Savage: Again

Savage: The VA’s Duty to Request Clarification, Again

The decision in James E. Savage v. Eric K. Shinkseki, Opinion Number 09-4406, decided January 4, 2011, was based on a motion to reconsider a November 2010 decision which 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 found where the information in a private report if clarified might reasonably help substantiate the claim (because it provides information favorable to the claimant that is not otherwise included in the record), the duty to assist by undertaking reasonable efforts to obtain evidence needed to substantiate the claim is not fulfilled until such clarification is sought or the Board explains why clarification is not necessary. Id. at *12. The Court seems to contemplate a letter to the private examiner or claimant stating the examination report is unclear or insufficient, why, and requesting further information or clarification. Id. at *14. If no response is received, the VA may continue on the path of adjudication.

The Court said “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 either (1) ask the private examiner to clarify the report, (2) request that the claimant obtain the necessary information to clarify the report, or (3) explain whey such clarification is not needed. Any request for clarification to a private examiner or to a claimant should clearly indicate what further action needs to be taken to make the insufficient private examination report acceptable for VA consideration.” Id. at *14-15.

This new statement of the rule has implications for possible abuse by the VA in needlessly requesting clarifications. However, the Court said “we do not interpret VA statutes and regulations as establishing a broad requirement that VA inquire of private medical experts regarding the opinions expressed in their examination reports or the general bases therefore. Indeed, we do not expect that clarification of a private examiner report will be necessary in most instances.” Id. at *16.

Of course, the holding could also be used by any number of claimants where the private medical examination’s findings were rejected as the Board would appear to have found the report “not suitable for rating purposes” for some reason or another. The Court tried to limit these appeals by saying “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.” However, I suspect a strong argument can be made that the information is relevant, factual, and probative. You will notice I left out objective because I’m not sure what this means in a private medical opinion.

The substituted opinion seems to be very similar in result to the earlier and again presents a major change. I suspect the VA response will be letters to veteran as opposed to the physician. Frankly, as a practitioner, I would rather get the VA letter first and then be able to go to the physician myself for what else is needed. The decision offers opportunities for appellate counsel to win a case but I am also concerned this decision will add another layer of waiting and delay to a process that is filled with such.

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