The VA has a duty to substantiate each claim. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. See 38 C.F.R. §3.103(a).
****A medical opinion is only necessary when there is not sufficient medical evidence of record to make a decision on the claim. Reviewing Evidence Before Determining an Examination is Necessary, Part IV, Subpart i.1.A.1.c.
Why do they think they need a new opinion?
The VA may think they need a new medical opinion because the requested opinion was not provided initially or the opinion was not properly supported by a valid rationale and/or by the evidence of record.
Why do they think they need more evidence?
The VA may think they need more evidence if a new medical opinion would provide a more complete picture of a question at issue or if the evidence of record is questionable or conflicting.
Why do they think they need clarification?
The VA may think they need additional clarification of a positive medical opinion if (1) the same disability has been diagnosed differently by different examiners, or (2) the conclusions or findings have been expressed in ambiguous or equivocal terms.
Are there any guardrails?
“Decision makers must maintain objectivity when assigning weight to a claimant’s evidence and may not develop with the purpose of obtaining evidence to justify a denial of the claim. Instead, decision makers must be able to support the determination that development is needed.” See VA Adjudication Manual, M21-1MR, When Development to Obtain Additional Evidence May Be Needed, Part V, Subpart ii.3.B.1.a.
This means the VA cannot develop evidence for the purpose of obtaining evidence against a claim, and “must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose.” Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The VA is not required to rely upon an adequate private opinion “unless failure to do so would be arbitrary and capricious.” Kowalski v. Nicholson, 19 Vet. App. 171, 177-78 (2005).