Many veterans file claims for disabilities that, while chronic, are worse on some days than on others. So, while on a typical day a veteran with a disability may experience pain in the 4/10 range and have full range of motion, on another day when the veteran experiences a flare-up of his condition, he may experience 10/10 pain and have limited range of motion. Unfortunately for our hypothetical veteran, there is no way to guarantee that the veteran will receive a VA Compensation and Pension examination during a flare-up. Not observing the impact of a flare-up on the veteran's functionality could result in a drastically lower rating for the veteran’s disability.
The Court of Appeals for Veterans Claims (CAVC) has taken steps to address this issue. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the CAVC specifically ordered the VA to consider whether the flair-up could significantly reduce the veteran’s ability to function and allowed for a higher rating if the flair-up did reduce the veterans functionality. However, while the CAVC did mandate that the VA consider the impact of a flare-up, the CAVC did acknowledge that in some instances determining the impact of a flair-up would be impossible without resorting to speculation. As a result, in Jones v. Shinseki, 23 Vet. App. 382 (2010), the CAVC found that a VA medical examiner can issue an opinion that the impact of a flare-up cannot be determined without resorting to speculation, if it is clear that the examiner’s opinion was informed and reflected a diligent search for relevant medical information and was based on sufficient facts and data.
While the Jones opinion may seem like it provided an easy shortcut for VA medical examiners by allowing them to simply declare an issue speculative, a recent opinion has made it clear that the CAVC will not tolerate VA medical examiners simply making uninformed declarations that an issue is too speculative to give an opinion on. In Sharp v. Shulkin, docket number 16-1385, the CAVC found that a VA medical examiner who does not ask the veteran about relevant information regarding a veteran’s flare-ups, has conducted an inadequate VA medical examination. When a medical examination is found to be inadequate, the CAVC requires the VA to provide another medical examination.
To conclude, VA medical examiners have a duty to consider whether a veteran experiences flare-ups of his condition, and, if so, to consider what functional impact the flare-up would have on the veteran. In some instances, VA medical examiners may be unable to give an opinion on the impact of a flare-up without resorting to speculation. In those instances, the medical examiner may issue an opinion stating that they are unable to determine the impact of a flare-up without resorting to speculation. However, when an examiner concludes that they cannot give an opinion without resorting to speculation, it must be clear that the examiner’s opinion was informed and based on all relevant facts. If the medical examiner fails to consider all relevant information, than the opinion is inadequate and the veteran must be afforded another medical examination.
If you suffer from flare-ups related to a chronic condition and believe your disability rating decision does not reflect the severity of your condition, you may be entitled to a higher rating. Call our lawyers for veterans at (800) 953-6224 or complete our free online veterans disability case evaluation form.
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