Without Resort to Mere Speculation

On an Internet discussion forum, a veteran asked about a C&P examiner who said she could not render an opinion “without resort to mere speculation” regarding whether or not the veteran’s depressive disorder was incurred during military service.

Here was my reply:

Federal Courts Require a Detailed Explanation

Court of Appeals for Veterans Claims SealThe Court of Appeals for Veterans Claims (CAVC) addressed this issue directly in Jones v. Shinseki, 23 Vet.App. 382 (2010). Here are some quotes from the decision:

Stated another way, how thoroughly must an examiner develop and describe the information gathered and explain the essential medical reasoning before the Board may rely on his or her representation that an opinion cannot be rendered “without resort to mere speculation”? This phrase must not become a mantra that short circuits the careful consideration to which each claimant’s case is entitled.

In general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion.

…before the Board can rely on an examiner’s conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board’s review of the evidence.

Furthermore, the Secretary must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is “based on sufficient facts or data.” See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 302 (2009). Therefore, it must be clear, from either the examiner’s statements or the Board decision, that the examiner has indeed considered “all procurable and assembled data,” by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves, supra. When the record leaves this issue in doubt, it is the Board’s duty to remand for further development.

The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet.App. 509, 514 (1998). The phrase “without resort to speculation” should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner.

Finally, the examiner should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner’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. [emphasis added]

Those quotes are from pages 8 and 9 of the unpublished decision, or on pages 390-391 of the published decision. (The text of both versions is the same)

Insufficient Compensation and Pension Examination Reports

If an C&P psychologist or psychiatrist states that he or she cannot provide an opinion as requested by the Veterans Benefits Administration (VBA) “without resort to mere speculation”, but he or she does not provide a well-articulated rationale for this statement, the VBA will probably send the exam back as “insufficient for rating purposes” and instruct the examiner to either provide a sufficient rationale for their statement, or reach an opinion. 

C&P exam reports are more likely to be found insufficient, if the report does not:

  • cite any medical/psychological research literature
  • clearly explain precisely what facts cannot be determined
  • clearly review all the ‘evidence of record’ (“all procurable and assembled data”) — military records, treatment records, statements by the veteran or others, etc.
  • explain exactly why she could not determine if the psychological condition was incurred during military service
  • fails to conform to expectations the CAVC set for an examiner’s expert witness testimony (the exam report), as enunciated by the Nieves court:

(1) The testimony is based upon sufficient facts or data;

(2) the testimony is the product of reliable principles and methods; and

(3) the expert witness has applied the principles and methods reliably to the facts of the case.

Note that the federal courts use traditional legal terminology, whereas the VA has created its own terminology. Here is a ‘translation guide’:

  • Testimony = C&P examiner’s report.
  • Expert Witness = C&P examiner.
  • Expert Witness Opinion = Conclusions or opinions reached by the examiner that help to answer a legal question, e.g., diagnoses and the etiology of those diagnoses.