Medical Opinions From Health Care Professionals Within The Dva

[Guest allanopie]

United States Court of Appeals for the Federal Circuit

04-7117, -7128

DISABLED AMERICAN VETERANS,

Petitioner,

and

THE AMERICAN LEGION and THE NATIONAL

VETERANS LEGAL SERVICES PROGRAM

Petitioners,

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent.

___________________________

DECIDED: August 3, 2005

___________________________

Before MICHEL, Chief Judge, MAYER and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge MAYER.

DYK, Circuit Judge.

Disabled American Veterans, the American Legion, and the National Veterans Legal Services Program (collectively “petitioners”) petition for review of a regulation promulgated by the Secretary of Veterans Affairs, 38 C.F.R. § 20.901(a). We hold that the regulation is valid and accordingly deny the petition for review.

BACKGROUND

This case involves a regulation that authorizes the Board of Veterans Appeals (hereinafter “Board”) to secure medical opinions from health care professionals within the Department of Veterans Affairs (“VA”). Some background on the administration of veterans benefits is helpful to understanding the operation of this regulation.

Among the most important of benefit programs administered by the VA is the disability compensation program, which provides compensation to veterans who suffer a “disability resulting from personal injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (2000). A veteran claiming benefits submits an application to the VA, and an initial decision on benefits is rendered by the Secretary of Veterans Affairs (“Secretary”) under 38 U.S.C. § 511(a). As a practical matter the initial decision is usually made by the Secretary’s delegate at the regional office under the authority of 38 C.F.R. § 3.100. The entity that renders the initial decision is known as the “agency of original jurisdiction,” 38 C.F.R. § 20.3(a) (2004), but for convenience we will refer to it as the regional office.

Generally, a veteran who claims entitlement to disability compensation benefits must show (1) a current disability; (2) an in-service precipitating disease, injury or event; and (3) nexus between the current disability and the in-service events. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (presumption that an injury incurred during active duty is service-connected). Medical evidence and medical opinion is important to the questions of whether there is a disability and whether that disability is service-connected.

To view the entire case, use this link:

http://www.fedcir.gov/opinions/04-7117c.pdf

[Guest Berta]

Thanks Alan- I might need this----

set for an "expert" medical opinion which I assume is a VA doctor-

I have a list of VA doctors -14-15-many with "expertise" who could not properly diagnose my husband for 6 years.(documented in the med recs ) One part is funny- during a 19 day hospital admission my husband received numerous diagnosis from a so called VA doctor.

Not one of them was correct. When he finally got a CT scan and another VAMC diagnosed the results as a stroke, this doctor told my husband he would need Brain surgery"-she couldn't even get that right- he didn't.

I documented 32 instances that showed a preponderance of evidence was in my favor to include two IMOS.

This is a very interesting case.

I am asking my vet rep to hone in on Relative Equipoise however-

I have 2 IMOs -and excellent additional evidence from VA itself for my claim ---- the VA has Nada-

yet a new DRO would not extend me the provisions of 38 USC 5107-

I am insisting on it.

[Pete53]

When I started my claim in 1991 my VA Doctors would not do anything to help. I am always happy when I see a Veteran say that their VA Doc is helping.

[john999]

I think most of these VA doctors are just afraid to rock the boat.