HELD: Pursuant to the statutory duty under 38 U.S.C. § 5107(a) to assist a claimant in the development of facts pertinent to a claim, and the decisions of the Court of Veterans Appeals interpreting that duty, a Department of Veterans Affairs examiner must review a claimant's prior medical records when such review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions. However, such review may not be necessary in all cases. The determination as to whether review of prior medical records is necessary in a particular case depends largely upon the scope of the examination and the nature of the findings and conclusions the examiner is requested to provide.
ANALYSIS: General Counsel cited a number of precedent decisions of the United States Court of Veterans Appeals (the Court) which directed a review of prior medical records by a VA examiner, but found that, in most instances, the cases were expressly limited to the facts of the particular case and that the cases did not establish a generally applicable rule requiring review of prior medical records in connection with all VA compensation and pension examinations. Certain Court decisions, however, appear to assume that such a rule has been established when examinations pursuant to the "duty to assist" are scheduled. In this regard, a review of prior medical records, or examination reports, will often be necessary in the following scenarios:
1. when asking an examiner to determine the possible relationship between current disability and previously noted disability;
2. secondary service connection (including claims of aggravation of a nonservice-connected disability by a service connected disability);
3. the possible effect of nonservice-connected conditions on a service-connected condition;
4. the progression or improvement of a condition since a prior rating;
5. when evaluating conditions of fluctuating severity;
6. reconciliation of differing diagnoses; and
7. when there are private medical records which may be pertinent to assessment of the current level of disability.
It will not be necessary to review a veteran's prior medical records in all cases, even where an examination is requested in accordance with our duty to assist. There may be circumstances where the scope of the examination required by the duty to assist will be limited in such a way that review of a claimant's prior medical records may be of no assistance, such as when the examiner is asked only to determine whether the veteran has lost the use of a hand. Generally, where the necessary evidence to be developed through examination is limited to matters which do not implicate the claimant's prior medical history, then the examiner will not need to review the prior medical records in order to provide the required evaluation. It was also noted that the precedent decisions of the Court generally do not require that a claimant's entire claims folder be transmitted to or reviewed by an examiner prior to an examination. This requirement to review "records of prior medical treatment" may generally be met by transmitting to the examiner copies of all pertinent medical records. Transmittal of the entire claims file or of medical records pertaining to entirely unrelated conditions would generally not be required.
RECOMMENDATIONS: M21-1, Part VI, Ch. 1 should be revised to incorporate the provisions of this precedent opinion. Consideration should be given to the use of AMIE as much as possible, particularly when the veteran being examined is receiving outpatient treatment, or inpatient treatment, at the examining facility. Transfer of claims files should be limited to present guidelines for such transfer. In all other circumstances, copies of prior treatment records/examination reports will need to be copied and forwarded to the examining facility.
Question
allan
DECISION ASSESSMENT DOCUMENT
VAOPGCPREC 20-95 (07/14/95)
HELD: Pursuant to the statutory duty under 38 U.S.C. § 5107(a) to assist a claimant in the development of facts pertinent to a claim, and the decisions of the Court of Veterans Appeals interpreting that duty, a Department of Veterans Affairs examiner must review a claimant's prior medical records when such review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions. However, such review may not be necessary in all cases. The determination as to whether review of prior medical records is necessary in a particular case depends largely upon the scope of the examination and the nature of the findings and conclusions the examiner is requested to provide.
ANALYSIS: General Counsel cited a number of precedent decisions of the United States Court of Veterans Appeals (the Court) which directed a review of prior medical records by a VA examiner, but found that, in most instances, the cases were expressly limited to the facts of the particular case and that the cases did not establish a generally applicable rule requiring review of prior medical records in connection with all VA compensation and pension examinations. Certain Court decisions, however, appear to assume that such a rule has been established when examinations pursuant to the "duty to assist" are scheduled. In this regard, a review of prior medical records, or examination reports, will often be necessary in the following scenarios:
1. when asking an examiner to determine the possible relationship between current disability and previously noted disability;
2. secondary service connection (including claims of aggravation of a nonservice-connected disability by a service connected disability);
3. the possible effect of nonservice-connected conditions on a service-connected condition;
4. the progression or improvement of a condition since a prior rating;
5. when evaluating conditions of fluctuating severity;
6. reconciliation of differing diagnoses; and
7. when there are private medical records which may be pertinent to assessment of the current level of disability.
It will not be necessary to review a veteran's prior medical records in all cases, even where an examination is requested in accordance with our duty to assist. There may be circumstances where the scope of the examination required by the duty to assist will be limited in such a way that review of a claimant's prior medical records may be of no assistance, such as when the examiner is asked only to determine whether the veteran has lost the use of a hand. Generally, where the necessary evidence to be developed through examination is limited to matters which do not implicate the claimant's prior medical history, then the examiner will not need to review the prior medical records in order to provide the required evaluation. It was also noted that the precedent decisions of the Court generally do not require that a claimant's entire claims folder be transmitted to or reviewed by an examiner prior to an examination. This requirement to review "records of prior medical treatment" may generally be met by transmitting to the examiner copies of all pertinent medical records. Transmittal of the entire claims file or of medical records pertaining to entirely unrelated conditions would generally not be required.
RECOMMENDATIONS: M21-1, Part VI, Ch. 1 should be revised to incorporate the provisions of this precedent opinion. Consideration should be given to the use of AMIE as much as possible, particularly when the veteran being examined is receiving outpatient treatment, or inpatient treatment, at the examining facility. Transfer of claims files should be limited to present guidelines for such transfer. In all other circumstances, copies of prior treatment records/examination reports will need to be copied and forwarded to the examining facility.
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