Francway v. Wilkie

 
APPEAL NO.
18-2136
OP. BELOW
SUBJECT
Veterans
AUTHOR
Dyk

Question(s) Presented

“Since 2009, we have held that the Board and Veterans Court properly apply a presumption of competency in reviewing the opinions of VA medical examiners. See Rizzo v. Shinseki, 580 F.3d 1288, 1290–91 (Fed. Cir. 2009). Francway . . . contends that the presumption of competency is inconsistent with the VA’s duty to assist veterans, see 38 U.S.C. § 5103A (requiring the VA to assist veterans with benefit claims), and the benefit-of-the-doubt rule, id. § 5107(b) (requiring the VA to give the benefit of the doubt to the veteran when the evidence is in approximate equipoise), and that there is no statutory basis for the presumption. We construe Francway’s continued argument as to the illegitimacy of the presumption as a request for the panel to ask for an en banc hearing under Federal Circuit Rule 35 to overturn Rizzo and subsequent cases.”

Holding

“The en banc court formed of PROST, Chief Judge, NEWMAN, LOURIE, DYK, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES, and STOLL, Circuit Judges, has determined that to the extent that the decision here is inconsistent with Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010), those cases are overruled. We note that in the future, the requirement that the veteran raise the issue of the competency of the medical examiner is best referred to simply as a ‘requirement’ and not a ‘presumption of competency.’”

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