James E. Savage v. Eric K. Shinseki
2011 U.S. Vet. App. LEXIS 14
| Vet. App. | 2011Background
- Savage appeals a October 22, 2009 Board decision denying a disability rating for bilateral hearing loss in excess of 10% (Nov 14, 2002–Mar 17, 2009) and in excess of 20% from Mar 18, 2009.
- Issue presented: VA duty to seek clarification of private medical examinations or VA progress notes; whether such clarification is required before the Board accepts or rejects those records.
- Court previously issued a November 3, 2010 opinion and later granted reconsideration; the current opinion vacates the prior decision and remands for further development consistent with its holding.
- Record included private audiological evaluations (2001–2008) and VA examinations/notes (2003, 2007, 2009) with variable word recognition testing and not always clear on Maryland CNC usage.
- Board concluded private records were not adequate for rating because it was unclear whether Maryland CNC testing was used, and declined to rely on them without clarification.
- Court holds that in some circumstances, VA must seek clarification from private examiners or explain why clarification is not warranted; the Board erred by not seeking clarification and by not addressing August/September 2009 VA progress notes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to seek clarification extends to private exams and VA progress notes | Savage: Board failed to seek clarification of unclear private tests and progress notes per 38 C.F.R. §§ 4.2, 19.9. | Secretary: §4.2 and §19.9 apply only to VA examinations, not private exams or VA progress notes; no duty to clarify unless necessary to decide the claim. | Yes; duty extends to private exams/VA notes; Board must seek clarification or explain why not. |
| Scope of §4.2 and §19.9 beyond VA examinations | Savage: §4.2/§19.9 require clarification for unclear non-VA evidence as well. | Secretary: these regs are limited to VA exams for rating purposes. | Regulations are not so limited; apply to unclear non-VA evidence when needed to decide the claim. |
| Applicability of Tyrues v. Shinseki to non-VA examinations | Tyrues requires Board to seek clarification rather than order a new VA exam; here the Board did not clarify. | Secretary: Tyrues supports some need for clarity; but only for VA exam scenarios. | Tyrues controls; Board must seek clarification or provide adequate justification for not doing so. |
| Board's handling of private reports and potential prejudice | Board improperly discarded favorable private reports without clarifying whether Maryland CNC was used. | Board properly weighed available evidence and relied on VA exams when private reports were unclear. | Remand required to obtain clarification or provide proper explanation; not harmless error. |
Key Cases Cited
- Tyrues v. Shinseki, 23 Vet.App. 166 (2009) (Board may seek clarification or remand for proper development)
- Padgett v. Shinseki, 23 Vet.App. 306 (2009) (well-established duty to address inadequate medical examinations)
- Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) (relevance of evaluating examination adequacy)
- Bowling v. Principi, 15 Vet.App. 1 (2001) (consideration of weight and adequacy of evidence)
- DeLuca v. Brown, 8 Vet.App. 202 (1995) (principles for evaluating medical evidence in rating decisions)
- Daves v. Nicholson, 21 Vet.App. 46 (2007) (context of returning examination reports for clarification)
- McGee v. Peake, 511 F.3d 1352 (Fed. Cir. 2008) (statutory duty to develop the record for veterans' claims)
- Fenderson v. West, 12 Vet.App. 119 (1999) (staged ratings and timing of disability assessments)
- Gilbert v. Derwinski, 1 Vet.App. 49 (1990) (duty to assist veterans in developing the claim)