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.