Mathis v. McDonald

REYNA, Circuit Judge, with whom NEWMAN and WALLACH, Circuit Judges, join,

dissenting from denial of rehearing en banc.

In declining to undertake an en banc review, the court leaves in place a judicially created evidentiary presumption that in application denies due process to veterans seeking disability benefits. The presumption, that the Veterans Administration ordinarily and routinely selects competent medical examiners as a matter of due course, was created void of any evidentiary basis. Its application has resulted in a process that is inconsistent with the Congressional imperative that the…