Mind Reading and the Art of Drafting Medical Opinions in Veterans Benefits Claims
5 Psych. Injury & Law 72 (2012)
17 Pages Posted: 3 Dec 2011 Last revised: 1 Oct 2014
Date Written: December 2, 2011
Once upon a time, deciding veterans benefits claims was simple and logical, although not perfect. Prior to the institution of judicial review, when a veteran filed a disability claim, the relevant records would be gathered and given to a panel of medical and legal experts. The experts would each bring their own specialized knowledge to the discussion and issue a decision that applied medical science and applicable law to the facts of the case. Such decisions may well have been correct as to the science and the law, but they were impossible to verify in the absence of any stated rationale. In practice, there were substantial doubts about whether the decision-making process was living up to its ideal, and Congress ultimately responded to political pressure by passing the Veterans Judicial Review Act. Once judicial review was instituted, it was necessary to disband these panels of experts in order to separate the evidence in a case from the application of the law to it. Unfortunately, this necessity was not foreseen by Congress and the re-engineering of the system caused by the disbandings occurred through ad hoc responses to decisions of the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Appeals for Veterans Claims (CAVC). This has produced a disjointed system that unnecessarily fragments the evidence-gathering system in a way that is both inefficient and prone to error. The outcome is a system in which the most common errors are due to inadequate medical evidence. Unfortunately, there is no reform on the horizon that would replace the current system. Until reform is enacted, producing a high-quality medical opinion that is adequate for making a final decision on a veterans benefits claim will often require a bit of mind reading on the part of the examiner to anticipate all the information that an adjudicator might need. The purpose of this article to assist those involved in VA’s currently sub-optimal evidence gathering system in producing better results under the current regime.
Keywords: veterans, disability, medical, expert, evidence
Suggested Citation: Suggested Citation