Jones: What Must the VA do to obtain an Adequate Medical Examination? Adequate?

Adequacy of A Medical Examination

The case of Michael H. Jones v. Eric K. Shinseki, Opinion Number 07-3060, decided March 25, 2010, remanded a denial for hearing loss and erectile dysfunction.

The Board of Veteran Appeals had denied an compensation rating for right ear hearing loss, service connection for left ear hearing loss, and service connection for erectile dysfunction secondary to Type II diabetes mellitus.

The principal issue before the Court was whether the VA had fulfilled its duty to assist by obtaining two VA medical examinations in which the physicians concluded that they were unable to render an opinion whether there was a causal link between the current disabilities and service without resorting to “mere speculation.”

Regarding the hearing loss, the physician opined that the right ear hearing loss was service connected but that regarding the left ear hearing loss, “there is insufficient information to resolve the etiology and onset of the left ear hearing loss without resorting to mere speculation.” When specifically questioned regarding tinnitus, the physician noted two different accounts of the initial onset and stated “it is not possible to resolve the issue of etiology without resort to speculation.” Regarding the erectile dysfunction, a physician stated “I cannot resolve [the etiology] issue without resort to mere speculation.” The Board denied service connection and noted the inability of the medical examiners to opine on the etiology issue without resort to speculation.

The veteran argued the VA had not fulfilled its duty to assist in providing a medical examination when the examination fails to proffer an opinion on the etiology of a disability and that the VA is required to seek additional opinions until one of two things occur: (a) a definite position on the etiology question is given, or (b) the VA formally concludes that no further examination should be undertaken because no reasonable possibility exists that such assistance would aid in substantiating the case.

The Court rejected the idea that the VA must undertake additional examinations until formally concluding further examinations are futile. However, the court did determine “it just be clear, from some combination of the examiner’s opinion and the Board’s analysis of the record, that the examiner has not invoked the phrase ‘without resort to mere speculation’ as a substitute for the full consideration of all pertinent and available medical facts to which the a claimant is entitled.”

The question essentially faced by the Court is what happens a medical examination states it cannot give an assessment of causation without resorting to speculation. The Court basically allows that an examination can be adequate and conclude without giving a clear picture of etiology. However, the clear to say the medical examiner cannot refuse to offer an opinion of etiology based on mere speculation to short circuit careful consideration of the claim and states that it will look at the following to determine the adequacy of the examination.

Generally the Court determined the opinion, “must be clear on the record that the inability to opine on questions of diagnosis and etiology is no the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion.” The Court specifically noted the examination must explain why a statement would be speculation and pointed to the following considerations: is it based on sufficient facts or data, the physician has research medical literature on the question, the physician should clearly identify the facts that cannot be determined and whether additional testing would be helpful.

In short, the VA does not violate the duty to assist by relying upon a medical examination that does not make a statement of diagnosis or etiology if the physician has done all that reasonably should be done to become informed about a case and carefully explains why he cannot make a determination.

This finding probably will not have any real impact on how a case should be developed by a veteran or his advocate. It is helpful to obtain independent medical opinions and to perform research in medical treatises to submit to the VA when they are considering the claim. However, it is likely the VA will develop a checklist they feel they can meet and then feel comfortable refusing a diagnosis or statement of etiology based on “mere speculation.” The result might be more denials for the unwary and unprepared. However, it might also offer an opportunity to appellant’s to argue that research of medical literature wasn’t performed, a potentially potent argument for future appeals. It also is interesting to note that in addressing the tinnitus claim the physician had essentially weighed the credibility of two accounts given by the veteran and made his determine based on that, the Court clarified the factual question should have been resolved by the Board as the factfinder and then the examiner asked to provide an opinion based on the Board's finding.

The concurring opinion by Judge Lance is also helpful in that it clarifies that if an opinion indicates a disability has only two potential causes and at least on is related to service, then the inability to provide a reason why one is more likely the cause of the disability would place the evidence in equipoise and the benefit of the doubt rule would apply and work to the benefit of the veteran.

Decision written by Judge Davis and joined by Judges Kasold and Lance with a short concurrence by Judge Lance.