Duty to Impair: Failure to Adopt the Federal Rules of Evidence Allows the VA to Rely on Incompetent Examiners and Inadequate Medical Examinations

Abstract

“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.” – Justice Neil Gorsuch

In establishing the Department of Veterans Affairs (VA) benefits system, Congress created a paternalistic and non-adversarial process. With that focus, Congress established the VA’s duty to assist, where the VA must assist veterans throughout the process to enable them to represent themselves. In many circumstances, the VA’s duty to assist requires it to provide an adequate medical examination and opinion for veterans in pursuit of VA benefits, also known as a Compensation and Pension (C&P) examination. C&P examinations are an essential tool that the VA uses to make decisions on whether a veteran is entitled to service-connected disability benefits. This tool, however, goes unchecked, which leads to denials of significant benefits that have ramifications throughout a veteran’s life. The VA does not require its C&P examiners to have any significant training or specialty to evaluate a veteran.

Further, the VA rarely evaluates, or even has access to, the C&P examiner’s expertise in the area. For instance, the VA allows an oncologist, general practitioner, podiatrist, or nurse practitioner to opine as to the likelihood that a veteran’s lung cancer relates to their exposure to burn pits in Iraq. Regardless of the training and expertise, the VA presumes the competence of the nurse practitioner’s opinion. Due to the lack of information about the examiner, veterans are not in a position of power to raise the question of the competency of the C&P examiner or adequacy of the examination.

This Article proposes that the VA fully adopt the Federal Rules of Evidence 104(a) (Preliminary Questions), 702 (Testimony of Expert Witnesses), and 403 (Excluding Evidence for Prejudice, Confusion) to allow both the VA and veterans to understand the value of the C&P examination and allow the removal of the examination from the file. The use of these rules will require the VA to administer every proceeding fairly by properly evaluating the evidence, rather than simply relying on the medical opinion of a C&P examiner.

Keywords: veterans, C&P examinations, Federal Rules of Evidence, medical opinions