|M21-1, Part III, Subpart iv, Chapter 3, Section D – Examination Reports III.iv.3.D.2.r. Examiner Statements that an Opinion Would be Speculative|
Pay careful attention to any conclusion by the examiner that an opinion could not be provided without resorting to mere speculation (or any similar language to that effect). VA may only accept a medical examiner’s conclusion that an opinion would be speculative ifthe examiner has explained the basis for such an opinion, identifying what facts cannot be determined, anddemonstrated consideration of all procurable and relevant information (to include medical treatment records and/or lay testimony), orthe basis for the opinion is otherwise apparent in VA’s review of the evidence.The medical opinion may be insufficient for rating purposes if an examiner’s conclusion is not adequately justified, orimplies a general lack of knowledge or an aversion to opining on matters beyond direct observation. In such instances, seek clarification of the conclusion.
Note: If the examiner specifically states that a medical opinion cannot be provided unless specific evidence is made available, VA’s duty to assist requires that VA determine whether that evidence may be reasonably obtained. If so, VA is to make efforts to obtain it and then seek an additional medical opinion which considers the relevant information.
Reference: For more information on speculative opinions, see
Daves v. Nicholson, 21 Vet.App. 46 (2007)
Jones (Michael H.) v. Shinseki, 23 Vet.App. 382 (2010), and
Sharp v. Shulkin, 29 Vet.App. 26 (2017).
Decision Assessment Document
Sharp v. Shulkin, Sep 6, 2017, 29 Vet.App. 26 (2017)
U.S. Court of Appeals for Veterans Claims (Court)
What the case is about:
The Court held that the frequency, duration, and severity of flares are necessary considerations when determining whether VA must attempt to schedule an examination during a flare. The Court indicated that when a condition’s flares are irregular, unpredictable, infrequent, or brief, it is unclear how VA would schedule a flare-coincident examination as a practical matter, givens it resources and duty to provide timely examinations as part of innumerable claims.
The Court also held that although Jones v. Shinseki, 23 Vet.App. 382 (2010) allows VA to accept a VA examiner’s statement that he or she cannot offer an opinion without resorting to speculation, it is only acceptable after determining it is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. It must be clear that (1) the examiner considered all procurable and assembled data before stating that an opinion cannot be reached and (2) the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. The statement that an opinion cannot be provided without resort to speculation must be based on a lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner.
Impact on VBA:
The Court’s holding will be incorporated into guidance contained in Manual M21-1, III.iv.3.D.
Summary of the facts and Court’s reasons:
The regional office (RO), in April 2012, granted service connection for right and left shoulder arthritis, with separate 10 percent evaluations; and for right and left hand and elbow\forearm conditions with separate noncompensable evaluations. The veteran appealed the assigned evaluations.
The Board of Veterans’ Appeals (Board), in November 2014, remanded the claims for a VA examination. The examiner was expected to address such elements as pain on motion and functional loss due to pain or other symptoms during flare-ups or with repeated use.
The VA examination was undertaken in September 2015. The examiner noted the veteran’s report of experiencing periodic flare-ups. Regarding shoulder flare-ups, the veteran stated that he had additional functional loss during flares due to increased pain and lack of endurance during such activities as driving a mower and lifting. With respect to the elbows/forearms, he claimed “10/10” pain during flares and had severe, aching pain, moderate weakness in grip strength, lack of endurance, and mild decrease in fine motor skills during hand flares. The examiner, in addressing the flare-ups, stated: “It is not possible without mere speculation to estimate either loss of [range of motion] or describe loss of function during flares because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances.”
The RO, in September 2015, granted separate 10 percent evaluations for the right and left hand disabilities from September 8, 2015, but denied compensable evaluations prior to that date and maintained the 10 percent evaluations for the shoulder disabilities.
The Board, in March 2016, granted 10 percent ratings for the elbow/forearm and hand disabilities prior to September 8, 2015, but denied higher evaluations for the shoulder disabilities. The Board, in finding the September 2015 VA examination adequate for rating purposes, acknowledged the examiner’s statement of being unable to offer an opinion without resorting to speculation, but concluded that the examiner’s reason was an adequate explanation for not being able to comment on additional functional loss during flare-ups.
The veteran argued before the Court that the Board erred in accepting the September 2015 VA examination as adequate because pursuant to DeLuca v. Brown, 8 Vet.App. 202 (1995) and its progeny, the examiner was expected to offer an estimate as to additional functional loss during flare-ups regardless of whether the veteran was undergoing a flare-up at the time of the examination.
The Court, in assessing VA’s duties in conducting musculoskeletal examinations, discussed the requirements from DeLuca, 38 C.F.R. § 4.40 and 4.45, and the VA Clinician’s Guide, and noted that flare-ups must be factored into an examiner’s assessment of functional loss and that examiners are to inquire whether there are periods of flares and, if so, to state their frequency, severity, and duration; name the precipitating and alleviating factors; and estimate if they affect functional impairment.
The Court stated that whether VA is obliged to schedule an examination during flare-ups depends upon the specifics of the particular case. The Court noted that in Ardison v. Brown, 6 Vet.App. 405 (1994), the veteran alleged that the flares of his chronic skin condition lasted for weeks at a time and involved spreading to other parts of the body. The Court, finding that the flares could last for weeks, remanded the case and instructed the Board to provide an examination during an active stage of the condition.
In Voerth v. West, 13 Vet.App. 117 (1999), the veteran, relying upon Ardison, argued that he was entitled to a VA examination during a period when his pilonidal cyst was inflamed. However, the Court rejected the argument because, unlike in Ardison where periods of inflammation lasted for weeks or months, the cyst flares would only last a day or two. The Court, in Voerth, recognized that scheduling an examination with the short period of flares lasting only a day or two would be unworkable. Thus, the Court held that the frequency, duration, and severity of flares are necessary considerations when determining whether VA must attempt to schedule an examination during a flare.
The Court acknowledged its previous holding in Jones that VA examiners could state that they could not opine as to etiologies of various disabilities without resorting to speculation; however, to ensure that the phrase “without resorting to speculation” did not become mantra, the Jones Court held that it must be clear that an examiner has “considered all procurable and assembled data” and explain the basis for the conclusion that a non-speculative opinion cannot be offered. The Court held that part of this obligation requires the VA examiner to identify when specific facts cannot be determined. Accordingly, the Court held that the Board can only accept a VA examiner’s statement that he or she cannot offer an opinion without resorting to speculation after determining that it is not based on the absence of procurable information or on a particular examiner’s shortcoming or general aversion to offering an opinion on issues not directly observed.
In applying its holdings to the case, the Court rejected the veteran’s argument that his examination be conducted during a flare-up, as the record did not indicate the frequency or duration of flares or what precipitates them, other than the veteran’s report of driving a mower and lifting during the September 2015 VA examination. The Court concluded that there was no basis for concluding that the September 2015 VA examination to be inadequate solely on the basis that it was not conducted during a flare of the shoulder, elbow/forearm, and hand disabilities.
However, indicating that DeLuca and its progeny clearly anticipate that examiners need to estimate the functional loss that would occur during flares, the Court found the September 2015 VA examination inadequate for failing to provide the estimation.
The Court found that the examiner, although acknowledging that the veteran was not then suffering from a flare of any of his conditions, failed to ascertain adequate information – frequency, duration, characteristics, severity, or functional loss – regarding his flares by alternative means. The VA examiner failed to elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, to include the veteran’s lay information – or explain why she could not do so.
The Court indicated that although the VA examiner couched her refusal to offer an opinion regarding flares in broad terms, stating that there is “no conceptual or empirical basis for making such a determination without directly observing function under these circumstances,” the apparent universality of the statement is contradicted by the VA Clinician’s Guide, which specifically advises examiners to try to procure information necessary to render an opinion regarding flares from veterans. The Court noted that the guidance recognizes that direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion. The Court further noted that the examiner did not elicit information from the veteran regarding flares’ severity, frequency, duration, or functional loss manifestations, nor did she indicate whether such information could be gleaned from medical records or other sources available. Also, the Court indicated that the acceptance of an examiner’s statement that an opinion cannot be provided without resort to speculation cannot be accepted unless it is clear that it is predicated on a lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner.
The Court found that there was no indication in the Board decision that the VA examiner obtained all “procurable medical evidence” before declining to offer an opinion on flares, nor did the Board sufficiently address whether the examiner’s professed need to observe the veteran during flares of his conditions reflected something other than her individual ability to provide the requested opinion. Therefore, the Court determined that it could not conclude that the Board complied with Jones in accepting the September 2015 VA examination as inadequate.
The Court set aside the Board decision and remanded for additional development and readjudication consistent with its decision.
CAVC case number: No. 16-1385