Veteranclaims’s Blog

December 17, 2018

Speculative medical opinion; Polovick v. Shinseki, 23 Vet.App. 48 (2009); may well be; Hood v. Shinseki, 23 Vet.App. 295 (2009); impossible, in retrospect; Tirpak v. Derwinski, 2 Vet.App. 609 (1992); may or may not; Goss v. Brown, 9 Vet.App. 109 (1996); could not rule out; Bloom v. West, 12 Vet.App. 185 (1999); could;

Hood v. Shinseki, 23 Vet.App. 295 (2009) (in claim alleging VA
negligence in medical care, holding that where physician’s opinion
that it was “impossible, in retrospect” to reach medical conclusion
of cause of claimant’s illness in VA medical facility was “at best,
equivocal” and insufficient to support such nexus)

Polovick v. Shinseki, 23 Vet.App. 48 (2009)(holding doctor’s statement that veteran’s brain tumor “may well be” connected to Agent Orange
exposure was speculative)

Bloom v. West, 12 Vet.App. 185 (1999) (noting that the use of the
term “could,” without other rationale or supporting data, is

Goss v. Brown, 9 Vet.App. 109 (1996) (noting that the use of the
phrase “could not rule out” was too speculative to establish
medical nexus)

Tirpak v. Derwinski, 2 Vet.App. 609 (1992) (holding that medical
opinions are speculative and of little or no probative value when a
physician makes equivocal findings such as “the veteran’s death
may or may not have been averted”)

Mariano v. Principi, 17 Vet.App. 305 (2003) (observing that
flawed methodology in creating medical report renders physician’s
opinion of “questionable probative value”)

Polovick v. Shinseki, 23 Vet. App. 48 (2009)(a medical opinion
may be speculative when it uses equivocal language such as “may
well be,” “could,” or “might”).

Jones v. Shinseki, 23 Vet.App. 382, 390 (2010)

“Thus, 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. Jones v. Shinseki, 23 Vet.App. 382, 390 (2010) (citations omitted). This Court further explained that an examiner’s claim that a particular opinion would require speculation “should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner,” and that “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.” Id. Moreover, 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.” Id.
In the present case, the February 2011 VA examiner stated that any opinion as to whether the veteran’s basal cell carcinoma was “specifically due to sun exposure while in service is speculation, because so many years have elapsed between his time in [Vietnam] and now.” R. at 262 (capitalization altered). But from this statement it is not clear whether the examiner was asserting that, because of the number of years since Mr. Glinsmann’s service, the issue cannot be determined
from current medical knowledge, or whether the particular examiner is not qualified to render such an opinion. Nor is it apparent from the opinion whether the examiner investigated relevant medical literature when arriving at his conclusion.
Moreover, the Board did not explain its interpretation of the February 2011 VA examiner’s opinion, merely “acknowledg[ing]” his statement “that he was unable to relate the [v]eteran’s basal cell carcinoma to sun exposure in service without speculation.” R. at 21. There is no citation in the Board’s decision to Jones or any other case suggesting that the Board considered the ambiguity in the examiner’s assertion or the sufficiency of the examiner’s reasoning as to speculation. See Allday and Gilbert, both supra. It is clear, however, that the Board, by relying on the February 2011 VA examiner’s opinion, implicitly found it to be adequate. See R. at 20-21. In light of Jones, this finding of adequacy was erroneous. See D’Aries v. Peake, 22 Vet.App. 97, 103-04 (2008) (holding that whether a medical opinion is adequate is a finding of fact reviewed under the “clearly erroneous”

standard, which means that “although there is evidence to support [the finding], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”).

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