Case law refers to precedential (sets a precedent)1 opinions by federal courts of appeal, which for veterans disability claims are these three courts:
Precedential opinions by these federal appellate courts are binding (must be followed) by lower courts, the Board of Appeals for Veterans Claims, and the Department of Veterans Affairs.
Francway v. Wilkie (Fed. Cir. 2019)
- Key Points for C&P Examiners
- Why is Francway v. Wilkie Important?
- Other Information?
- En Banc, Sua Sponte, & "Footnote 1"
- Procedural History of Francway v. Wilkie
- Listen to the Oral Arguments
Francway v. Wilkie, No. 2018-2136 (Fed. Cir. October 15, 2019) (en banc).
... the CAVC has held that credentials are a factor that lay adjudicators can consider in weighing conflicting medical opinions, and there is no reason that physicians could not include a summary of their credentials in an opinion to help provide greater clarity in how the opinion should be weighed against conflicting medical or lay opinions. (footnote omitted)
I make this recommendation (to post your CV online and include a link to it in your reports) to save time for all concerned.
However, you should probably check with your "chain-of-command" (VA employees) or corporate office (contracted examiners) and seek approval first.
Naturally, I encourage VA and the MDE (medical disability examination) contract companies to approve such a practice since it will save time for everyone, particularly for the veteran and his or her family.
Although changing the content of "Footnote 1" in the Federal Circuit's opinion is important (see below), an equally important aspect of this decision—which was in the original three-judge panel decision—is that:
Here is the relevant section of the Court's opinion:4
... once the veteran raises a challenge to the competency of the medical examiner, the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner’s qualifications.
The Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion.
Since the veteran is obligated to raise the issue in the first instance, the veteran must have the ability to secure from the VA the information necessary to raise the competency challenge.
Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA’s duty to assist. See 38 U.S.C. § 5103A; ....
The VA agrees with this interpretation of the presumption of competency and the VA’s duties.
(citations omitted; paragraph breaks and emphasis added to facilitate online reading)
"... the veteran has the right ... to the curriculum vitae and other information about qualifications of a medical examiner."4
It remains to be seen:
(a) what "other information" veteran-appellants will request about examiners;
(b) what the VA will think is reasonable information to provide; and
(c) how subsequent court decisions might interpret the phrase.
The only thing I know for sure at this point is that the requested information must pertain to the examiner's competency, not to the adequacy (probative weight) of the exam report.5
En Banc, Sua Sponte, & "Footnote 1"
A three-judge panel of the Federal Circuit first decided this case on 23 Jul 2019.6
This case is interesting in part because the appellant (Mr. Francway) had requested an en banc ("before the entire court")7 hearing on 3 Oct 2019, however, the three-judge panel denied that request.
But the Court subsequently decided sua sponte ("on its own")8 to hold a rehearing en banc, and as a result the Court withdrew the prior (23 Jul 2019) decision and replaced it with the 15 Oct 2019 en banc decision. The only thing that changed was "Footnote 1", although it was an important change.
Here is "Footnote 1" from the three-judge panel decision issued on 23 Jul 2019:
“Although only the court en banc may overrule a binding precedent, a party may argue, in its brief and oral argument, to overrule a binding precedent without petitioning for hearing en banc. The panel will decide whether to ask the regular active judges to consider hearing the case en banc.” Fed. Cir. R. 35(a)(1) (emphasis added).
Thus, the three-judge panel essentially told the veteran, "sure you can argue that the Court should overrule those 'presumption of competence' cases, but we get to decide whether or not the full court should consider your argument. We don't think they should. Case closed, you lose." (Yes, I'm being a bit flippant to make a point.)
But the Court's decision9 to rehear the case en banc led to a change in "Footnote1".
Here is the revised "Footnote 1" from the en banc decision issued on 15 Oct 2019:
The en banc court formed of PROST, Chief Judge, NEWMAN, LOURIE, DYK, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES, and STOLL, Circuit Judges, has determined that to the extent that the decision here is inconsistent with Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010), those cases are overruled. We note that in the future, the requirement that the veteran raise the issue of the competency of the medical examiner is best referred to simply as a “requirement” and not a “presumption of competency.”10
Thus, it seems the other judges persuaded the panel that the Court should make it crystal clear that if the court's previous decisions (Rizzo and Bastien) differ from Francway, the opinion in the previous case is overruled.
Procedural History of Francway v. Wilkie
Procedural history of Francway v. Wilke (2019) from FedCircuitBlog.co
SELECTED PROCEEDINGS AND ORDERS
October 3, 2018
Appellant's Petition for Hearing En Banc
October 9, 2018
Appellant's Principal Brief
November 7, 2018
Response to Petition for Hearing En Banc
November 28, 2018
Order Denying Petition for Hearing En Banc
December 19, 2018
Brief for Respondent-Appellee
January 16, 2019
Appellant's Reply Brief
January 1, 1970
June 6, 2019
Panel Oral Argument
July 23, 2019
October 15, 2019
Order Sua Sponte Granting Rehearing En Banc
October 15, 2019
En Banc Opinion
Be sure to consult the original table on FedCircuitBlog.co for links to each of the documents listed in the table above.
Listen to the Oral Arguments
You can listen to the oral arguments (26 Jun 2019) before the Francway v. Wilkie three-judge panel at any of the following URLs. (These oral arguments preceded the 23 Jul 2019 panel decision.)6
Simply copy-and-paste the URL into your browser window.
(download mp3 file from court website)
(multiple file types available)
(listen online or download mp3 file)
1.Oxford English Dictionary, 3rd ed. (Oxford, UK: Oxford University Press, March 2007), https://oed.com/view/Entry/149579 ("precedential, adj. 1. Of the nature of or constituting a precedent; providing a guide or rule for subsequent cases.")
2. James D. Ridgway, "Mind Reading and the Art of Drafting Medical Opinions in Veterans Benefits Claims", Psychological Injury and Law 5, no. 1 (March 2012): 78.
3. Duty to assist claimants, U.S.C. § 5103A (2018).
4. Francway v. Wilkie, No. 2018-2136, slip op. at 8 (Fed. Cir. October 15, 2019) (en banc).
5. Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of reh'g en banc) (“... whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries.” ).
6. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019) withdrawn, replaced by Francway v. Wilkie, No. 2018-2136 (Fed. Cir. October 15, 2019) (en banc).
7. Oxford English Dictionary, 3rd ed. (Oxford, UK: Oxford University Press, September 2017), https://oed.com/view/Entry/56701627 ("en banc, adv. and adj., Law (chiefly U.S.). A. adv. With all ... of the judges of a court present; before or by the full bench. A sitting en banc is typically held by an appeal court in order to review decisions made by a panel of its members. Some courts (e.g. the Supreme Court of the United States) traditionally hear all cases referred to them en banc.")
8. Wiktionary, https://en.wiktionary.org/wiki/sua_sponte, "sua sponte - (law) Without prompting or suggestion; on its own initiative. Usage notes: Usually used when the court issues an order or otherwise acts without being petitioned to do so."
9. Francway v. Wilkie, sua sponte reh'g en banc No. 2018-2136, Order (Fed. Cir. October 15, 2019) (per curiam).
10. Francway v. Wilkie, No. 2018-2136, slip op. at 5 (Fed. Cir. October 15, 2019) (en banc).
Ridgway, James D. "Mind Reading and the Art of Drafting Medical Opinions in Veterans Benefits Claims." Psychological Injury and Law 5, no. 1 (March 2012): 72–87. https://doi.org/10.1007/s12207-012-9119-6 (publisher website) | https://perma.cc/2TPY-7L2D (PDF)
What Do You Think?Google Sign-in icon
I value your feedback!
If you would like to comment, ask questions, or offer suggestions about this page, please feel free to do so. Of course, keep it clean and courteous.
You can leave an anonymous comment if you wish—just type a pseudonym in the "Name" field.
If you want to receive an email when someone replies to your comment, click the Google Sign-in icon on the lower right of the comment box to use Google Sign-in. (Your email remains private.)Comment Box is loading comments...