CAVC Decision January 24, 2017

Sharp

Sharp v. Shulkin, 29 Vet. App. 26 (2017)

Flare-Up Documentation Requirements

Summary

The Court clarified the VA's duty regarding flare-ups in musculoskeletal examinations. When a veteran reports flare-ups, the examiner must estimate the additional functional loss during flare-ups or explain why such an estimate cannot be provided. Simply stating that an opinion would be 'speculative' without explanation is inadequate. The examiner must elicit sufficient information about flare-ups to form an opinion.

Key Points

  • Examiners must estimate functional loss during flare-ups
  • Cannot simply say opinion would be speculative
  • Must explain why estimate cannot be provided if that's the case
  • Examiner must ask about flare-up frequency, duration, and severity
  • Strengthens DeLuca requirements for flare-up assessment
  • Inadequate flare-up opinions can be basis for remand

When This Applies

This case strengthens your ability to get proper consideration of flare-ups. If your examiner didn't ask about or address your flare-ups, or simply said they couldn't estimate additional loss without explanation, the examination may be inadequate. On appeal, argue that the exam didn't comply with Sharp.

Related Conditions

Back conditions Knee conditions All musculoskeletal conditions