Citation Nr: 20006237 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 19-01 858 DATE: January 24, 2020 REMANDED Whether new and material evidence has been received sufficient to reopen a claim for service connection for pes planus is remanded. Whether new and material evidence has been received sufficient to reopen a claim for service connection for back pain, to include as secondary to pes planus, is remanded. Service connection for right hip pain, as secondary to pes planus, is remanded. Service connection for left hip pain, as secondary to pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1981 to June 1984. The matter comes before the Board from a January 2017 rating decision. The Board notes that the questions of “whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries.” See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019) (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional’s qualifications in every case as a precondition for the Board’s reliance upon that person’s opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). However, this presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the Veteran challenges the competency of a medical examiner, “[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion.” Id. at 1381. In the Veteran’s VA Form 9 Appeal to the Board, the Veteran’s representative raised a challenge to the competency of the VA examiner that provided the Veteran with a VA examination pertaining to his pes planus in November 2014. The representative requested the examiner’s curriculum vitae, VA credentialing documents, and any other evidence establishing the examiner is legally competent to render an opinion in the case. The Board finds that the representative’s challenge meets the Francway criteria, as it is more than just general assertions of inadequacy. Hence, the challenge is sufficient to shift the burden of persuasion to the VA to establish the examiner’s qualifications by providing information about those qualifications to the Veteran and his representative. In addition, the information to be provided is also necessary to allow the Board to make the required factual finding pertaining to the VA examiner’s competency. The Board notes that the representative requested that the inquiry into the examiner’s competency be construed as a request under the Freedom of Information Act/Privacy Act, and that a Board decision be stayed until the information requested was provided to the Veteran. The requested documents will have to be generated, and therefore the Board notes that addressing the request under the Freedom of Information Act and remanding the case to secure the VA examiner’s credentials does not prejudice the Veteran, as the outcome would be the same if stayed under the Privacy act and the provisions of 38 C.F.R. § 20.1200. As the adjudication of the issue of whether new and material evidence has been received sufficient to reopen a claim for service connection for pes planus is tied to any arguments the representative may make or any evidence the representative may put forward pertaining to the issue and the VA examiner’s competency, the issue warrants remand. In addition, the issues of whether new and material evidence has been received sufficient to reopen a claim for service connection for back pain, to include as secondary to pes planus, service connection for right hip pain as secondary to pes planus, and service connection for left hip pain as secondary to pes planus, are inextricably intertwined and require remand as well. Accordingly, a remand is warranted to secure the qualifications of the VA examiner. The matters are REMANDED for the following action: Obtain copies of the curriculum vitae and other credentialing documents for the VA examiner who conducted the Veteran’s examination pertaining to his pes planus in November 2014. Upon receipt of the documents associate them with the Veteran’s file, and provide a copy to the Veteran and his representative. If the requested documents are unattainable, then the Veteran and his representative should be notified, and it should be documented in the Veteran’s record. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.