On March 11, 2013 the United States Court of Appeals for the Federal Circuit (Fed. Cir.) issued a published opinion on an appeal of the Court of Appeals for Veterans Claims (CAVC) denial of a writ of mandamus. The opinion can be accessed at Beasley v. Shinseki.
The substantive issue underlying the petition for writ of mandamus was the veteran’s request that the Department of Veterans Affairs (VA) be ordered to have a VA treating physician “provide an opinion letter that would assist Mr. Beasley in substantiating the nature and extent of his service connected disability for the purposes of evaluating his disability for rating purposes.” In essence, Mr. Beasley was requesting his treating VA physician provide a retrospective medical opinion on the status of his Post Traumatic Stress Disorder (PTSD) for a specific period of time after Board of Veterans’ Appeals remanded his case to the Regional Office.
After Mr. Beasley requested the examination of his VA treating physician, a VA attorney instructed the physician not to respond to the request. The VA attorney explained to Mr. Beasley’s attorney:
“I have instructed Dr. Denker not to respond to your inquiry. Determinations of causality and disability are exclusively a function of the Veterans Benefits Administration (VBA). This is an adjudication function and VA providers do not have access to all relevant information to make such a determination plus it presents a conflict of interest. See VHA Directive 2008-071, paragraph 4d, dated October 29, 2008.”
The majority opinion held, foremost, that the Fed. Cir. does have jurisdiction to hear the claim because it “raises a question regarding the scope of the legal obligation imposed on the DVA under section 5103A.” The majority then analyzed Mr. Beasley’s petition for writ of mandamus under the following three established prongs: “the petitioner must show (1) that he has a clear legal right to relief; (2) that there are no adequate alternative legal channels through which the petitioner may obtain that relief[;] (3) and that the grant of mandamus relief is appropriate under the circumstances.”
The majority then found that Mr. Beasley did not have a clear entitlement to the relief sought because Title 38 does not “impose an open-ended obligation on the DVA to provide a medical examination or opinion upon demand.” Further, Mr. Beasley failed to show a lack of adequate alternative relief because his concerns can be addressed in the normal course of appellate review. The Fed. Cir., therefore, held that the CAVC “did not commit legal error in denying the petition for a writ of mandamus in this case.”
In a strongly worded dissenting opinion (concurring as to the jurisdictional question), Judge Newman framed the legal question as “whether the [DVA] can prohibit a veteran’s VA physician from reviewing the veteran’s evidence of service connection, lest the physician’s opinion present a ‘conflict of interest.’” Judge Newman’s response is that the VA attorney’s actions were contrary to the statutory “duty to assist” provision under 38 U.S.C. § 5103A(a)(1). Therefore, petitioner’s writ of mandamus should be granted.
Mr. Beasley’s case not only raises important questions about the VA’s statutory “duty to assist,” but also the scope of the underlying VHA Directive that the VA attorney relied upon in informing the VA physician not to honor Mr. Beasley’s request. That directive can be found at VA Directive 2008-071.
The linked directive, which expires on October 31, 2013, seems contrary to the VA’s current Fully Developed Claims program which instructs the veteran to have his or her treating VA clinician complete a medical examination (Disability Benefits Questionaire (DBQ)) even before filing a claim before the Veterans Benefits Administration (VBA). If the VA attorney’s interpretation of VHA Directive 2008-071 is correct and a VA treating physician should only provide a medical examination after being instructed by the VBA, how does that comport with the Fully Developed Claim program? Further, if the principle behind that VHA Directive 2008-071 is that providing a medical examination prior to being instructed by the VBA creates a “conflict of interest”, why would that same “conflict of interest” not exist under the Fully Developed Claim program? While VHA Directive 2013-002 does now authorize treating physicians to provide a DBQ at the request of the veteran, it provides no explanation for why the concerns raised in VHA Directive 2008-071 do not apply equally in the context of a DBQ. These questions may ultimately be answered during the normal course of appellate review.