For Him Who Shall Have Borne the Battle: How the Presumption of Competence Undermines Veterans’ Disability Law

Authors

Chase Cobb, Washington and Lee University School of LawFollow

Abstract

When the Veterans Administration denies a veteran’s claim for disability benefits it often does so based on the opinion of an expert medical examiner—usually a doctor or a nurse. But under a recent federal rule, the VA carries no burden of laying a foundation for the expert medical examiner’s opinion—no burden of establishing the quality of the expert’s education or the depth of her experience; no burden of establishing the scope of the expert’s training or the soundness of her reasoning. Instead, the VA may simply presume the qualifications of its own expert examiner and throw the burden on the veteran of offering specific objections. If the veteran fails to object to the examiner’s qualifications at a particular time (at the first stage of the disability review process), and if the veteran fails to object to the examiner’s qualifications in a particular way (specifically rather than generally), the veteran loses the right to challenge the examiner’s qualifications on appeal.

That is a puzzling rule. In every other legal context—tort cases; contract disputes; murder trials—the burden of qualifying an expert falls on the party who wants to admit the expert’s testimony. In a criminal trial, for example, the burden of qualifying a witness for the prosecution falls on the prosecution—who must then prove the expert’s qualifications through evidence of her education, experience, and training. But the (so-called) “presumption of medical examiner competence” pushes that burden in the opposite direction. It inexplicably relieves the government of its duty of qualifying one particular kind of expert—VA medical examiners—and it shifts to the veteran a duty not only of discovering the expert’s deficiencies but also of expressing these deficiencies with a specific objection.

Recommended Citation

Chase Cobb, For Him Who Shall Have Borne the Battle: How the Presumption of Competence Undermines Veterans’ Disability Law, 25 Wash. & Lee J. Civ. Rts. & Soc. Just. 577 (2019).
Available at: https://scholarlycommons.law.wlu.edu/crsj/vol25/iss2/8