Case Law

Case law refers to precedential (sets a precedent)1 opinions by federal courts of appeal, which for veterans disability claims are these three courts:

  • Court of Appeals for Veterans Claims
  • Court of Appeals for the Federal Circuit
  • Supreme Court of the United States

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.

Contents

Francway v. Wilkie (Fed. Cir. 2019)
- Citation
- 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
- Footnotes

Bibliography

Recent Case Law

Francway v. Wilkie

Citation

Francway v. Wilkie, No. 2018-2136 (Fed. Cir. October 15, 2019) (en banc).

Key Points for C&P Examiners

  • Veterans who appeal a VBA claim decision to the Board of Veterans Appeals will increasingly raise the question of examiner competence and request information about the examiner, e.g., the examiner's curriculum vitae (CV) or résumé.

  • Examiners should assume that appellant-veterans will request information about the examiner's education, training, and experience. At a minimum, an appellant-veteran or their attorney will request the examiner's CV.

  • Examiners might consider posting their CV online and include a URL for their CV in their C&P exam report. I started doing that in 2013 after reading law professor James Ridgway's excellent article2 on writing disability exam opinions in which he noted:

... 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.


Why is Francway v. Wilkie Important?

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:

  • when the veteran-appellant requests information about the examiner, the VA must respond promptly to this request;

  • VA must produce the examiner's curriculum vitae "... and other information about qualifications of a medical examiner";

  • this right is required by the VA's duty to assist—this duty comes from a statute passed by Congress and signed by the President,3 not merely a regulation written by the Department of Veterans Affairs.

  • the "burden of persuasion" falls on VA to convince the Board of Veterans Appeals that the examiner was competent to provide the expert witness opinion(s) in the case; and 

  • the Board must explain in a clear and complete manner whether or not the examiner was competent to provide the opinion(s) and why the Board reached that conclusion.

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 assistSee 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)


Other Information?

"... 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 Bastiendiffer 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

DATE

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

Joint Appendix

June 6, 2019

Panel Oral Argument

July 23, 2019

Panel Opinion

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.

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2018-2136.mp3
(download mp3 file from court website)

https://archive.org/details/gov.uscourts.cafc.2018-2136
(multiple file types available)

https://www.courtlistener.com/audio/63937/francway-v-wilkie/
(listen online or download mp3 file)


See also ...

  • Veterans Law Information

    Veterans law information specific to disability benefits and compensation and pension exams for PTSD and other mental disorders

  • Law Review Articles

    Law review articles relevant to veterans disability benefits and compensation and pension exams for PTSD and other mental disorders.


Footnotes

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 bancadv. 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).



Bibliography

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)



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