HomeVeterans Guide to VA Claim FilingBoard of Veterans AppealsIndependent Medical Examinations

9.4. Independent Medical Examinations

It is well established that in certain circumstances, the Board may conduct its own evidentiary development by, for example, requesting an Independent Medical Examination ("IME") opinion.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  In so doing, the Board must ensure that it provides the appellant fair process in the adjudication of his claim.  See Austin v. Brown, 6 Vet. App. 547 (1994); Thurber v. Brown, 5 Vet. App. 119 (1993).  Specifically, the Court has provided that before the Board relies, "in rendering a decision on a claim, on any evidence developed or obtained by it ... the B[oard] must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it."  Thurber, 5 Vet. App. at 126.  The Court has explained that the appellant's "reasonable opportunity to respond" to an IME opinion is "not limited to argument or comment, but also include[s] the claimant's right to submit additional evidence."  Austin, 6 Vet. App. at 551.

 "The Board may seek to obtain that [additional] development [of the record] itself through a VA Veterans Health Administration or non-VA IME opinion, or through a remand to the RO for it to obtain an IME opinion."  Perry v. Brown, 9 Vet. App. 2, 6 (1996).  It is within the discretion of the Board to determine whether further development is needed to make a decision on the claim.  See Shoffner v. Principi, 15 Vet. App. 208, 213 (2002); Winsett v. West, 11 Vet .App. 420, 426 (1998) ("[W]hether the Board chooses to refer a particular case for an independent medical opinion is entirely within its discretion."); see also 38 U.S.C. § 7109(a) (the Board may seek an advisory medical opinion when such an opinion "is warranted by the medical complexity or controversy involved"); 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary.").  It is entirely within the discretion of the Board to determine whether an IME is warranted.  See 38 U.S.C. § 7109(a); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

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