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VA Not Required To Find Record Insufficient Before Ordering New PTSD Exam


A veteran of the United States Navy filed a Department of Veterans Affairs (VA) claim for disability benefits based on service-connected post-traumatic stress disorder (PTSD). The man claimed his PTSD was connected to a typhoon that his ship encountered en route to Japan in January 1956. Ship logs and letters from two shipmates confirmed that the ship weathered a bad storm around that time.

 

The man underwent a VA medical examination. The examiner found no PTSD. The VA’s Seattle Regional Office denied the man’s benefits claim. While awaiting his appeal hearing, the man underwent several more medical examinations. Two years after the denial, an examination at the VA’s Veterans Center produced a diagnosis of PTSD. Four years after the denial, an examination by a private psychologist produced a diagnosis of PTSD. Two other examinations conducted by the VA did not produce diagnoses of PTSD.

 

At the first appeal hearing the man testified about the typhoon stating in particular that he saw people go overboard on a neighboring ship. The Board of Veterans’ Appeals denied the claim, finding no service connection. The board found the man not credible in so far as he testified to witnessing others go overboard, and it therefore concluded that it could not rely on medical opinions that credited his statements about others going overboard in arriving at a PTSD diagnosis.

 

On a subsequent remand, the board determined that the man should be scheduled for a VA psychiatric examination and that the examiner must specifically opine whether the man had PTSD due solely to the fact that he survived a storm at sea in January 1956, not based on the claim that he saw anyone going overboard. The man underwent the ordered VA examination. The examiner concluded that experiencing the typhoon in and of itself was an adequate stressor to support a PTSD diagnosis, but that the man’s symptoms did not meet the diagnostic criteria for PTSD.

 

The man underwent an additional private medical examination around the same time. The examiner found PTSD based on the storm alone being a sufficient stressor.

 

Again, the board rejected the man’s claim. The board determined that the man was not credible at reporting his psychiatric symptoms or the stressors he claimed regarding his PTSD. The board found that the most recent VA examination was more probative than the most recent private examination.

 

The man appealed to the United States Court of Appeals for Veterans Claims arguing that the board should not have ordered the most recent VA examination. The United States Court of Appeals for Veterans Claims determined that the board had not erred by ordering the additional medical examination. The United States Court of Appeals for Veterans Claims affirmed the board’s denial.

 

The Federal Circuit United States Court of Appeals affirmed. The court held that the United States Court of Appeals for Veterans Claims correctly interpreted 38 U.S.C.A. § 5103A in rejecting the man’s contention that the Board of Veterans’ Appeals was forbidden to order the most recent VA examination.

 

The United States Court of Appeals for Veterans Claims correctly interpreted 38 U.S.C.A. § 5103A in rejecting the man’s contention that the Board of Veterans’ Appeals was forbidden to order the most recent VA examination. The court explained that section 5103A does not require the board to find the record insufficient for a sound ruling to be made on a claim before it orders a medical examination. By its express terms, § 5103A imposes an affirmative requirement on the VA Secretary to provide medical examinations under certain conditions, specifically, where a medical examination “is necessary to make a decision on the claim.” § 5103A(d)(1). The statute states that, in certain circumstances, the VA Secretary must order a medical examination. It does not say, however, that the VA Secretary may not order a medical examination in any other circumstance. It imposes an evidence-gathering duty on the VA Secretary. It does not confine discretion the VA Secretary otherwise has to gather evidence, including by ordering a medical examination. The VA has an affirmative duty to gather the evidence necessary to render an informed decision on the claim, even if that means gathering and developing negative evidence, provided it does so in an impartial, unbiased, and neutral manner.

 

The Federal Circuit United States Court of Appeals affirmed the lower court’s affirming the denial of disability benefits based on an assertion of disability caused by service-connected post-traumatic stress disorder (PTSD).

 

See: Herbert v. McDonald, 2015 WL 4032938 (C.A. Fed., July 2, 2015) (not designated for publication).

 

See also Medical Law Perspectives, March 2015 Report: Post-Traumatic Stress Disorder: Diagnosis and Treatment Failures

 

See the Medical Law Perspectives October 3, 2014, Blog: Insurer Can Request Insured Appear for Examination Under Oath after Insured’s Benefits Denied Based on Independent Medical Evaluation

 

 

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