Glossary

This is a glossary of terms related to Department of Veterans Affairs (VA) compensation and pension examinations (C&P exams) for posttraumatic stress disorder (PTSD) and other mental disorders. 

Many of these words or phrases are legal terms, which most of us do not understand at first. Hopefully, this glossary will enhance your comprehension of veterans law as it relates to C&P exams for PTSD and other mental disorders.

At least the legal language not as indecipherable as something written in Anglo-Saxon runes. ;^)


Anglo-Saxon RunesAnglo-Saxon "futhorc" runes. License: CC BY-SA 4.0


P

Presumption of competence for VA compensation and pension examiners - The Department of Veterans Affairs (VA) does not need to demonstrate a C&P examiner's qualifications or competence for a claim being heard by the Board of Veterans Appeals, unless the veteran questions the examiner's competence.

  • Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) ("Absent some challenge to the expertise of a VA expert, this court perceives no statutory or other requirement that VA must present affirmative evidence of a physician’s qualifications in every case as a precondition for the Board’s reliance upon that physician’s opinion. Indeed, where as here, the veteran does not challenge a VA medical expert’s competence or qualifications before the Board, this court holds that VA need not affirmatively establish that expert’s competency.").

  • See also Bastien v. Shinseki, 599 F.3d 1301, 1306–1307 (Fed. Cir. 2010) (The veteran must specifically challenge the examiner's competence, and the veteran "... must set forth the specific reasons why the litigant concludes that the expert is not qualified to give an opinion.").

  • Cf. Francway v. Wilkie here on PTSDexams.net ("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's education, training, and experience. At a minimum, an appellant-veteran or their attorney will request the examiner's curriculum vitae (CV) or résumé.")

  • Contra Mathis v. McDonald, 834 F.3d 1347, 1353 (Fed. Cir. 2016) (Reyna, J., dissenting from denial of rehearing en banc) ("... the court leaves in place a judicially created evidentiary presumption that in application denies due process to veterans seeking disability benefits. The presumption, that the Veterans Administration ordinarily and routinely selects competent medical examiners as a matter of due course, was created void of any evidentiary basis. Its application has resulted in a process that is inconsistent with the Congressional imperative that the veterans’ disability process be non-adversarial, and that the VA bears an affirmative duty to assist the veteran.").

  • See also Mathis v. Shulkin, 137 S.Ct. 1994, 1995 (2017) (Gorsuch, J., dissenting) ("Lower courts often presume that Department of Veterans Affairs medical examiners are competent to render expert opinions against veterans seeking compensation for disabilities they have suffered during military service. The VA appears to apply the same presumption in its own administrative proceedings. ¶ But where does this presumption come from? It enjoys no apparent provenance in the relevant statutes. There Congress imposed on the VA an affirmative duty to assist — not impair — veterans seeking evidence for their disability claims. See 38 U.S.C. § 5103A(a)(1). And consider how the presumption works in practice. The VA usually refuses to supply information that might allow a veteran to challenge the presumption without an order from the Board of Veterans' Appeals. And that Board often won't issue an order unless the veteran can first supply a specific reason for thinking the examiner incompetent. No doubt this arrangement makes the VA's job easier. But how is it that an administrative agency may manufacture for itself or win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the interests of those the law says the agency is supposed to serve?").


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