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ADVISORY: THE WIDELY-CIRCULATED STORY BELOW IS

IN ERROR -- THERE IS NO "TREATING-PHYSICIAN RULE"

AT THE VA -- PLEASE NOTE

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VA DOESN'T PLAY BY ITS OWN RULES -- VA must use

"treating-physician rule," which gives preferential

weight to statements from a veteran's private

physician. Doctor and former VA attorney

say the agency is not doing this.

 

 

The following story is in error.

I would like to thank one of the excellent attorneys who regularly provides legal analysis for VA Watchdog dot Org for pointing out this error.

I, like many others, understood there to be a "treating-physician rule" at the VA, like there is in Social Security cases.  That is NOT so.

In a 2001 decision, the U.S. Court of Appeals for the Federal Circuit ruled: Thus, unlike the Social Security benefits statutes, the VA benefits statutes and regulations do not provide any basis for the "treating physician" rule and, in fact, appear to conflict with such a rule. Moreover, given the comprehensive statutory and regulatory scheme for the award of veterans' benefits, it would not be appropriate for this court to impose the "treating physician" rule on the VA. Congress delegated to the Secretary of Veterans Affairs the authority to proscribe "regulations with respect to the nature and extent of proof and evidence . . . in order to establish the right to benefits . . . . " 38 U.S.C. § 501 (a) (1994). Thus, Congress left it to the VA, and not this court, to determine how best to weigh evidence in veterans' benefits cases. Our limited role in this area is further reinforced by our general inability to review Court of Appeals for Veterans Claims' decisions on factual issues. See 38 U.S.C. § 7292 (d)(2).

Complete decision below:

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UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

 

243 F3d 1378 (2001)

 

MARGARET E. WHITE,
Claimant-Appellant,

 

v. 

 

ANTHONY J. PRINCIPI,
Secretary of Veterans Affairs,
Respondent-Appellee.

 

March 27, 2001, Decided

 

Before SCHALL, GAJARSA, and LINN, Circuit Judges.

 

Disposition  AFFIRMED.

 

Counsel  James W. Stanley, Jr., The Stanley Law Firm, of North Little Rock, Arkansas, for claimant-appellant.
  Patricia M. McCarthy, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent-appellee. With her on the brief were David M. Cohen, Director, and Deborah A. Bynum, Assistant Director. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel, and Martie Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

 

Opinion

 

Editorial Information: Prior History
Appealed from: United States Court of Appeals for Veterans Claims. Judge Donald L. Ivers.
Editorial Information: Subsequent History
Rehearing and Rehearing En Banc Denied May 24, 2001, Reported at:    2001 U.S. App. LEXIS 13272.

 

Opinion by:  SCHALL
{243 Vet. App. 1378}

 

SCHALL, Circuit Judge.
Margaret White appeals the decision of the United States Court of Appeals for Veterans Claims that affirmed the 1998 decision of the Board of Veterans' Appeals ("Board") that denied her claim for dependency and indemnity compensation {243 Vet. App. 1379} ("DIC"). White v. West, 2000 U.S. App. Vet. Claims LEXIS 407, No. 98-1870 (Vet. App. May 2, 2000). On appeal, Ms. White argues that the Court of Appeals for Veterans Claims erred as a matter of law when it failed to adopt the "treating physician" rule, which would require that additional evidentiary weight be given to the opinion of a physician who had treated her husband. Because we hold that the court did not err in declining to adopt the rule, we affirm.

 

BACKGROUND

 

Mr. White served on active duty in the United States Army from May 12, 1942, to August 4, 1944, and again from July 7, 1952, to July 6, 1954. Mr. White died on January 3, 1990. At the time of his death, he had a service-connected disability diagnosed as degenerative arthritis of multiple joints, with a 40% disability rating. Mr. White's death certificate lists bacterial pneumonia as the immediate cause of death and arthritis, tendonitis, coronary artery disease, and congestive heart failure as underlying causes of death.
The surviving spouse of a veteran who died from a service-connected disability may obtain DIC benefits. 38 U.S.C. § 1310 (1994). A veteran's death will be considered service-connected if the service-connected disability was "either the principal or a contributory cause of death."  38 C.F.R. § 3.312 (2000). Ms. White applied for DIC benefits in February of 1990, asserting that her husband's service-connected arthritis was a contributing cause of his death. The regional office of the Department of Veterans Affairs ("RO") denied the claim, determining that there was no evidence substantiating that Mr. White's arthritis contributed to his death. Ms. White appealed the denial to the Board.
The evidence before the Board included letters from four physicians: (1) Dr. Alston, an internist and Mr. White's personal treating physician; (2) Dr. Oppenheim, M.D., J.D., L.L.M. (medical specialty unknown), who issued his opinion at Ms. White's request after reviewing Mr. White's medical records and the transcripts of hearings that had been held before the RO; (3) Dr. Miller, a Department of Veterans Affairs ("VA") physician and specialist in pulmonary disease, who issued his opinion at the request of the VA after reviewing Mr. White's VA records; and (4) Dr. Schnader, a VA physician and specialist in pulmonary disease and critical care medicine, who issued his opinion at the VA's request after reviewing Mr. White's VA records. The letters from Dr. Alston and Dr. Oppenheim supported Ms. White's DIC claim. The letters from the VA doctors indicated that it was unlikely that Mr. White's arthritis contributed to his death.
The Board acknowledged that the evidence as to whether Mr. White's arthritis contributed to his death was conflicting. It is not clear that Ms. White asked the Board to apply the "treating physician" rule to resolve the conflict. The rule would have required the Board to give more evidentiary weight to the opinion of the physician who actually had examined Mr. White, Dr. Alston, and would have required the Board to accept his opinion unless it was contradicted by substantial evidence. The Board did not apply such a rule. Instead, the Board determined that, because Mr. White died of pneumonia, the physicians who specialized in pulmonary medicine were better qualified to give opinions as to whether Mr. White's arthritis contributed to his death. The Board found that the conclusions of these physicians, that Mr. White's death was not related to his service-connected arthritis, constituted persuasive evidence against Ms. White's DIC claim. The Board also determined that there was no contemporaneous clinical support for Dr. Alston's and Dr. Oppenheim's opinions that Mr. White's service-connected arthritis led to diminished pulmonary or cardiovascular function and thereby contributed to his death. The Board therefore denied Ms. White's claim for DIC benefits.
Ms. White appealed the Board decision to the Court of Appeals for Veterans Claims, which affirmed the Board. White, slip op. at 8. The court determined that the Board decision was {243 Vet. App. 1380} supported by the record and complied with the applicable statutes and regulations. Id., slip op. at 6-8. The court refused to apply the "treating physician" rule, stating that the Court of Appeals for Veterans Claims "has consistently rejected its adoption." Id. at 8 (citing Winsett v. West,   11 Vet. App. 420 (1998); Guerrieri v. Brown,   4 Vet. App. 467 (1993); Chisem v. Brown,   4 Vet. App. 169 (1993)).
DISCUSSION
I.
Our jurisdiction with respect to a decision of the Court of Appeals for Veterans Claims is limited by statute. We can review the validity of any statute or regulation, or any interpretation thereof, upon which the court relied in making its decision. 38 U.S.C. § 7292 (a) (Supp. IV 1998). However, we do not have jurisdiction to review a factual determination or an application of a law or regulation to the facts of a case unless a constitutional issue is presented. 38 U.S.C. § 7292 (d)(2) (1994). The standard of review that we apply to the court's decisions also is defined by statute. We must set aside any interpretation of a law or regulation that we find to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 38 U.S.C. § 7292 (d)(1) (Supp. IV 1998).
Ms. White raises only one issue on appeal: whether the "treating physician" rule should apply to claims for veterans' benefits. As a preliminary matter, the government argues that we lack jurisdiction over Ms. White's appeal. It contends that the appeal relates solely to factual issues or to the application of law to the facts of the case, and does not challenge the validity or interpretation of a statute or regulation or raise any constitutional issues. The government also cites Belcher v. West,  214 F.3d 1335 (Fed. Cir. 2000), for the proposition that we do not have jurisdiction over issues or arguments that were not presented to the Court of Appeals for Veterans Claims or that the court did not address in making its decision. We reject the government's challenges to our jurisdiction.
It is evident from the decision on appeal that Ms. White asked the Court of Appeals for Veterans Claims to adopt the "treating physician" rule and that the court addressed this request when reaching its decision. White, slip op. at 8 ("As for appellant's suggestion that the court apply the 'treating physician rule,' the Court has consistently rejected its adoption."). Moreover, Ms. White's appeal does involve an interpretation of a regulation that was relied on by the Court of Appeals for Veterans Claims. The court cited Guerrieri to support its rejection of the "treating physician" rule. Id. In that case, the court rejected the rule because it "might raise a conflict with the VA's evaluative process outlined in  38 C.F.R. § 3.303 ." Guerrieri,   4 Vet. App. at 472. Thus, the court's rejection of the "treating physician" rule is based on its interpretation of  38 C.F.R. § 3.303 .
II.
The "treating physician" rule is applied in Social Security cases. As explained by the United States Court of Appeals for the Second Circuit, the rule holds that
[The] treating source's opinion on the subject of medical disability, i.e., diagnosis and nature and degree of impairment, is (i) binding on the factfinder unless contradicted by substantial evidence; and (ii) entitled to some extra weight, although resolution of genuine conflicts between the opinion of the physician, with its extra weight, and any substantial evidence to the contrary remains the responsibility of the fact-finder.
Schisler v. Heckler,  787 F.2d 76, 81 (2d Cir. 1986). The rule was specifically designed to address problems generated by the Social Security system, where the factfinder must weigh the diagnosis of a claimant's physician against the opinions of the Social Security Administration's consulting {243 Vet. App. 1381} physicians. It is applied to help resolve conflicting medical evidence by giving legal recognition to the assumption that a Social Security claimant's own treating doctor is the physician best able to present a complete picture of the claimant's medical condition. Id. The rule is based on a statute that requires the Commissioner of Social Security to "make every reasonable effort to obtain from the individual's treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make . . . a determination [regarding disability], prior to evaluating medical evidence obtained from any other source on a consultative basis." 42 U.S.C.A. § 423 (d)(5)(B) (West Supp. 2000).
Ms. White argues that the court's refusal to apply the "treating physician" rule in veterans' benefits cases violates the benefit of the doubt requirement set forth in 38 U.S.C. § 5107 (b). That statute provides that, "when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary [of Veterans Affairs] shall give the benefit of the doubt to the claimant." Veterans Claims Assistance Act, Pub. L. No. 106-475, § 4, 114 Stat. 2096 (2000) (revising the language of 38 U.S.C. § 5107 (b)). We must reject Ms. White's argument.
In the first place, the approach Ms. White urges might well conflict with the statutory benefit of the doubt requirement. Her argument assumes that the treating physician's opinion will favor the veteran. However, that may not be the case. As explained in Guerrieri, the VA, unlike the Social Security Administration, operates its own system of medical facilities for the care and treatment of veterans. Guerrieri,   4 Vet. App. at 472. "The availability of care at VA medical facilities means that VA physicians often will be the veteran's 'treating physician.'" Id. If the treating physician's opinion does not support the claim for benefits, then giving it more weight might result in a decision against the claimant, which would be contrary to § 5107(b) if the evidence were otherwise in approximate balance. Because the "treating physician" rule would conflict with § 5107(b) under certain circumstances, we cannot interpret § 5107(b) as requiring application of the rule.
In addition, we agree with the Court of Appeals for Veterans Claims that adopting the "treating physician" rule would conflict with  38 C.F.R. § 3.303(a) . That regulation provides that "determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of [the VA] to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. "  38 C.F.R. § 3.303(a) (2000). The regulation is based on 38 U.S.C. § 7104 (a), which requires that "decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation." 38 U.S.C.A. § 7104 (a) (West Supp. 2000). This statute does not suggest that the VA should give more weight to a piece of evidence based solely on its source.
Thus, unlike the Social Security benefits statutes, the VA benefits statutes and regulations do not provide any basis for the "treating physician" rule and, in fact, appear to conflict with such a rule. Moreover, given the comprehensive statutory and regulatory scheme for the award of veterans' benefits, it would not be appropriate for this court to impose the "treating physician" rule on the VA. Congress delegated to the Secretary of Veterans Affairs the authority to proscribe "regulations with respect to the nature and extent of proof and evidence . . . in order to establish the right to benefits . . . . " 38 U.S.C. § 501 (a) (1994). Thus, Congress left it to the VA, and not this court, to determine how best to weigh evidence in veterans' benefits cases. Our limited role in this area is further reinforced by our general inability to review Court of Appeals for Veterans Claims' decisions on factual issues. See 38 U.S.C. § 7292 (d)(2).
{243 Vet. App. 1382}
CONCLUSION
For the foregoing reasons, the decision of the Court of Appeals for Veterans Claims is AFFIRMED.
COSTS
Each party shall bear its own costs.

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The original story (in error) will remain posted.

Story here... http://www.news-record.com/apps/
pbcs.dll/article?AID=/20070107/
NEWSREC0101/70107003

Story below:

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Lawyer: VA breaks doctor rule

By Lex Alexander
Staff Writer

GREENSBORO — When Joel Brigman served in the Army from 1961 to 1964, he worked with Nike Hercules surface-to-air missiles, the key ground defense against hypothetical waves of Soviet bombers.

To clean and maintain the missiles and related equipment, Brigman used chemicals such as trichloroethylene, benzene and toluene — all of which were used in the toxic defoliant Agent Orange and are toxic themselves.

Now Brigman suffers from adult-onset diabetes, eye and skin problems, chronic obstructive pulmonary disease and leg neuropathy — severe pain. All these symptoms are associated with exposure to the chemicals.

"I wouldn’t want nobody else to go through, I’ll tell you, what I’ve been through," Brigman said. "I had so many problems they couldn’t list ’em all on the medical record, but it all leads right back to the chemicals in Agent Orange."

His physician, Fred McQueen Jr., of Hamlet, has given the Department of Veterans Affairs no fewer than eight statements attesting to the fact that Brigman’s diabetes and other conditions were caused by his military exposure to these chemicals.

But the VA, relying instead on its own physicians, has repeatedly refused to give Brigman the 100 percent disability rating he is seeking.

"Mr. Brigman is just one of many," said McQueen, a former Army doctor. "I’ve been working with the VA with a lot of my (patients). With the VA, I can’t make them accept (my statements). I’ve sent them pages from textbooks and articles, and they don’t pay any attention. They’ve been jerking (veterans) around."

Brigman’s attorney, Craig Kabatchnick, of Greensboro, says Brigman’s case illustrates a widespread problem: the VA’s violation of the so-called "treating-physician rule." The rule requires that statements from a veteran’s private physician are to be given preferential weight as the VA determines a veteran’s disability rating.

The VA has not responded to numerous questions from the News & Record via e-mail about its disability compensation/pension program.

The problem has particular ramifications for North Carolina. More service members are discharged here than in almost any other state, and the state is expected to become one of the nation’s leading homes for veterans within the next few years.

Kabatchnick worked for the VA from 1990 to 1995, defending the department against veterans’ disability claims. During his tenure, he says, the rule was followed more conscientiously. Increasingly, it is disregarded, he says.

What happens instead, he says, is that the VA’s regional offices will use VA or contract physicians to examine a veteran and render an opinion, typically one unfavorable to the veteran, regardless of what the veteran’s treating physician says.

They are doing so, he says, under the pretense of complying with the so-called "duty-to-assist" law, which requires VA regional offices to do everything possible to help veterans prepare and document their disability claims.

Such examinations, he says, frequently last less than 30 minutes, and the physicians frequently are not board-certified in the specialty related to the claimed disability. And yet, he says, the opinions frequently are given more weight than those of board-certified specialists who have been treating the veteran, in some instances, for many years.

"They don’t want to hear anything a civilian doctor says," McQueen said.

Veterans, most of whom have no legal or medical training, are then left to try to discern any weaknesses in the VA’s position on their own.

Veteran David Best, of Fayetteville, has experienced the same problem as Brigman.

"They don’t listen to nothing my doctors say, but they listen to their doctors," Best said.

He recalled how his doctor had stated to the VA that there was at least a 50-50 chance that Best’s current knee problems resulted from a hip problem that developed during his military service.

"Their doctor came and said he didn’t see how it was … possible for my knee to cause my hip (problem) — and that’s not what my doctor said," Best recalled . "They don’t care nothing about what we say."

Brigman never served in Vietnam, and that’s a big part of his problem. In a period of several years during the Vietnam era, had he set foot anywhere in much of Southeast Asia for even one day, he would be presumed under government policy to have been exposed to Agent Orange, which was widely used in Vietnam, Cambodia and Laos to kill bushes and trees to deny enemy soldiers cover. That exposure, in turn, would be presumed under government policy to be the cause of his diabetes and possibly other ailments.

But he never went to Southeast Asia. And although he regularly worked — without gloves — with some of the same chemicals used in Agent Orange, he never worked with Agent Orange itself.

On that thread, apparently, hangs the government’s refusal to rate him as 100 percent disabled.

"I’d say it took me from 1988 to around 2000 to get (my disability rating) up to 60 percent," Brigman said . "But they were still avoiding the one issue: chemicals."

It’s not clear what can, or will, be done about the problem, Kabatchnick said.

"The courts are all over the place on this," he said. "But the VA has used its own physicians to get around paying benefits despite statements from physicians who’ve been treating (these patients) for a number of years. That’s not the right way to play the game."

Contact Lex Alexander at 373-7088 or
lalexander@news-record.com

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Larry Scott

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