Veteranclaims’s Blog

February 9, 2010

Submitting Private Medical Opinions, Nieves-Rodriguez v. Peake, SOAR Vol 14 No. 1

SOAR Vol 14 No 1
Submitting Private Medical Opinions
by Rory E. Riley, Esq.
Prior to Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008), the Department of Veterans Affairs (VA) frequently discounted the probative value of private medical opinions on the grounds that the private physician did not review the veteran’s VA claims file. However, the Court held that “claims file review, as it pertains to obtaining an overview of the claimant’s medical history, is not a requirement for private medical opinions.” Id. at 303. The Court went on to state that “a private medical opinion may not be discounted solely because the opining physician did not review the claims file.
Likewise, the Court holds that the Board may not prefer a VA medical opinion over a private medical opinion solely because the VA examiner reviewed the claims file.”
Although Nieves-Rodriguez was decided more than a year ago, it remains extremely significant. Therefore, if in a position to do so, veterans should be encouraged to submit their own private medical opinions, particularly in service-connection claim cases.
However, to increase the odds of VA accepting the private medical opinion as sufficient evidence to grant a claim, the veteran should still be prepared to discuss with the private physician several other factors that could help make the private medical opinion more persuasive:
1. Although claims file review is not required, it is always advantageous to
have pertinent documents from the claims file available for the private
physician to review, such as service medical records and other VA medical
center or private treatment records discussing the disability in question.
2. Explain to the private physician the terms in which VA medical opinions
are stated, i.e., “it is at least as likely as not….” VA may be quick to discount
an opinion that does not use such certain terms as speculative.
3. The private physician should understand that he or she must provide supporting rationale for any conclusion reached. VA may discount any medical opinion that does not provide adequate reasoning for its conclusions. Support for a particular opinion can include such things as the veteran’s history, review of medical records, the physician’s
own knowledge and expertise in a particular area, and medical treatise
evidence. The more detail the private physician can provide, the better.

Nieves-Rodriguez makes it more likely that VA will accept private medical opinion evidence, but there are still several things the opinion must contain in order to increase the odds of a claim being granted. If a veteran is able to obtain a private medical opinion, be sure he or she discusses the factors
listed above with the private physician.

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