The Sharp v Shulkin case was summarized in an earlier lesson. Since this decision impacts many C&P examinations, here is a more in-depth explanation.

In Sharp v. Shulkin (Sharp v. Shulkin, 29 Vet.App. 26 (2017)), the Veterans Court held that although Jones v. Shinseki, 23 Vet.App. 382 (2010) allows VA to accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, that opinion is only acceptable after determining it is not based on

• the absence of procurable information,
• a particular examiner's shortcomings, or
• a general aversion to offering an opinion on issues not directly observed.

The Court held that, in cases where "an examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability," the determination that such an opinion cannot be provided without resorting to speculation when it is based solely on the fact that the examination was not performed during a flare-up is inadequate.

Rather, it must be clear that (1) the examiner considered all procurable information and assembled data before stating that an opinion cannot be reached; and (2) the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. The statement that an opinion cannot be provided without resorting to speculation, therefore, must be based on a lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner.

If the examiner concludes he or she is unable to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability without resorting to mere speculation, the examiner must provide a rationale explaining the basis for the speculative conclusion and identify the facts that cannot be determined (e.g., identifying specific evidence in the claims folder to support the conclusion). In addition, the examiner must demonstrate that he or she considered all procurable and relevant information, including medical treatment records, lay testimony, or both.

The Examiner

A medical opinion may be considered inadequate for rating purposes if your conclusion is not adequately justified, implies a general lack of knowledge, or demonstrates an aversion to opining on matters beyond direct observation. You cannot base an inability to estimate range of motion loss on not having examined or observed a claimant while he or she is experiencing a flare-up or demonstrating a repeated use over time status. You must use the Veteran's or Servicemember's history, examination findings, relevant evidence of record, clinical judgement, and medical expertise to opine on this issue.

Again, the Court specifically mentioned "musculoskeletal examinations of the spine, shoulders, elbows, wrists, hips, knees, ankles, feet, and hands, as well as muscles," when applying this standard. The application of Sharp v. Shulkin is thus limited to these cases.