Military Veterans' Lawyer Blog

Recent U.S. Court of Appeals for Veterans Claims (CAVC) cases have clarified how medical opinion evidence must be considered. These decisions did not have any impact on current Department of Veterans Affairs regulatory language, but they have made it clear how the CAVC will handle decisions made based on medical opinion evidence.

CAVC has held that the probative value (the weight to be given) of a medical opinion rests primarily in the examiner’s reasoning or rationale. CAVC held that private medical opinions cannot be discounted based on a lack of review of the veterans DVA claims file. CAVC further indicated that a DVA examination is not accorded greater probative value simply based on review of the claim folder.

However, CAVC did hold that DVA DOES NOT have a general duty to inform every claimant providing a private medical opinion of the availability of the DVA claim folder. In other words, DVA’s failure to inform the claimant that the claim folder is available for review by the private physician is not sufficient to reverse a denial based on lack of sufficient reasoning/rationale by the private physician.

CAVC indicates it is the claimant’s responsibility to ensure the private physician is provided with all of the pertinent medical evidence/facts before formulating a medical opinion. In other words, if you plan to submit a private medical opinion to support your claim for benefits, it is prudent to obtain a copy of your claim folder and provide it to the private physician for review prior to rendering the opinion. It is also VERY important to make sure the private physician indicates in the medical opinion that the claim folder was reviewed.

Providing a private medical opinion can be very helpful in supporting your claim for benefits. A private physician’s opinion, however, without a sound rationale based on review of all pertinent medical evidence will not be given the same probative value as an examination by a DVA physician based on review of the claim folder.

Haas v. Nicholson was the case brought on behalf of “blue water” veterans who argued that the presumption of exposure to herbicides (Agent Orange) should be extended to veterans serving in the waters off the coast of Vietnam.

The presumption of exposure to Agent Orange has been defined by the Department of Veterans Affairs (DVA) as “served in the Republic of Vietnam.” This definition means a veteran must have performed duty or visited the country of Vietnam to be considered to have “served in the Republic of Vietnam.” This presumption of exposure, therefore, did not extend to those serving in the waters off the coast of Vietnam.

The argument made by the appellant, Jonathan L. Haas, was that the presumption should extend to those who served in the waters off the coast of Vietnam. The Board of Veterans Appeals (BVA) upheld the VA’s regulatory interpretation that presumption to exposure to Agent Orange did not extend to these “blue water” veterans.

Mr. Haas appealed this decision to the U.S. Court of Appeals for Veterans Claims (CAVC). CAVC set aside the Department of Veterans Affairs (DVA) interpretation as too restrictive. This decision opened the DVA claims process for “blue water” veterans to claim service connection for the conditions listed in 38 CFR 3.309 as conditions presumed to have resulted from exposure to herbicides.
DVA appealed the CAVC decision to the United States Court of Appeals for the Federal Circuit. This court reversed the CAVC decision and upheld the DVA interpretation of what constitutes exposure to herbicides as permissible.

The DVA is in the process of establishing procedures to begin adjudicating the “Haas” claims that were placed in a pending status since this issue began winding through the court system.

What does this mean to veterans who have claims designated by DVA as “Haas” claims? It is not clear yet how the decision is to be implemented. DVA is still determining how to handle the large number of claims in this category. All veterans with “Haas” claims are CAUTIONED to carefully examine any decision by the DVA denying these claims. Careful review of these denial decisions need to be completed to ensure DVA Regional Offices implement the final processing procedures correctly, and that individual DVA decision-makers follow these procedures.