suggesting that reference to 38 U.S.C. § 7109 in intra-agency letter requesting Veterans Health Administration medical opinion was “a de mini-mus drafting misstep” because "solicitation of an independent medical opinion from outside [Department of Veterans Affairs] was never contemplated by anyone involved”
How later courts described this case
- suggesting that reference to 38 U.S.C. § 7109 in intra-agency letter requesting Veterans Health Administration medical opinion was “a de mini-mus drafting misstep” because "solicitation of an independent medical opinion from outside [Department of Veterans Affairs] was never contemplated by anyone involved”
- holding that section 7109(a) does not preclude Board from obtaining medical opinions not rendered from outside VA
- where conflicting opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given
- “subsection (c) of section 7109[, by] requir[ing] notice and provision of a copy of the [VA] opinion to a claimant (as does section 5109[(e)]), merely restates the procedural process due a claimant under higher law before a decision is made”
Written by the judges who cited it.
The opinion
FARLEY, Judge,
concurring:
Assuming the arguments vehemently advanced by counsel for appellant must be reached and resolved, I concur wholeheartedly in the majority opinion and judgment. Left to my own devices, however, I would have viewed the reference to 38 U.S.C. § 7109 in the intra-agency letters as a de minimis drafting misstep, one having neither legal significance nor consequences. As is evident from the text of those letters, the Board’s request was to VA medical personnel for “your” review and opinion (R. at 724, 731) and the proper administrative authority for such action, “VHA Directive 10-95-040 dated April 17, 1995,” was specifically referenced. The appellant was never told that an independent medical opinion was being sought; rather, she was advised that the Board had “requested an opinion from a medical expert associated with the Department of Veterans Affairs.” R. at 722. To my reading, the solicitation of an independent medical opinion from outside VA was never contemplated by anyone involved and the arguments of appellant’s counsel in that regard bring to mind one of the Bard’s plays: Much Ado About Nothing.