Sharp: DeLuca, Lay Statements and Inadequate Medical Examinations

Sharp v. Shulkin, Case Number 16-1385, decided September 6, 2017 examines a medical examination’s adequacy in light of its statement that “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 Court began by noting that DeLuca states

that a VA joints examination that fails to consider the factors listed in §§ 4.40 and 4.45 is inadequate for evaluation purposes. Specifically, for an examination to comply with § 4.40, the examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in that regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." … Flareups, in other words, must be factored into an examiner’s assessment of functional loss.

(internal quotation marks and alteration omitted);

The Court also noted that the VA Clinician’s Guide states “When conducting evaluations for musculoskeletal disabilities, examiners are instructed to inquire whether there are periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. See generally id., ch. 11. These instructions appear in worksheets pertaining to musculoskeletal examinations of the spine, shoulders, elbows, wrists, hips, knees, ankles, feet, and hands, as well as muscles.”

The Court notes that an examination during a flare-up is not always required and that sometimes a medical opinion can state it can’t offer an opinion without resorting to speculation.  Id. at *6-7.  But, the Court notes that Jones v. Shinseki, 23 Vet. App. 382 (2010), “permits the Board to accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this 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.”

The Court then finds in this case the Board failed to provide adequate or bases for its determination the examination was adequate.  It then importantly notes “Fortunately, neither the law nor VA practice requires that an examination be conducted during a flare for the functional impairment caused by flares to be taken into account. Instead, DeLuca and its progeny clearly, albeit implicitly, anticipated that examiners would need to estimate the functional loss that would occur during flares, as is evident from the fact that Mr. DeLuca's left shoulder disorder flared only "at times.”  Id. at *8.

Thus, the Court noted:

The critical question in assessing the adequacy of an examination not conducted during a

flare is whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares. See Mitchell, 25 Vet.App. at 44.  Moreover, because the September 2015 VA examiner declined to offer an opinion as to additional function loss during flares "without directly observing function under these circumstances," R. at 125, her position is at odds with VA's guidance on the matter. As noted above, the VA Clinician's Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves.

Id. at *9.  Thus, the examination here was inadequate because the examiner did not elicit relevant information as to the veteran’s flare-ups or ask him to describe the additional functional loss during flares or explain why the examiner failed to do so.  Id.  The Board also erred by relying on this inadequate examination.  Id. at *11. 

The Court then dealt with the Secretary’s argument that the record did not contain adequate information as to functional loss and turns the argument against the VA.  It stateds “the Court agrees, with the caveat that the examiner herself was responsible for

failing to elicit such information. However, to the extent that the Secretary is asserting that a veteran's statements can never provide an adequate basis on which to formulate an opinion regarding additional functional loss during flares, that assertion is inconsistent with this Court's case law and VA's own practice as set forth in VA's Clinician's Guide.”  Id. at *11. 

In a footnote, the Court does state an examiner or the Board is not required to accept a veteran’s allegations regarding flare-ups if inconsistent with other reliable evidence.  Id. at n. 5.

This decision by Judge Bartley is a powerful tool to veterans.  It forces the VA to seriously consider the lay statements of veterans regarding functional loss under DeLuca.  It also underscores the fact a veteran should be able to articulate the functional loss aspect of his musculoskeletal disabilities before he goes into an examination.

Decision by Judge Bartley, joined by Judges Pietsch and Greenberg.