Sharp v. Shulkin, 29 Vet.App. 26 (Sept. 6, 2017)

HELD: Whether VA is obligated to obtain an examination during a flare-up period depends on the nature of the disability and the frequency and duration of the flare. The Board cannot rely on an examiner’s broad statement that an opinion as to the extent of functional loss during a flare-up is not possible “without resort to speculation” because there is “no conceptual or empirical basis for making such a determination” without first determining that this statement “is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” Lay statements can provide “an adequate basis on which to formulate an opinion regarding additional functional loss during flares.”

SUMMARY: Mr. Sharp was service connected for arthritis of both shoulders, rated 10% each, and both hands and forearms, rated 0%. He appealed for higher ratings. The Board remanded for an examination that included range-of-motion (ROM) testing, and asked the examiner to explain the extent to which the veteran has “functional loss due to pain” or any other symptoms “during flare-ups and/or with repeated use.”

In September 2015, a VA examiner noted “the veteran’s reports of experiencing periodic flares,” but indicated that he was not experiencing a flare-up during the examination. The examiner stated that the veteran reported “additional functional loss during flare periods in terms of increased pain and lack of endurance,” but concluded that “it was not possible without mere speculation” to estimate the loss of ROM or functional loss during flares “because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances.”

The RO granted 10% ratings for Mr. Sharp’s forearm and hand conditions, but denied higher ratings.

The Board affirmed the RO’s decision, finding that “VA substantially complied” with its remand, and that the examiner provided an adequate explanation for not providing an opinion regarding functional loss during a flare-up.

On appeal to the Court, Mr. Sharp argued that the Board clearly erred in accepting the VA medical opinion as adequate because the examiner failed to estimate the additional functional loss during a flare, as required by law and by the Board’s remand. The Secretary argued that this Court’s case law allowed the examiner to “decline to offer an opinion on the grounds that doing so would require resort to speculation.”

The Court summarized the current law surrounding the requirements for evaluating musculoskeletal disabilities, and stated that, according to the VA Clinician’s Guide, “examiners are instructed to inquire whether there are periods of flare,” and, if so, “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.” The obligation to obtain an examination during a flare-up period depends on the nature of the disability in the particular case. For example, if a veteran reports flare-ups that last weeks, it may be possible to schedule an examination during a flare, whereas it is impractical to require an examination during a flare that generally only lasts a few hours or a day. “Thus, the frequency, duration, and severity of flares are necessary considerations when determining whether VA must attempt to schedule an examination during a flare.” (citing Ardison v. Brown, 6 Vet.App. 405, 408 (1994) and Voerth v. West, 13 Vet.App. 117, 122 (1999)).

The Court further explained its holding in Jones v. Shinseki, 23 Vet.App. 382 (2010), as allowing “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.”

In this case, the Court found that there was no evidence of record regarding the frequency or duration of Mr. Sharp’s flare-ups other than the notes in the examiner’s report. Because of this, the Court determined that the Board did not err in finding the examination inadequate solely because it was not conducted during a flare.

However, the Court determined that even though VA is not required to obtain an examination during a flare-up, VA examiners are required to “estimate the functional loss that would occur during flares.” (citing DeLuca v. Brown, 8 Vet.App. 202, 204 (1995); Mitchell v. Shinseki, 25 Vet.App. 32. 44 (2011); and Petitti v. McDonald, 27 Vet.App. 415, 429-30 (2015) (holding that “credible lay evidence of functional loss due to pain, including during flare periods, observed outside of the VA examination context could constitute objective evidence in support of an evaluation”)). The Court determined that the examination in this case was inadequate because the examiner “did not elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional lost due to flares based on all the evidence of record—including the veteran’s lay information—or explain why she could not do so.”

The Court held that its “case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans.” The Court rejected the examiner’s broad statement regarding “no conceptual or empirical basis” for assessing functional loss during a flare because it is “contradicted by the VA Clinician’s Guide, which specifically advises examiners to try to procure information necessary to render an opinion regarding flares from veterans.”

The Court further reiterated its holding in Jones, stating that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resort to speculation, it must be clear that this is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.”

Finally, the Court rejected the notion that lay statements “can never provide an adequate basis on which to formulate an opinion regarding additional functional loss during flares” as “inconsistent with this Court’s case law and VA’s own practice as set forth in VA’s Clinician’s Guide.”