[00:00:00] Speaker 05:
Case number 157094.

[00:00:03] Speaker 05:
Mr. Lippman, you want to reserve five minutes for rebuttal?

[00:00:30] Speaker 05:
OK.

[00:00:33] Speaker 02:
May it please the court, Mark Lippman, representing Freddie Mathis.

[00:00:39] Speaker 02:
As the court may well know, I believe that the circuit made a wrong turn with Rizzo and just kept going without really much careful analysis of what effect it would have on the VA system.

[00:00:54] Speaker 02:
And as I've argued it, one of the biggest factors.

[00:00:57] Speaker 01:
What effect has it had?

[00:01:00] Speaker 01:
What effect has it had?

[00:01:01] Speaker 01:
You're going to argue that, or you should be arguing that something has appeared subsequent to RISO that would motivate us to reconsider it.

[00:01:16] Speaker 01:
What's the effect then?

[00:01:18] Speaker 02:
Well, the reason, two answers to that question.

[00:01:21] Speaker 02:
One is, the reason is it was a wrongly decided case.

[00:01:26] Speaker 02:
And the effect is really hard to say because

[00:01:30] Speaker 01:
it's such an insidious doctrine because it puts... I think an argument that it was wrongly decided is not a winning argument.

[00:01:37] Speaker 01:
You're going to have to show more than that.

[00:01:39] Speaker 02:
But like I said, one is it puts the burden.

[00:01:43] Speaker 02:
In other words, it creates an adversarial procedure that heavily burdens claimants that aren't represented by attorneys, which is most of the claimants.

[00:01:55] Speaker 05:
What's the VA supposed to do?

[00:01:57] Speaker 05:
So in this particular case, I could see

[00:01:59] Speaker 05:
Now these facts jump out at you.

[00:02:01] Speaker 05:
Maybe you say, well, you needed a pulmonologist for this.

[00:02:05] Speaker 05:
But was there a request for a pulmonologist?

[00:02:08] Speaker 05:
I mean, there was no objection to the examiner.

[00:02:12] Speaker 02:
Yeah, but that assumes the argument that the burden is on them to make an adequate, to get a competent expert.

[00:02:22] Speaker 04:
And so the question is, why is that so objectionable?

[00:02:28] Speaker 04:
wrong for the default rule to be that the VA should be presumed to be picking a doctor that's competent to do the examination for a particular veteran for a particular affliction.

[00:02:41] Speaker 04:
And then if the veteran sees the doctor and realizes that this is the wrong doctor, then the veteran can say, wait a second, this is a generalist.

[00:02:53] Speaker 04:
And for my particular condition, I really ought to be examined by a specialist.

[00:02:59] Speaker 04:
What's wrong with that kind of orderly process and organization of the process?

[00:03:05] Speaker 02:
Yeah, a lot is wrong with that.

[00:03:06] Speaker 02:
First thing from a jurisprudential point of view, if you're alleging that somebody, if you're alleging a fact, and the VA is alleging that we provide competent examiners, it's their burden of proof.

[00:03:18] Speaker 02:
I mean, that's how basic jurisprudence works.

[00:03:21] Speaker 02:
You don't prove a negative, OK?

[00:03:24] Speaker 02:
And that's the very reason there's a presumption of competency, because if you don't have it,

[00:03:28] Speaker 02:
then it would be falling on them.

[00:03:31] Speaker 02:
The second of all is... To do what?

[00:03:33] Speaker 05:
That's part of what my problem is.

[00:03:35] Speaker 05:
Are they supposed to give you his curriculum vitae, or are you saying that the vieje has to say that given the alleged medical problem, that they have to get experts from Hopkins or the Cleveland Clinic every time if there's an alleged medical problem that is

[00:03:58] Speaker 05:
beyond sort of something that you would normally have on a day-to-day basis?

[00:04:02] Speaker 05:
I'm just not sure what they're supposed to do.

[00:04:04] Speaker 02:
They're supposed to do to give just some showing, some showing like what 702 requires, which is a liberal standard in the civil side in which Neal Rodriguez adopted as the law for VA.

[00:04:18] Speaker 02:
I mean, you can't get around that question.

[00:04:20] Speaker 02:
Now, let's say a veteran says, I object to the competency of this doctor.

[00:04:26] Speaker 02:
So what does the VA do?

[00:04:28] Speaker 02:
I mean, you don't get around the difficult question, or I don't see it as a difficult question, but the more complicated question by shifting it to the veteran.

[00:04:40] Speaker 02:
The only reason it's not an issue is because you're taking advantage of unsophisticated, vulnerable claimants who don't have a clue about the law, don't know what waiver means.

[00:04:50] Speaker 02:
That's the only reason why it's such a convenient.

[00:04:53] Speaker 02:
You're not seeing it that much, and that's why there's no transparency or anything on the record.

[00:04:58] Speaker 05:
It's not so much a clue about the law.

[00:05:00] Speaker 05:
It's more of a clue about medicine.

[00:05:03] Speaker 05:
So I guess my question is, I've got an internist who I think would be competent to diagnose almost anything.

[00:05:11] Speaker 05:
I don't need to go to a pulmonologist for this question if that's my internist.

[00:05:16] Speaker 05:
So why is it that the VA has to say in advance that a specialist should be involved when

[00:05:25] Speaker 02:
Well, I never said that a specialist was required.

[00:05:28] Speaker 02:
I just said somebody, a medic with some experience.

[00:05:31] Speaker 02:
So if they said, well, I'm not a specialist.

[00:05:33] Speaker 02:
I'm not a pulmonologist.

[00:05:34] Speaker 02:
But I've handled respiratory illnesses for a while.

[00:05:38] Speaker 02:
I've done VA exams just to show that it's just not pure guesswork like this doctor was.

[00:05:46] Speaker 02:
I mean, I would say that would be the very least.

[00:05:48] Speaker 02:
And it's a big problem.

[00:05:50] Speaker 02:
Why has this court seen so many cases

[00:05:53] Speaker 02:
I believe it's four published cases on the presumption of competency because it hurts.

[00:05:59] Speaker 02:
It's a big problem.

[00:06:02] Speaker 02:
And I don't think that just sweeping it under the table and saying, well, you could have raised it is a satisfactory answer to what should be a claimant-friendly system.

[00:06:18] Speaker 02:
I mean, I really don't get it.

[00:06:23] Speaker 01:
It seems to me you can't raise the issue of competency if you don't have any basis or information upon which to raise it.

[00:06:30] Speaker 01:
So if a veteran simply says, I doubt that the physician is competent, it seems to me that the VA is in a very good position to say, well, show me.

[00:06:40] Speaker 01:
How do you know?

[00:06:40] Speaker 01:
And that the veteran doesn't have the information, the VA does.

[00:06:45] Speaker 01:
That seems to me to be one of your concerns.

[00:06:48] Speaker 02:
Yeah, but how does a veteran know that he even

[00:06:52] Speaker 02:
has the right to have a competent VA exam.

[00:06:58] Speaker 05:
Couldn't there be a situation in which the veteran sees the report and says, this doesn't make any sense, and then questions whether or not?

[00:07:08] Speaker 02:
He can look at it, but the VA is a more sophisticated body.

[00:07:13] Speaker 02:
Why put the burden on the veteran to ensure it's just a baseline level of competency?

[00:07:20] Speaker 02:
Where else do you see this pleading in

[00:07:22] Speaker 02:
and proof requirement, what other area of VA law do you see it?

[00:07:27] Speaker 02:
You don't.

[00:07:29] Speaker 05:
Well, I'm not unsympathetic to the arguments that you're making, and I'm certainly not unsympathetic to the fact that I don't see how this arises out of presumption of regularity.

[00:07:39] Speaker 05:
What I'm concerned about is that I don't know how the VA could operate under an alternative rule.

[00:07:46] Speaker 05:
And you're not giving me practical results.

[00:07:52] Speaker 02:
OK, and I apologize for that.

[00:07:54] Speaker 02:
The VA has not argued that it doesn't have the resources for enough specialists.

[00:08:00] Speaker 02:
And I'm not saying you need a specialist to maintain a minimum level of competency.

[00:08:07] Speaker 02:
But if you look at page 21 of their brief, it says, moreover, just because the VA often requests medical opinions from general practitioners does not mean that a specialist's opinion is not available when warranted.

[00:08:22] Speaker 02:
Mr. Mathis overlooks that the adjudication process includes multiple opportunities for VA to obtain a specialist opinion, and then goes on to site a litany of provisions.

[00:08:34] Speaker 02:
And don't forget, they also have at the resource the QTC, which is Independent Contracting Agency, if, in fact, they don't have any available VA examiners that would fit the criteria.

[00:08:45] Speaker 01:
You're not challenging the competency of the medical expert sets

[00:08:52] Speaker 01:
that are picked.

[00:08:53] Speaker 01:
It seems to me you're challenging that the VA, excuse me, that the veteran doesn't have any basis upon which to determine whether the expert or the doctor is competent or not.

[00:09:08] Speaker 02:
Well, it all comes down to, Your Honor, is who has the burden of proof.

[00:09:13] Speaker 02:
I mean, and my feeling is... Oh, correct.

[00:09:15] Speaker 01:
And right now the burden is on the VA, is on the veteran.

[00:09:18] Speaker 01:
Right.

[00:09:18] Speaker 01:
And that shouldn't be... And what I've been trying to

[00:09:21] Speaker 01:
to get you to the point is that how can the veteran meet that burden if he doesn't have any information?

[00:09:31] Speaker 02:
Well, I assume that's my favor.

[00:09:34] Speaker 01:
Do you agree with that, that the veteran is unable to meet its burden because the veteran doesn't have the information upon which to make the challenge to begin with?

[00:09:44] Speaker 02:
But that's true, too.

[00:09:45] Speaker 02:
I mean, there is the accessibility of the information, the disparity.

[00:09:49] Speaker 02:
I mean, it seems like a natural.

[00:09:51] Speaker 02:
The VA has all that for them.

[00:09:52] Speaker 02:
They're their employees.

[00:09:53] Speaker 02:
They can easily find out the experience.

[00:09:58] Speaker 05:
So they attach a CV and shows that he has graduated from medical school.

[00:10:06] Speaker 05:
He's had years of training.

[00:10:07] Speaker 05:
He's had years of practice.

[00:10:10] Speaker 05:
Then what?

[00:10:11] Speaker 05:
But are they then, in every single case, supposed to then provide a detailed analysis of what level of experience they've had with the particular symptoms?

[00:10:26] Speaker 02:
The best way I could say it is this, that if you look on the civil side, because it's a similar issue that comes up, it's a very liberal standard.

[00:10:34] Speaker 02:
And I can't give you a one size fits all.

[00:10:36] Speaker 02:
It really depends on the complexity of the issue.

[00:10:41] Speaker 02:
cardiovascular diseases, and then there are really rare cardiovascular diseases.

[00:10:45] Speaker 02:
So it has some play there.

[00:10:47] Speaker 02:
And I think only the VA has the sophistication to understand that.

[00:10:53] Speaker 02:
I mean, the veteran looks to the VA as a paternalistic institution, not as an adversary trying to get evidence they don't have.

[00:11:02] Speaker 02:
And then on Baskin, they say not only do you raise it and get the evidence, but you've got to point to the trier effect exactly what are the deficiencies

[00:11:10] Speaker 02:
in that exam.

[00:11:12] Speaker 04:
Just to follow up on Judge O'Malley's question, I guess your proposed rule is to flip the default rule to go the other way and so for every time there's a medical examination done for a veteran to figure out veterans benefits, the medical examiner will not only write a report but also write a paragraph saying

[00:11:39] Speaker 04:
This is my relevant body of, well, you know, we need some help from you.

[00:11:43] Speaker 04:
So don't do this.

[00:11:46] Speaker 04:
What you want is so we can have something concrete to understand what to work with here.

[00:11:52] Speaker 02:
Right.

[00:11:52] Speaker 02:
So for example, if I have an orthopedic disability, I would say it's per se evidence, per se conclusive evidence that if you have a neurologist or orthopedist, they're an expert.

[00:12:09] Speaker 02:
So any specialist would just knock out that issue entirely.

[00:12:14] Speaker 02:
But if you want to go with a more generalist, I'd like to see him explain it either in CV, or I've even cited the cases where they've done it informally.

[00:12:24] Speaker 02:
But I think it would be just good on the DBQs.

[00:12:26] Speaker 02:
They say, what are your credentials?

[00:12:30] Speaker 02:
It would just be very informal.

[00:12:32] Speaker 02:
You could say, I'm a neurologist.

[00:12:34] Speaker 02:
I'm a board certified.

[00:12:38] Speaker 02:
If he's a general practitioner,

[00:12:39] Speaker 02:
Well, I've treated patients frequently in my practice for respiratory illnesses.

[00:12:47] Speaker 02:
I've dealt with sarcoidosis disease.

[00:12:50] Speaker 02:
So I'm not saying an essay.

[00:12:52] Speaker 02:
Just something, one or a sentence.

[00:12:56] Speaker 02:
Just so he's in the ballpark.

[00:12:59] Speaker 02:
He or she is in the ballpark.

[00:13:02] Speaker 02:
That's all I'm asking.

[00:13:03] Speaker 01:
I would suggest you give us a more detailed answer than that.

[00:13:07] Speaker 01:
Otherwise, what I see is in the future,

[00:13:09] Speaker 01:
You're going to be back here and challenging the sufficiency of the CV.

[00:13:18] Speaker 01:
Of the show?

[00:13:19] Speaker 01:
Yeah.

[00:13:19] Speaker 02:
But could I answer it this way?

[00:13:22] Speaker 02:
And then I'll try it.

[00:13:24] Speaker 02:
Let's say that we put the burden on the veteran.

[00:13:27] Speaker 02:
So the veteran, they're smart.

[00:13:29] Speaker 02:
They've got it.

[00:13:30] Speaker 02:
They're smart.

[00:13:31] Speaker 02:
You've got some smart veterans, and they're starting to raise and say, I think it's incompetent.

[00:13:35] Speaker 02:
This doctor's incompetent.

[00:13:38] Speaker 02:
The VA's got to come up with a showing now, right?

[00:13:43] Speaker 02:
He says they're incompetent, OK?

[00:13:45] Speaker 02:
So show me where the competency is.

[00:13:48] Speaker 02:
So they give three years of this.

[00:13:50] Speaker 02:
You still have that issue.

[00:13:52] Speaker 01:
No, the problem is that can happen right now.

[00:13:55] Speaker 01:
Under the status quo, the veteran can ask the, can allege or raise the competency of the expert or the doctor that's been assigned to them.

[00:14:07] Speaker 01:
That's possible.

[00:14:08] Speaker 01:
Right.

[00:14:09] Speaker 02:
It's possible.

[00:14:09] Speaker 02:
But the question is, why haven't you been seeing that?

[00:14:12] Speaker 02:
Because the VA knows that you're dealing with unsophisticated, vulnerable veterans who just don't have a clue.

[00:14:20] Speaker 02:
They don't even, and I deal with the service officers all the time, they don't even read the veteran court decisions.

[00:14:30] Speaker 02:
They wouldn't know what, if you mention Rizzo or if you mention Cox.

[00:14:34] Speaker 01:
So to move this along, what is it that the VA should be doing

[00:14:38] Speaker 01:
let's say we buy your argument.

[00:14:41] Speaker 01:
And what is it now that the VA should be doing in order to inform the veteran or to give the veteran?

[00:14:51] Speaker 01:
If what you're saying is true, the veteran's not even going to read that.

[00:14:55] Speaker 02:
No.

[00:14:55] Speaker 02:
What I'm saying is if you're looking for the ideal solution, the one I propose, is just a little, if you've looked at DBQs, and I've cited to it, they go through a whole list of different aspects.

[00:15:06] Speaker 02:
If you just put a little,

[00:15:10] Speaker 02:
part that's saying please indicate your experience, your education or experience, any of those, you'll go in and in fact it's interesting because if you look at the last page of the appendix, page 63, it says some DBQs require a specialist to complete the examination.

[00:15:34] Speaker 02:
The DBQ will identify specialist requirements.

[00:15:39] Speaker 02:
And I read that as that

[00:15:40] Speaker 02:
They want to see, if you're asking for a specialist, we want to know what it is.

[00:15:47] Speaker 02:
So already, it's already part of the system.

[00:15:50] Speaker 02:
So to me, it's an easy fix.

[00:15:52] Speaker 02:
They have the resources.

[00:15:53] Speaker 02:
They didn't argue otherwise.

[00:15:55] Speaker 02:
What's the fix?

[00:15:56] Speaker 01:
You still haven't answered the question.

[00:15:58] Speaker 02:
I apologize.

[00:15:59] Speaker 01:
What's the fix?

[00:16:01] Speaker 02:
The fix is to put a little box, the questionnaire saying, what are your

[00:16:11] Speaker 02:
What is your education, training, or experience or anything similar that you feel helps you or would qualify you to perform this particular disability evaluation?

[00:16:22] Speaker 02:
If you look at the DBQs there must be, it would be helpful to look at a DBQ which I've cited to get the whole comprehensive questions they have to answer and to have one more

[00:16:38] Speaker 02:
just to make sure we're not talking about guesswork.

[00:16:40] Speaker 01:
And thank you for answering the question.

[00:16:42] Speaker 01:
Let me ask you this question.

[00:16:43] Speaker 01:
If the veteran is not reading all this other information, as you said, why would the veteran read this and on that basis conclude that this doctor is not qualified to render this examination?

[00:17:04] Speaker 02:
The veteran generally does not read.

[00:17:06] Speaker 02:
all the tech, all that.

[00:17:08] Speaker 02:
It's up to the VA to ensure the integrity of its VA disability evasion system.

[00:17:14] Speaker 02:
It's not for disabled veterans to keep the VA honest.

[00:17:19] Speaker 01:
So I guess what I'm asking is how, I understand the fix now, but now explain how the fix fixes the problem.

[00:17:29] Speaker 02:
Okay, for example in this case, if that question were put to what is your, you have a family practice, what

[00:17:36] Speaker 02:
What education, what training or experience do you have in respiratory illness or sarcoidosis?

[00:17:42] Speaker 02:
I think he would have said none.

[00:17:45] Speaker 02:
That would have fixed the problem in a hurry.

[00:17:49] Speaker 02:
He obviously didn't know what he was doing.

[00:17:52] Speaker 05:
You're way past your time.

[00:17:53] Speaker 05:
We'll give you three minutes for reflection.

[00:17:55] Speaker 02:
Okay, I appreciate it.

[00:18:12] Speaker 03:
Good morning, Your Honors.

[00:18:13] Speaker 03:
May it please the Court?

[00:18:15] Speaker 05:
You need to tell us that we as a panel can't change the law.

[00:18:18] Speaker 05:
But that's obviously not what he's asking us to do.

[00:18:20] Speaker 05:
So you can ignore that whole part of the argument.

[00:18:23] Speaker 05:
He's asking us to just tee it up for en banc, I think.

[00:18:26] Speaker 03:
Correct.

[00:18:26] Speaker 03:
Yeah.

[00:18:26] Speaker 03:
We can skip past that the precedent here is binding.

[00:18:32] Speaker 03:
I think we concur on that.

[00:18:35] Speaker 03:
The question that's come up today is, you know,

[00:18:40] Speaker 03:
What does he need to show?

[00:18:42] Speaker 03:
Is there something that has come up since Rizzo that demonstrates that it's wrong?

[00:18:46] Speaker 03:
And to answer your question, you're on a no, nothing.

[00:18:49] Speaker 03:
Mr. Mathis simply disagrees with Rizzo, which is that it had been decided differently back in 2009.

[00:18:55] Speaker 05:
So how does this work in practice?

[00:18:57] Speaker 05:
The board takes a look at this, and I see these DBQs, and it says the board has the right to say you need a specialist.

[00:19:03] Speaker 05:
Correct.

[00:19:05] Speaker 05:
But does the board affirmatively examine those things?

[00:19:09] Speaker 05:
Or only if the veteran says, I think I need a specialist.

[00:19:15] Speaker 03:
I think that even can come up even before that point, Your Honor.

[00:19:19] Speaker 03:
If you ask me how does an individual appear before a specialist, there are multiple opportunities to obtain a specialist.

[00:19:27] Speaker 05:
Right, but the individual is not allowed to be part of that.

[00:19:30] Speaker 05:
And the RO is not allowed to require a specialist.

[00:19:33] Speaker 03:
The RO can require a specialist.

[00:19:34] Speaker 05:
What says right here, that in the absence of a BVA

[00:19:38] Speaker 05:
remand, ROs may not designate qualification requirements for a specialist.

[00:19:47] Speaker 03:
Well, on page 21 of our brief, M21-1, part 3, subpart 4, which is JA62, which is a lot easier to say, specialist examinations or opinions and other conditions can be requested by certain RO employees.

[00:20:02] Speaker 03:
But this goes even back even before that.

[00:20:06] Speaker 05:
DDQ, I just read you that said they can't.

[00:20:09] Speaker 03:
Well, there is certainly a preference to use specialists only in certain cases, Your Honor.

[00:20:15] Speaker 03:
But the Veterans Benefits Administration, which is the part of VA which adjudicates the claim initially, requests exams from the VHA, which is the Veterans Health Administration.

[00:20:27] Speaker 01:
Since FRIZA was decided, the Veterans Administration has issued a directive

[00:20:34] Speaker 01:
that general practitioners should be employed as much as possible, correct?

[00:20:39] Speaker 03:
Yes, I believe that was after RISO.

[00:20:40] Speaker 01:
So maybe that's a circumstance that's happened after RISO that would compel us to want to take a look at this again.

[00:20:47] Speaker 01:
So if a veteran doesn't raise a competency of his medical examiner before the board, then the court of appeals says, we can't hear the appeal.

[00:20:58] Speaker 01:
And we've said that too.

[00:20:59] Speaker 01:
We can't hear the appeal either.

[00:21:01] Speaker 01:
Correct.

[00:21:01] Speaker 01:
The veteran's got to raise a competency of the medical examiner before the board.

[00:21:06] Speaker 01:
Correct.

[00:21:08] Speaker 01:
And as far as I understand the petitioner's case is that the veteran doesn't have a basis, doesn't have the information on which to say, I challenge the competency of my examiner because there's nothing there.

[00:21:25] Speaker 01:
And it seems like they're saying, give us a resume, at least a little CV, a paragraph.

[00:21:31] Speaker 01:
Something where we can look at that and make that initial decision.

[00:21:35] Speaker 01:
What's wrong with that?

[00:21:36] Speaker 01:
Why why shouldn't the veterans administration?

[00:21:39] Speaker 01:
You've got all the information You know the background of the of the doctors that you hire whether they're inside or outside Why not say you know it seems to me to be a really easy fix to say?

[00:21:51] Speaker 01:
Give us a little bit of your background and attached to report under exhibit a

[00:21:58] Speaker 01:
And that seems to resolve to me to be a really significant due process issue that's been raised here before us today.

[00:22:07] Speaker 03:
Well, Your Honor, as this panel was discussing previously with opposing counsel, that isn't an easy fix, providing a CV.

[00:22:15] Speaker 03:
In this case, Dr. Dudek, excuse me, was a general practitioner.

[00:22:20] Speaker 03:
Providing a CV would demonstrate that.

[00:22:23] Speaker 03:
Mr. Mathis says in the last statement before sitting down here,

[00:22:28] Speaker 03:
that if a CV was provided, information provided, it would show that there was pure speculation on the part of Dr. Judith.

[00:22:36] Speaker 03:
What Mr. Mathis is actually arguing is something that Your Honor noted, something tailored to every single case, saying their exact experience with lung conditions, for instance, or heart conditions, or whatever it is.

[00:22:49] Speaker 03:
A CV isn't going to cut the mustard in this situation, Your Honor.

[00:22:53] Speaker 03:
But that's besides the point, because certainly

[00:22:57] Speaker 03:
As you noted earlier, a veteran can get the ball rolling on this and simply ask for a CD, ask for qualifications, just like happened in the Bastion case before this court and the Knorr case.

[00:23:09] Speaker 04:
I'm not sure you're answering the question.

[00:23:10] Speaker 04:
I guess the question really is, why is it hard for the VA or for the medical examiners to write inside of one little box on the DBQ?

[00:23:21] Speaker 04:
I have experience with respiratory illnesses.

[00:23:26] Speaker 04:
I've been practicing as a doctor for 15 years, and although I'm a generalist, I have experience with respiratory illnesses, period.

[00:23:34] Speaker 04:
Some kind of clue, just so that Mr. Mathis knows that the person examining him isn't a dentist.

[00:23:43] Speaker 04:
What's so hard about that from an administrative point of view?

[00:23:48] Speaker 03:
There's nothing hard about writing a couple of sentences, but Your Honor, it would have to be tailored to every single case.

[00:23:55] Speaker 03:
It would have to probably be extended beyond this simple case of medical examiners.

[00:24:01] Speaker 03:
Why would it stop here?

[00:24:02] Speaker 03:
We're not going to use the presumption of regularity for the selection of medical examiners.

[00:24:08] Speaker 03:
What about the selections of the ratings officials?

[00:24:10] Speaker 03:
Are they going to have to provide their qualifications when saying, well, I give this person a 30% rating?

[00:24:15] Speaker 03:
Well, the question is, was that person competent then to provide a 30% rating?

[00:24:19] Speaker 01:
There's a vast difference between

[00:24:21] Speaker 01:
an administrative bureaucrat rendering an administrative decision on level of disability as opposed to medical opinion.

[00:24:32] Speaker 03:
I would disagree with where the presumption is here, Your Honor.

[00:24:35] Speaker 03:
The presumption is not with the actual job title, as this Court has said in parts, with the actual doctor with his job title.

[00:24:44] Speaker 03:
The presumption lies with the individual, the VHA, who selected

[00:24:48] Speaker 03:
that doctor.

[00:24:49] Speaker 03:
That's where the presumption of regularity attached.

[00:24:52] Speaker 03:
So it is the same administrative task of selecting the individual doctor.

[00:24:56] Speaker 01:
Presumably when the doctor's selected by the VA, they do it on the basis.

[00:25:01] Speaker 01:
They're not just selecting anybody.

[00:25:03] Speaker 01:
Dentists, for example, correct?

[00:25:05] Speaker 01:
They're reviewing some information.

[00:25:08] Speaker 03:
If you're asking about qualifications and certifications for these individual doctors, these aren't people off the street, Your Honor.

[00:25:14] Speaker 03:
They are people who have to have certain training.

[00:25:16] Speaker 03:
to be VA doctors, to keep certified as VA doctors.

[00:25:22] Speaker 03:
And then we have individuals at VHA whose job it is to select a VA doctor, excuse me, doctors for these compensation and pension plans.

[00:25:30] Speaker 03:
At that point, that's where the presumption is attaching.

[00:25:33] Speaker 05:
You know, maybe part of the problem is that bad facts make bad law, but you have some bad facts here.

[00:25:38] Speaker 05:
I mean, having presided over a lot of asbestosis exposure cases at a lot of

[00:25:44] Speaker 05:
cigarette cases.

[00:25:45] Speaker 05:
I know that every defendant in an asbestosis case says, well, he also smoked.

[00:25:51] Speaker 05:
And every defendant in a smoking case says, well, he also was exposed to asbestosis.

[00:25:56] Speaker 05:
And it is a very, very detailed, careful analysis, very sophisticated, complex analysis that has to go on to determine which is the most likely cause.

[00:26:08] Speaker 05:
And what you have here is an opinion that just says,

[00:26:11] Speaker 05:
Yeah, he smoked a lot.

[00:26:12] Speaker 05:
I think it's more likely his smoking.

[00:26:14] Speaker 05:
There was not much analysis.

[00:26:16] Speaker 05:
He had a lot of exposure to asbestos.

[00:26:19] Speaker 03:
I would respectfully disagree with Your Honor's recitation of the facts here.

[00:26:23] Speaker 03:
We're looking at the board opinion, which is JA, I'd say starting around 55 to around 59, goes heavily into the facts here, Your Honor.

[00:26:36] Speaker 03:
What was actually needed to be shown?

[00:26:38] Speaker 03:
Now, again, we're getting into the facts, and there is no jurisdiction of this court to review the actual findings of no sarcoidosis, a service connection for sarcoidosis in the case.

[00:26:48] Speaker 03:
But just to give you comfort, Your Honor.

[00:26:49] Speaker 03:
Well, I understand that.

[00:26:49] Speaker 05:
But if part of your response to the question of whether there should be a change is that it's too complicated or there won't be a practical difference, I think it's fair for us to look at the practical side of this case.

[00:27:00] Speaker 03:
Practically, a veteran can always challenge the adequacy of the decision.

[00:27:05] Speaker 01:
On what basis?

[00:27:07] Speaker 01:
If they show up, if a veteran says, I challenge the adequacy of my medical examiner, well, it seems to me the VA is going to say, well, on what basis?

[00:27:16] Speaker 01:
You have no argument.

[00:27:17] Speaker 03:
Well, I think we're talking at this point of the adequacy of the actual medical exam itself.

[00:27:22] Speaker 01:
Judge Amali was concerned.

[00:27:24] Speaker 01:
He says, I have a very unique disease, and you've assigned a nurse to examine me.

[00:27:32] Speaker 01:
Is that all he has to say?

[00:27:33] Speaker 01:
It's a nurse?

[00:27:34] Speaker 03:
Well, in Parks, Your Honor, the case did say that there would have to be an argument that all nurse practitioners, for instance, are not qualified to give an opinion, or this specific nurse practitioner is not qualified for.

[00:27:54] Speaker 03:
Bastian did say that there needs to be a because.

[00:27:56] Speaker 03:
It's not simply this individual isn't competent.

[00:27:59] Speaker 01:
And that's Bob's point.

[00:28:00] Speaker 01:
There is a because.

[00:28:02] Speaker 01:
It seems to me the veteran doesn't have the basis, the information available to them to make the because.

[00:28:09] Speaker 03:
Well, not yet.

[00:28:10] Speaker 03:
But we are certainly, as you noted, the status quo currently fixes the problem because right now the veteran can say, I would like to see a CV.

[00:28:18] Speaker 03:
I would like to see qualifications.

[00:28:20] Speaker 03:
Why didn't I meet with a specialist?

[00:28:22] Speaker 03:
At that point, the VA will provide information or at least say reasons and basis why not providing information.

[00:28:29] Speaker 03:
And then the veteran can use that information provided by the VA to formulate a because if a because actually exists.

[00:28:38] Speaker 03:
As this court has previously said, just receiving a CV isn't necessarily enough to lodge an objection because once you get that CV, you might say, oh, wow, this guy actually is qualified to hear my medical exam.

[00:28:54] Speaker 03:
So there won't actually be an objection in every single case where somebody asks for a CV.

[00:28:59] Speaker 03:
But certainly the status quo as it is now, once somebody needs to ask for CV or qualifications, looking at Bastion, looking at NOR, it appears that they receive these qualifications.

[00:29:10] Speaker 03:
And then, losing my voice, excuse me.

[00:29:17] Speaker 03:
In situations like NOR, where the doctor also says something along the lines of a personal limitation, there's more clues that something's wrong when it appears irregular.

[00:29:27] Speaker 01:
If the veteran says, I want to see the qualifications of the nurse practitioner, that's all they have to say, and you're saying the verdict shares to the VA to supply that information?

[00:29:40] Speaker 03:
Or at least say why they were not supplying in that situation's reasons and basis.

[00:29:44] Speaker 01:
Doesn't the veteran have to do more than that?

[00:29:46] Speaker 03:
To actually object, yes.

[00:29:49] Speaker 03:
To lodge an objection underbashing, you need to do more than just ask, but once there's

[00:29:54] Speaker 03:
They get the ball rolling by asking originally.

[00:29:56] Speaker 01:
I guess that's my point.

[00:29:56] Speaker 01:
There's no information there upon which to base the ask.

[00:30:04] Speaker 01:
The veteran can't say, I don't think the nurse practitioner is competent because she barely got out of law school last year, medical school, or nursing school, rather.

[00:30:15] Speaker 01:
She got out of nursing school last year.

[00:30:17] Speaker 01:
I mean, the veteran doesn't even have that information, which a VA would probably reveal.

[00:30:23] Speaker 03:
Yes, and basically what it is right now, the status quo, is a two-step process.

[00:30:28] Speaker 03:
It's not a single-step process, which I think is the concern you're voicing right now.

[00:30:32] Speaker 03:
You ask for the qualifications, you see the qualifications, and then lodge an objection if the qualifications show there's some reason to object.

[00:30:42] Speaker 01:
If the veteran asks, just simply says, I'd like to see the qualifications and the VA will supply it,

[00:30:48] Speaker 03:
Well, according to Bastion and Noor, that is what's occurring.

[00:30:50] Speaker 03:
I don't have information about every single instance in front of me, Your Honor, and I'm not aware of any policy that says that, but it has happened in one case before this court and at least one that I can think of before the Veterans Court.

[00:31:02] Speaker 04:
But we could say in an opinion, it's our understanding that the VA's current practices every single time a veteran

[00:31:08] Speaker 04:
requests for information about the medical examiner.

[00:31:11] Speaker 03:
The VA does supply it.

[00:31:13] Speaker 03:
I'm stepping back from that, Your Honor.

[00:31:14] Speaker 03:
I want to be very clear.

[00:31:15] Speaker 03:
I don't know of any policy.

[00:31:16] Speaker 03:
I don't know how it happens in every case.

[00:31:18] Speaker 03:
What I'm saying is in Bastion, and nor it certainly happened.

[00:31:21] Speaker 03:
Well, what would prevent it from happening?

[00:31:27] Speaker 03:
I can't think of an example off the top of my head why they would not provide a CD in a certain case.

[00:31:34] Speaker 04:
I can... But I guess getting to Judge Raina's point,

[00:31:38] Speaker 04:
It's a black box from the veteran's point of view.

[00:31:41] Speaker 04:
He has no idea if he's got a respiratory illness and it's a dentist that's next to him examining him, unless he knows that information first.

[00:31:51] Speaker 04:
He doesn't even know to ask for the CV of the dentist and then realize, oh my gosh, I've got a tooth expert looking at my lungs.

[00:31:59] Speaker 03:
Well, certainly in your example, Your Honor, I think that's really akin to the wise case.

[00:32:03] Speaker 03:
In the wise case, we had a situation, and that's before the Veterans Court,

[00:32:07] Speaker 04:
We're in a situation where we have... Well, there would be nothing in the medical examination report to indicate that the medical examiner is a dentist in my hypothetical.

[00:32:14] Speaker 04:
And so the veteran would have no idea even to challenge the competency of the examiner or even ask for the medical background.

[00:32:25] Speaker 03:
Well, I think the likely scenario of that case is the opinion would probably be inadequate on its face if it was somebody so horribly not qualified, Your Honor.

[00:32:36] Speaker 03:
One way to look at this is that the only cases we see here are cases where the veteran disagrees.

[00:32:42] Speaker 03:
There are many cases every day where a medical examiner comes back with a positive decision for a veteran, and they walk away with the veteran's benefits that they believe they deserve.

[00:32:53] Speaker 03:
In those situations, the RO and everybody else who's looking at this is also considering that the presumption of competency applies to the specific examiner.

[00:33:04] Speaker 03:
So it does help veterans in certain cases, Your Honor.

[00:33:07] Speaker 03:
So there is a positive side to this.

[00:33:09] Speaker 03:
I'm not sure what you're saying.

[00:33:10] Speaker 04:
Are you saying there are times where incompetent medical examiners are granting benefits to veterans, and so therefore we should take that into account?

[00:33:18] Speaker 03:
No, Your Honor.

[00:33:19] Speaker 03:
I think what I'm saying is that there are situations where a veteran receives a positive decision that an adjudicator might look at and say, well, I don't know if I would have decided that, but they stick to the competence of the actual

[00:33:33] Speaker 03:
I presume the confidence of the actual medical examiner.

[00:33:36] Speaker 03:
I don't know of any specific cases where it's come up later, whether it's been pro-veteran or anti-veteran, where it's turned out post-hoc that a dentist looked at something, a footed condition or so on, something so absurd as that situation.

[00:33:52] Speaker 03:
I'm not aware of any situations.

[00:33:54] Speaker 03:
It hasn't been cited by a palate or myself.

[00:33:57] Speaker 03:
What I am certain of, Your Honor, is that at any point here, the veteran can challenge the adequacy of the decision.

[00:34:06] Speaker 03:
And that's exactly what happened here.

[00:34:07] Speaker 05:
When you say at any point, you said in your red brief at one point that they can challenge it even at the Veterans Court.

[00:34:11] Speaker 05:
But that's not actually true, is it?

[00:34:14] Speaker 03:
I'm sorry, your challenge with the adequacy?

[00:34:15] Speaker 05:
Yes.

[00:34:16] Speaker 03:
Well, there could be a waiver issue.

[00:34:19] Speaker 03:
Yeah, yeah, sure.

[00:34:20] Speaker 03:
I'm sure you would claim waiver.

[00:34:21] Speaker 03:
Right, right.

[00:34:22] Speaker 03:
Yeah, I misspoke there.

[00:34:24] Speaker 03:
It's at the board.

[00:34:24] Speaker 03:
You have to challenge.

[00:34:25] Speaker 03:
But you can certainly, and in this case, there was a challenge to the adequacy saying that there was a chronic condition.

[00:34:33] Speaker 03:
But if you look at page 59 of the Joint Appendix, the board found that there was no chronic condition here based upon the standards, which are different than the standards of asbestos litigation in your honor.

[00:34:45] Speaker 03:
proving whether there was a chronic condition that stemmed from service.

[00:34:49] Speaker 03:
The analysis is all on page 55 to 59 of the Board of the Joint Appendix, which is the Board opinion.

[00:34:56] Speaker 03:
So the adequacy here, even checking to see whether there was chronic or sarcoidosis, that was already resolved factually.

[00:35:05] Speaker 03:
Mr. Mathis, in his brief, argues the opposite, saying that it was inadequate based on the exact opposite of the finding of the Board.

[00:35:14] Speaker 03:
So it's already been resolved whether it is a factual or not.

[00:35:17] Speaker 01:
Just to be clear, if a veteran was to say, I have a chronic disease, I have a rare disease, and my doctor was a general practitioner, is that enough to have the VA show the competency or provide additional information?

[00:35:36] Speaker 03:
Before the board, if that's what they say,

[00:35:39] Speaker 03:
They make the argument that I have a rare disease, and I was seen by a generalist.

[00:35:43] Speaker 03:
So that generalist is not qualified, Your Honor.

[00:35:44] Speaker 03:
Is that the objection?

[00:35:47] Speaker 03:
Well, if the VA is not going to treat that as a swapping of the burden, then they probably need to provide reasons and bases.

[00:35:56] Speaker 03:
I think that that could be a logical objection on the part of the... If they object, then what happens?

[00:36:04] Speaker 01:
Will the board provide the information?

[00:36:07] Speaker 01:
When the burden shifts.

[00:36:08] Speaker 01:
you haven't given me a reason to give you the information.

[00:36:12] Speaker 03:
There are situations where they could say you haven't given me a reason.

[00:36:15] Speaker 03:
For instance, somebody could be basing it on prejudice.

[00:36:17] Speaker 01:
That's what we have today, right?

[00:36:18] Speaker 01:
We have this presumption of irregularity.

[00:36:20] Speaker 01:
I'm not going to give you a reason because we presume that any doctor we assign is competent and it's done within the normal course of business here, so we don't owe you anything.

[00:36:32] Speaker 01:
That's what's happening, isn't it?

[00:36:34] Speaker 03:
Well, the record doesn't show what's happening on a daily basis here, Your Honor.

[00:36:38] Speaker 03:
If somebody comes up and says, I believe my doctor was not qualified because of some prejudice they state, because they didn't like the doctor in particular because of their race or gender or something along those lines, I could see a situation where the VA says, well, we're not going to respond to that.

[00:36:54] Speaker 03:
We're going to provide reasons in basis saying that that's just a prejudice.

[00:36:58] Speaker 03:
But if they come up with a specific

[00:37:01] Speaker 03:
objection saying, hey, you sent me to a general practitioner and I'm suffering from a hearing condition, an eye condition, and I think that that person wasn't qualified.

[00:37:10] Speaker 03:
At that point, the VA has at least an obligation to say why they don't think the burden has shift.

[00:37:17] Speaker 03:
But I think at that point it's probably a logical objection that has actually been raised by the individual and the burden shifts.

[00:37:24] Speaker 03:
And it's the VA's obligation at that point to show the qualifications.

[00:37:28] Speaker 03:
At that point, they should be writing

[00:37:30] Speaker 03:
the paragraph discussing what the qualifications of that individual general practitioner.

[00:37:34] Speaker 03:
Do they know about hearing?

[00:37:35] Speaker 03:
Do they know about vision?

[00:37:36] Speaker 03:
Okay.

[00:37:37] Speaker 03:
Thank you, Your Honor.

[00:37:38] Speaker 05:
I let you go over because I let Mr. Lippmann go over, but we need to move on.

[00:37:42] Speaker 05:
All right, Mr. Lippmann, three minutes.

[00:37:45] Speaker 02:
A couple quick points.

[00:37:48] Speaker 02:
One, he was saying that the government mentioned that if we don't have a presumption of competency for

[00:37:58] Speaker 02:
medical experts or medical thing, then it's going to cut all across the board for rating specialists and whatnot.

[00:38:04] Speaker 02:
If you look at pages 14 and 15 of my reply brief, I respond to that.

[00:38:08] Speaker 02:
It's clear that VA physicians and all physicians assume the role of a witness when they are used in the VA system.

[00:38:19] Speaker 02:
And as witnesses, they have to show some level of competency, whereas a rating specialist or some other

[00:38:25] Speaker 02:
other member of the adjudicator party does not perform that role.

[00:38:31] Speaker 02:
Are there any questions at all?

[00:38:36] Speaker 05:
Do you agree that RO personnel can ask for a specialist?

[00:38:41] Speaker 02:
My understanding is that they can request it, but they can't require it.

[00:38:48] Speaker 02:
I've dealt with a lot of

[00:38:51] Speaker 02:
decision review officers, which are sort of rating specialists, but on the appellate level.

[00:38:56] Speaker 02:
And they say that it's really, we can ask for it, but it's whether we get it, it's out of our hands.

[00:39:06] Speaker 02:
Part of the problem here is just there's no transparency in this whole process.

[00:39:10] Speaker 02:
There's so much mystery.

[00:39:13] Speaker 02:
And I'd like to see just a little bit of visibility to the process.

[00:39:19] Speaker 02:
If there's no more questions,

[00:39:21] Speaker 05:
All right, thank you.

[00:39:23] Speaker 05:
Cases will be submitted.

[00:39:24] Speaker 05:
This court is adjourned.

[00:39:27] Speaker 03:
All rise.

[00:39:28] Speaker 03:
The honorable court is adjourned until tomorrow morning at 10 o'clock AM.