Retrospective Medical Opinions
The Challenge of Sparse Medical Records
We are all familiar with cases involving sparse medical records. Claim folders with minimal treatment records, both service and post-service, pose a challenge for all claims, including claims for service-connection, claims for increased ratings and even for claims seeking appropriate effective dates for disability awards.
In 1990, the veteran filed a claim for service-connected psychiatric disorder. For years, the claim cycled through the system, up from the regional office (RO) to the Board of Veterans’ Appeals to the CAVC and down again. Finally, in 2010, the veteran is granted service connection. The claim will obviously have a long retroactive period, 20 years in this case. But the hard question is what the disability level awarded should be during this retroactive period. How does the VA evaluate this question in a vacuum, with little or no medical evidence covering this period?
Case Example: Chotta v. Peake
In Chotta v. Peake, 22 Vet.App. 80 (2008), the CAVC provided one answer.
There, the Veterans Court held that a claimant may be entitled to a so-called retrospective medical examination, explained below:
If a disability rating cannot be awarded based on the available evidence, the Board must determine if a medical opinion is necessary to make a decision on the claim. To determine if a medical opinion or examination is necessary, the Board must consider whether there is competent medical or lay testimony that indicates that a higher disability rating may be appropriate, even though it was insufficient to grant such a rating. This may include obtaining a retrospective medical opinion.
In Chotta, the veteran filed his original claim for service-connected psychiatric disability in March 1946. The claim was denied in a May 1946 rating decision. In April 1997, a claim to reopen his previous denied claim was filed and eventually granted, with a 100 percent disability rating based upon individual unemployability (TDIU), effective
Separately, the veteran filed a claim for clear and unmistakable error (CUE), seeking to revise the denial of his original claim in the May 1946 rating decision.
At the CAVC, service-connection was granted, and the claim was remanded back to the RO to adjudicate the issues of the proper disability level and effective date for the psychiatric disability. In assessing these issues, the RO noted that the claims folder was devoid of any medical evidence related to the claimed psychiatric disorder from a 50-year period from 1946 until 1997.
Based upon this absence of evidence, the RO stated that it could not reconstruct valid evaluations between 1947 and 1997. Instead it arbitrarily awarded a 50% disability rating for PTSD effective from September 1947 until January 1999, and a 70% disability rating from January 20, 1999. (The veteran had previously been awarded TDIU, effective April 1997.) The Board affirmed the RO decision.
The CAVC vacated the decision, holding that the VA may be required to obtain a current medical opinion, which addresses the level of the veteran’s disability during the retroactive period. The court explained that, if current lay evidence supported a higher disability rating relating to the retroactive period, such as statements from the veteran or from his friends or family members, then an examiner could offer his opinion as to the likely level of disability during this period. This inquiry, of course, would involve a credibility determination of the lay statements.
Applying Chotta v. Peake:
The Chotta v. Peake case highlights the opportunity to obtain additional evidence that supports a higher disability rating relating to the retroactive period. Additional evidence can include an Independent Medical Examination (IME) and credible statements from the veteran and his friends or family members that support the veterans disability during the retroactive period.
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