Cite as: 582 U. S. ____ (2017) 1
Statement of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
FREDDIE H. MATHIS v. DAVID J. SHULKIN,
SECRETARY OF VETERANS AFFAIRS
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
No. 16–677. Decided June 26, 2017
The petition for a writ of certiorari is denied.
Statement of JUSTICE SOTOMAYOR respecting the denial
of certiorari.
This petition raises important questions about how the
Government carries out its obligations to our veterans.
The Board of Veterans’ Appeals (Board) applies a rebut-
table presumption when reviewing veterans’ disability
claims: The medical examiner whose opinion the Depart-
ment of Veterans Affairs (VA) relied on to deny a veteran’s
claim is presumed competent, absent a specific objection
by the veteran. To raise an objection, a veteran needs to
know the medical examiner’s credentials. And yet, the VA
does not provide veterans with that information as a
matter of course. Nor does it always provide veterans
with that information upon request. The only road to
guaranteed access to an examiner’s credentials runs
through a Board order. The Board, however, has some-
times required the veteran to have already raised a spec-
ific objection to an examiner’s competence before ordering
the VA to provide the credentials. This places a veteran in
“a catch-22” where she “must make a specific objection to
an examiner’s competence before she can learn the exam-
iner’s qualifications.” 834 F. 3d 1347, 1357 (CA Fed. 2016)
(Reyna, J., dissenting from denial of rehearing en banc).
As JUSTICE GORSUCH explains, see post, at 1, the Board’s
presumption is questionable. But the presumption is not
the only problem. A decision by the VA to deny benefits in
2 MATHIS v. SHULKIN
Statement of SOTOMAYOR, J.
reliance on an examiner’s opinion, while denying the
veteran access to that examiner’s credentials, ensures that
the presumption will work to the veteran’s disadvantage.
The petitioner here did not ask the VA to provide the
examiner’s credentials, and so this petition does not allow
review of both the VA’s practice and the Board’s presump-
tion. Full review would require a petition arising from a
case in which the VA denied a veteran benefits after de-
clining to provide the medical examiner’s credentials.
Until such a petition presents itself, staying our hand
allows the Federal Circuit and the VA to continue their
dialogue over whether the current system for adjudicating
veterans’ disability claims can be squared with the VA’s
statutory obligations to assist veterans in the development
of their disability claims.
Cite as: 582 U. S. ____ (2017) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
FREDDIE H. MATHIS v. DAVID J. SHULKIN,
SECRETARY OF VETERANS AFFAIRS
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
No. 16–677. Decided June 26, 2017
JUSTICE GORSUCH, dissenting from denial of certiorari.
Lower courts often presume that Department of Veter-
ans Affairs medical examiners are competent to render
expert opinions against veterans seeking compensation for
disabilities they have suffered during military service.
The VA appears to apply the same presumption in its own
administrative proceedings.
But where does this presumption come from? It enjoys
no apparent provenance in the relevant statutes. There
Congress imposed on the VA an affirmative duty to as-
sist—not impair—veterans seeking evidence for their
disability claims. See 38 U. S. C. §5103A(a)(1). And con-
sider how the presumption works in practice. The VA
usually refuses to supply information that might allow a
veteran to challenge the presumption without an order
from the Board of Veterans’ Appeals. And that Board
often won’t issue an order unless the veteran can first
supply a specific reason for thinking the examiner incom-
petent. No doubt this arrangement makes the VA’s job
easier. But how is it that an administrative agency may
manufacture for itself or win from the courts a regime that
has no basis in the relevant statutes and does nothing to
assist, and much to impair, the interests of those the law
says the agency is supposed to serve?
Now, you might wonder if our intervention is needed to
remedy the problem. After all, a number of thoughtful
colleagues on the Federal Circuit have begun to question
the presumption’s propriety. See Mathis v. McDonald,
2 MATHIS v. SHULKIN
GORSUCH, J., dissenting
834 F. 3d 1347 (2016). And this may well mean the pre-
sumption’s days are numbered. But I would not wait in
hope. The issue is of much significance to many today
and, respectfully, it is worthy of this Court’s attention.