veteran's behalf is acting is offering the VA medical expert testimony or opinion, or offering testimony in some other role (in this case, offering argument as the veteran's attorney).

It leaves open the question of evidentiary competence: can a veteran's attorney even testify as a medical expert in his VA case in the first place? That's a stretch of quicksand I'm going to steer clear of for the time being.

Having said all that, let me slip into my own comfortable and easy role as "Monday Morning Quarterback".

It bears repeating: my role in reviewing the Court's decisions is never to be critical of the Court or second guess their decisions. If I think a decision is wrong or wrongly decided, that is my opinion only, and not a judgment on the quality or caliber of the Court. In fact, my role here is necessarily limited by the fact that I don't see the record the Court sees, nor am I privy to the broader concerns that they must consider and address in a precedential decision.

In this case, I believe the Court decided more than they needed to decide in this case.

Federal Rule of Evidence 702 - and the extensive body of case law that has developed around that rule for more than a half-century - gives a court every tool it might need to suss out whether an expert is properly qualified to proffer a particular opinion.

It is true, the Federal Rules of Evidence do not apply to BVA proceedings; but the courts will look to those rules for guidance on evidentiary matters.

Had they done so here....ahhh, well, a lawyer can dream, can't he?

It's time for me to finally reach a point:

Think back on your last 10 cases.

How many of those had a VA medical expert opinion that could meet all of these criteria?

10%? 20%?

Not many, based on the opinions I see when reviewing BVA decisions for appeal to the CAVC.

As an accredited VA disability attorney representing veterans before the BVA, I strongly encourage you to use the criteria the Court lays out in Harvey to evaluate a challenge to any VA medical expert opinion.

Use these criteria - and more - to challenge VA medical expert opinions in every Notice of Disagreement (NOD), VA Form 9.

Challenge them in your written briefs and oral presentations to BVA Veterans Law Judges.

Push back on any VA medical expert opinion which fails to meet these criteria. Raise the objection - in writing and often.

Particularly criteria #2.

In addition to challenging the qualifications and methodology of every single VA medical expert in every single NOD and VA Form 9, take a long hard look at the documents the VA proffers as the "professional opinion of a medical expert". Point out every instance where it does not bear the indicia of a professional opinion of a VA medical expert.

And if the BVA still relies on the opinion to deny your client's claim, give me a shout: Attig | Steel is actively seeking to assist practitioners by appealing their clients denials of benefits to the Court of Appeals for Veterans Claims (CAVC) when those cases turn on what is closer to "junk science" than a professional medical opinion against a veteran's disability compensation claim.

This includes challenges to evidentiary predicates and foundations, factual and legal sufficiency, witness competency, qualifications and methodology, credibility of VA medical opinion authors, and more.

2. Take care to prove up your witnesses.

While the Federal Rules of Evidence do not strictly apply in BVA appeals, they have grown out of centuries of evidentiary development by courts, and both the Court of Appeals for Veterans Claims and the Federal Circuit Court of Appeals have relied on those rules to navigate tricky evidentiary issues in BVA decisions.

Use them as if they applied.

If you prove the factual predicate for a business record in a BVA hearing, then a BVA judge is likely going to have to make some significant legal mis-steps to find your proffering witness and records lack competency.

If you prove up your expert's qualifications as if the Federal Rules of Evidence applied, it is going to be nigh impossible for the BVA to legitimately reject the competence and credibility of your expert to deny your client's claim.

I am not saying they won't deny our client's claim.

What I am saying is that the day is fast approaching when the ability of a VA accredited attorney to follow the evidentiary rules at the BVA will be a game-changer - either in terms of getting better and faster decisions for your clients, or in terms of building reversible error into the record.

That said, as a bare minimum, don't cut corners.

Take care to prove up your witnesses before the BVA - using the Federal Rules of Evidence as your guide - and you will have a vast body of case law to bolster your arguments at the CAVC.

I want to be clear that I am no way suggesting that an attorney should - or should not - act as a witness in a client's matter. There are scenarios where it might be the right thing to do, where it is the wrong thing to do, and an infinite gray area in between (that tends far closer to the latter than the former). Because, however, there is great potential for conflict in any scenario where a lawyer acts as a witness on behalf of his own client - from the financial, to the professional independence of the lawyer, to the credibility of the lawyer as witness, to the impact on the attorney-client privilege, and more - it is probably best to just avoid the scenario (and seek the input of your malpractice insurance carrier).
The Court expressed strong concern with the practice, pointing out the confusion that was wrought on the Court - and I tend to agree. This precedential opinion should not have been an issue before this Court, in my personal opinion; there are far more important issues to tackle than addressing the propriety of the practice structure of individual attorneys. Nevertheless, the Court found this practice was not a violation of the model rules governing attorney professionalism only because they found that the lawyer's letter was not a medical expert opinion.