Citation Nr: 20021143
Decision Date: 03/24/20	Archive Date: 03/24/20

DOCKET NO. 10-02 115A
DATE: March 24, 2020

REMANDED

Entitlement to service connection for the cause of the Veteran's death is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 1942 to November 1945. The Veteran died in October 2008. The appellant claims as the surviving spouse. 

1. Entitlement to service connection for the cause of the Veteran's death is remanded.

On July 23, 2019, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a panel decision in Francway v. Wilkie, 2018-2136, affirming the decision of the United States Court of Appeals for Veterans Claims (Court) which found that when a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. The Court held that the challenge must be more than a general assertion that an examination or opinion is inadequate and must be 

 

raised by the Veteran in the first instance. A challenge raised under the above circumstances rebuts the presumption of competency and VA must satisfy its burden of persuasion as to the examiner’s qualifications by providing the Veteran with information about the qualifications of the examiner.

The brief submitted by the appellant’s representative questions the competency of the August 2019 VA examiner which meets the Francway criteria. The challenge is beyond general assertions of inadequacy and is sufficient to shift the burden of persuasion over to VA to establish the examiner’s qualifications by providing information about those qualifications to the Veteran. The information provided under the precepts in Francway is also fundamental to allowing the Board to make the required factual finding as to whether the medical examiner is competent. The representative also requested the credentials of the examiner, which must then be provided as part of the duty to assist. The claim is remanded to secure the qualifications of the examiner such that competency may be adjudicated.

The matter is REMANDED for the following action:

1. Appropriate action must be taken to respond to the requests from the representative for copies of the curriculum vitae and other credentialing documents for the VA examiner who rendered the August 2019 nexus opinion regarding the Veteran’s cause of death.

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.  If the benefit sought is not granted to

 

the appellant’s satisfaction, send the appellant and her representative a Supplemental Statement of the Case.  If necessary, return the case to the Board for further appellate review.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Creegan

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.