Have you seen this phrase in your Rating Decision from the VA (or even in the C&P Examiner’s notes of examination: “It is not possible to resolve the issue of etiology [medical causation] of condition X without resort to speculation.”
If you have seen this phrase, then it is quite possible that the VA has failed in its duty to assist.
From the outset, let me say that I am sympathetic to the many VA Doctors who are trying, honestly, to do the job of being a doctor. Many times, the VA puts these treating physicians in the uncomfortable position of having to play detective, not doctor. Many of these doctors, uncomfortable with making a determination about the precise etiology of a particular condition, will simply say that they cannot know without speculation. The problem is that the VA claims examiners latched on to this language, and started cutting and pasting it into the Ratings Decisions.
The language, originally intended by the Doctor to state that he (or she) simply didn’t have enough medical evidence to determine etiology or service-connection became a tool for the VA Claims Examiner to avoid doing their job.
In a March 2010 decision, the Court of Appeals for Veterans’ Claims (CAVC) said “no mas” to this kind of Rating Decision. The BVA came to several conclusions about the “mere speculation” language in a Ratings Decision or Examiner’s Opinion:
1) When a C&P examiner concludes that service-connection cannot be determined without resort to speculation, it must be clear, from either the examiner’s statements or the decision of the BVA, that the examiner has considered “all procurable and assembled data,” by obtaining all tests and records that might reasonably illuminate the medical analysis; when the record leaves the issue in doubt, it is the BVA‘s duty to remand for further development
2) Before the BVA may rely aVA medical examiner’s conclusion that a service-connection opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the BVA‘s review of the evidence.
3) A medical examiner who states “no conclusion as to etiology or diagnosis can be reached without resorting to speculation” may be obligated to research medical literature; his/her conclusions as to service connection must reflect the limitations of knowledge in the medical community at large and not those of a particular examiner or doctor;
4) A VA medical examiner who states “no conclusion as to etiology or diagnosis can be reached without resorting to speculation” should clearly identify exactly what facts cannot be determined. The CAVC stated that it must be clear in the doctor’s remarks “…whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes…”
The CAVC made it clear that every situation where this language appears in a C&P Examiner notes or a Ratings Decision is not going to result in a finding that the opinion is inadequate. But, when the author used this phrase to “lazy” himself or herself out of writing a well-reasoned decision based on all of the evidence that should be available, considering the knowledge of the medical community at large, and most importantly, articulating that it did so, it is quite likely that this phrase alone might suffice to get your VA claim for disability benefits remanding back to the BVA or the VA Regional Office to supply additional medical evidence or opinions.
The Attig Law Firm represents U.S. Veterans who have been denied benefits in their VA Disability claims for compensation due to injuries or diseases incurred during military service. The Firm currently represents peace-time and war-time veterans of all branches of the military, at all levels of the VA disability claim process (VA Regional Office, Board of Veterans’ Appeals, and the Court of Appeals for Veterans’ Claims). Contact the Attig Law Firm if you would like to discuss your claim for disability benefits before the VA.
No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans. The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, their may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.
It is very important that we note that each and every Veteran’s claim is different. Just because we were able to secure substantial past-due benefits for one Veteran does not mean or imply that we will be able to do so for you. In some cases, we may not be able to secure you any financial compensation due to the facts of your particular case.
It is best to consult with a lawyer familiar with VA Disability claims to examine your particular case. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Disability attorney.
VA Disability attorneys at the Attig Law Firm, PLLC, represent Veterans in their VA Disability Claims not only in Texas, Arkansas, Oklahoma, but in VA Disability Claims all around the United States, Puerto Rico, and even overseas Veterans in their claims for disability compensation from the Department of Veterans Affairs.