If the duty to notify fulfills the role of pleading, then the duty to assist is the veterans benefits system’s version of discovery. On the surface at least, it is a very different process. Although discovery is a process of information exchange between adversaries, the duty to assist is a cooperative paternalistic process. Nonetheless, they are both about gathering information, and the veterans benefits system might learn from how the discovery process works in the civil court system. As I have discussed, the data indicates that evidence that VA obtains through the duty to assist suffers from significant quality issues. Fixing this process is crucial because, if the evidence that is gathered is poor, it does not matter what process you use to weigh it. The results will still be open to doubt and criticism.
There are certainly some similarities. For example, both involve relatively low thresholds. Under Federal Rule of Civil Procedure 26(b), the information sought in discovery “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Similarly, the VA’s duty to provide a medical opinion under 38 U.S.C. § 5103A(d) is triggered if the current information “indicates” that the claim may be meritorious. Accordingly, both sides err on the side of obtaining information.
Nonetheless, there are some surprising differences. The most crucial evidence in most compensation claims is the expert opinion on whether there is a nexus between the veteran’s current disability and an injury or disease that occurred in service. However, there are almost no formal requirements as to what must be included in a medical opinion. The case law is clear that the opinion must be “adequate” to decide the claim, but what constitutes an adequate opinion is mostly a matter of common law. The U.S. Court of Appeals for Veterans Claims (CAVC) has held that “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, . . . that contributes probative value to a medical opinion.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). However, more concrete guidance is elusive.
In contrast, the Federal Rules of Civil Procedure provide substantial guidance as to what information must be provided. A medical report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
The second and fourth requirements in particular are items that would certainly be relevant in a veterans benefits claim, but are not clearly required for it.
There is a clear historical reason for the difference. The CAVC has consistently looked to the Federal Rules of Evidence for guidance on when an adequate medical opinion has been provided, instead of the Federal Rules of Civil Procedure. This may be too narrow a focus, because VA’s duty to assist is more closely related to the rules for discovery than it is to the rules for weighing evidence at trial.
The discovery process may have a lot to teach the veterans benefits system about what information should be included when developing medical evidence. Of course, before you can start importing rules of procedure from another system, you must confront the issue of whether they scale up. There are only about a quarter million cases filed each year in all of the federal district courts put together. Each year, VA obtains at least five times that number of expert medical opinions. VA is required to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.” What lessons can you “reasonably” import from the theory and practice of discovery in civil courts given this difference in scale? It is certainly a topic that merits investigation.