VA's Duty to Assist in Clarifying a Private Medical Opinion

Savage: The VA’s Duty to Request Clarification

The decision in James E. Savage v. Eric K. Shinkseki, Opinion Number 09-4406, decided November 3, 2010, involved whether the VA had a duty to seek clarification from a private physician regarding medical notes.

The case involved a dispute over the appropriate disability rating for hearing loss. Private physician records suggested a higher rating but the VA determined they were not adequate for VA rating purposes because it was unclear whether the speech discrimination tests were conducted using the Maryland CNC test. Importantly, the rating schedule specifically calls for use of the Maryland CNC test.

The Court noted the general duty to assist and 38 C.F.R. § 19.9 which says “If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a [Board member] shall remand the case to the agency or original jurisdiction, specifying the action to be undertaken.” Id. at *6. 38 C.F.R. § 4.2 specifically calls for requesting an explanation of an inadequate examination and the Court found this also extended to private physician reports. Thus, the Court determined when a private examination report reasonably appears to contain information necessary to properly decide a claim but it is “unclear” or “not suitable for rating purposes,” and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to ask the private examiner to clarify the report, or the Board must explain why such clarification was not needed. Id. at *14.

While potentially a broad ruling, the Court was careful to limit it saying they do not intend the VA to “inquire of private medical experts regarding the opinions expressed in their examination reports or the general bases thereof. Indeed, we do not expect that clarification of a private examination report will be necessary in most instances.” Id. at *16. “Rather, our holding is limited to those instances in which the missing information is relevant, factual, and objective—that is, not a matter of opinion—and where the missing evidence bears greatly on the probative value of the private examination report.” Id. at *16. The Court said, in this case “the questions of which speech recognition test was used is a factual, objective one to which there is a yes or no answer; the question of whether the Maryland CNC Test was used does not in any way rely on the opinion of the examiner.” Id. at *16.

Thus, this case will make it harder for the VA to ignore a medical opinion for a seemingly technical point while also opening the door to the VA requesting additional information from a private physician. If the VA interprets the case narrowly, the implications are probably also narrow.

Decided by C.J. Kasold, and J. Hagel and Davis.