Independent Medical Opinion for Veterans

June 18, 2024 – Independent medical opinion for veterans, often abbreviated as IMO, means an expert witness opinion by a qualified healthcare professional. Veterans usually seek independent medical opinions to support claims for disability benefits.*

On this page ...

* Note: When I conduct an independent exam or write an independent opinion, I usually use terms more consistent with my education and training, such as independent psychological exam (IPE). At the same time, calling a psychologist's expert witness opinion a medical opinion is the norm in many contexts, e.g., the U.S. Department of Veterans Affairs (VA) calls its psychologists and audiologists medical examiners who write medical opinions.

Dr. Worthen provides Independent Psychological Exams & Consultation to Attorneys

► Employment Law (ADA, sexual harassment)

► Civil Competencies (guardianship, testamentary capacity)

► Psychological injury (tort actions, insurance)

► Veterans disability claims (specializing in complex cases)

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1151 Claims & Independent Medical Opinions

Veterans and survivors also seek independent medical opinions in other cases, e.g., claims under 38 U.S.C. 1151 (benefits for persons disabled by VA treatment), since the veteran must prove that the "disability or death was caused by [VA] hospital care, medical or surgical treatment ... [due to] carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault." 38 U.S.C. § 1151(a)(1)


VA-Requested Independent Medical Opinions

In less-common circumstances, the VA itself requests independent medical opinions as specified by 38 U.S.C. § 5109, with corresponding regulations at 38 C.F.R. § 3.328:

"When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA."

Thus, if Medi Droid (illustration above or to the left) worked for a university medical center he might receive a call from VA asking for an independent medical opinion.

Although admittedly, calling a Medi Droid probably won't happen for a few more decades ... unless artificial intelligence really takes off and robot doctors become commonplace.

Note: Do not download or post the illustration by Daniel Govar without first following the licensing conditions. LicenseCC BY-NC-ND 4.0

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Independent Medical Opinion for Veterans: Definitions

Let's break down those terms:

Independent

In the VA context, independent means not dependent on VA for income; not a VA medical examiner.

VA also uses the terms fee-based examiner and private examiner.

Thus, and independent medical opinion for veterans is performed by a qualified healthcare professional who does not work for the Department of Veterans Affairs.


Medical

In VA parlance, medical means physicians, psychologists, audiologists, physician associates, and nurse practitioners (APRN), and less commonly, clinical social workers.


Nexus

A nexus is a connection or link between two or more events or conditions. The connection does not have to be a causal.

If a disease or injury was “incurred coincident with service in the Armed Forces,” that disease or injury is connected to a veteran's service, i.e., there is a nexus between military service and current disability.

Thus, if a veteran's current disease developed (manifested) during military service, there is a nexus between military service and the disease. 


Opinion

The federal courts consider conclusions and opinions based on a professional expertise—experience, education, and training—to constitute expert witness opinions, in contrast to lay (non-expert) opinions.1

In most federal court proceedings expert witness qualification and expert witness opinions are governed by the Federal Rules of Evidence (legal citation: Fed. R. Evid.).

While the laws governing VA claims adjudication do not require the VA to conform to the FRE, the federal courts consider Fed. R. Evid. 702, for example, to "provide useful guidance" to evaluating Board of Veterans Appeals decisions.

Fed. R. Evid. 702: 

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case. 


Veterans

Men and women who served for a minimum period of time (usually 90 days) in U.S. Armed Forces and Uniformed Services, e.g., the Public Health Service, are veterans for the purposes of VA disability claims.

This includes members of the National Guard and Reserves, when on active duty for training and under other specified circumstances.

Students at the U.S. military academies, and even some pre-academy secondary school students,  also qualify for VA disability benefits in some instances. 

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Little Known Fact: Examiners Give Several Expert Witness Opinions in Psychological DBQs

When a psychologist reaches a conclusion, i.e., an opinion, based on their education, training, and education, i.e., a lay person could not reach such a conclusion, that conclusion is an expert witness opinion

A psychologist lists one or more mental disorder diagnoses on the DBQ. – That is an expert witness opinion.

But it's just a diagnosis, why do you call it an "expert witness opinion"? Because a layperson, someone who does not have experience, education, and training in diagnosing mental disorders, cannot provide a diagnosis.

For example, a veteran cannot simply assert, "I have PTSD." An expert must determine if they have PTSD or not. 

Otherwise qualified psychologists or psychiatrists are such experts.

Plus, the federal courts say that what VA calls medical opinions, are in the eyes of the court, expert witness opinions.

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When a psychologist answers this question on the DBQ ... 

Is it possible to differentiate what symptom(s) is/are attributable to each diagnosis? – Their answer is an expert witness opinion.

When a psychologist answers these two questions on the Initial PTSD DBQ ...

Does this stressor meet Criterion A (i.e., is it adequate to support the diagnosis of PTSD)? Their answer is an expert witness opinion.

Is the stressor related to the veteran's fear of hostile military or terrorist activity?Their answer is an expert witness opinion.

When a psychologist answers this question on the DBQ ...

Which of the following best summarizes the veteran's level of occupational and social impairment with regard to all mental diagnoses?Their answer (which box they check) is an expert witness opinion

When a psychologist checks off boxes on the "Symptom List" ...

for VA rating purposes, check all symptoms that apply to the veteran's diagnoses – their response—which boxes (symptoms) they check, and which they do not—is an expert witness opinion.

When a psychologist answers this question on the DBQ:

Is the veteran capable of managing his or her financial affairs?Their answer is an expert witness opinion.

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Independent Medical Opinions for Veterans by Dr. Worthen

I intend for this page to primarily serve an educational purpose.

But I would be remiss if I did not include at least one paragraph stating that I do provide Independent Medical Opinions for veterans, or more precisely, I conduct Independent Psychological Exams (IPE) with veterans.

The DBQ and narrative report I write of course contain several independent medical opinions.

See the Nexus Letters for VA Claims page for details. If you have questions after reading that page, contact me.

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Footnotes

1. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“both VA medical examiners and private physicians offering medical opinions in veterans benefits cases are nothing more or less than expert witnesses”).

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