Thursday, July 8, 2010

Precendent setting CAVC cases that may affect your VA claim

Rightardia has discussed the importance of the VA examination. if you miss the appointment, it is likely you claim will be thrown out altogether. Rightardia has also advised  vets to get an alternative C&P exmination because you may not be treated fairly by the C&P doctor. 

You should also formally challenge the C&P doctors credentials according to a recent CAVC Rizzo v. Shinseki court ruling. Please check the blog used as the source. It contains several precedent setting rulings that could affect you particular claim. 
November 16th 2009
The Case For Review:

Case: Rizzo v. Shinseki, CAVC No. 07-0123; Fed. Cir. No. 2009-7026

BVA Decision: October 13, 2006

CAVC Decision: August 26, 2008

Fed. Cir. Decision: September 8, 2009

Key Issue(s):

(1)  Whether the VA has to produce some evidence of the qualifications and expertise of a VA physician who submits an opinion that the Board relies on in denying a claim.

(2)  Whether the veteran received due process when his claim was repeatedly denied with an altered medical document in the claims file.

Law: 38 U.S.C. § 5103A; Federal Rules of Evidence

What was decided:

(1) The Court decided that unless a veteran challenges the expertise of a VA physician or other witness, VA is not required to present any evidence of the qualifications of that person. 

(2) A VA official’s position in the government allows VA and the courts to assume that the official does his job correctly unless there is clear evidence otherwise.

What this means to veterans:

Veterans have little, if any, say in which physicians or other persons VA assigns to perform examinations and submit opinions on the veteran’s claim.  This case makes very clear that to question or challenge the expertise of the VA person submitting evidence, a veteran must raise the a challenge at the regional office or Board level. Waiting until an appeal to the Veterans Court is too late and VA will be able to assume the individual is an expert and did everything correctly.

As a practical matter, a challenge to the education, knowledge, experience, or training of a VA “expert” should

(1) be in writing;

(2) submitted to the regional office or Board;

(3) clearly state that the veteran is challenging the expertise of the individual to provide evidence in the case;


(4) request “affirmative evidence” that establishes the individual’s competence and qualifications to provide the expert evidence submitted. 

The veteran should also describe the reasons for questioning the individual’s expertise, such as, little or no experience with the veteran’s condition, an incomplete examination, errors in the examination report, specific statements made by the individual or other raising doubts about the individual’s expertise. 


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