Citation Nr: 20054414
Decision Date: 08/17/20	Archive Date: 08/17/20

DOCKET NO. 18-02 535
DATE: August 17, 2020

REMANDED

Entitlement to service connection for residuals of prostate cancer, to include as due to contaminated water at Camp Lejeune, is remanded.

REASONS FOR REMAND

The Veteran served on active duty March 1957 to March 1959.  The Department of Veterans Affairs (VA) is grateful for his service.  The Veteran died in April 2011; the appellant is his surviving spouse.  This claim has been recognized with the appellant as a substitute claimant, pursuant to 38 U.S.C. § 5121A (2012).  

Service connection for residuals of prostate cancer, to include as due to contaminated water at Camp Lejeune

In October 2018, the Board of Veterans’ Appeals (Board) denied the appealed claim.  The appellant appealed the denial, and in October 2019 the United States Court of Appeals for Veterans Claims (Court) approved a Joint Motion for Partial Remand (JMPR) vacating the Board’s decision and remanding the case for action consistent with the JMPR.  In April 2020, the Board remanded the claim for a records-based examination to further address Camp Lejeune water contamination nexus questions, as required pursuant to the JMPR, to support its readjudication of the claim for service connection for residuals of prostate cancer.

A records-based examination was conducted in June 2020 addressing questions posed by the Board’s remand.  The VA Regional Office (RO) then issued a supplemental statement of the case (SSOC) in June 2020 and the case was returned to the Board for further review.  

However, in July 2020, the appellant’s authorized representative submitted a Freedom of Information Act (FOIA) request for the credentials of the examiner who conducted the June 2020 records-based examination.  This FOIA request raises the issue of competency of the VA examiner.  As the United States Court of Appeals for Veterans Claims (Court) determined recently in the case of Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), once a VA examiner’s competency has been challenged by a claimant raising the issue, the presumption of competency as established by Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009), is rebutted, and VA then has the burden of persuasion as to the competency of the examiner.  Accordingly, remand is required to obtain the examiner’s credentials.

The matters are REMANDED for the following actions:

1. Obtain the medical qualifications of the examiner who conducted the records-based examination in June 2020 addressing Camp Lejeune water contaminants and claimed prostate cancer.  This information should include a curriculum vitae or similar documentation of qualifications of the examiner.  This information is to be associated with the Veteran's claims file.  Copies of the qualifications should be provided to the appellant and her representative, in fulfillment of their July 2020 FOIA request.  

2. Afford the appellant and her representative an appropriate time interval to respond following their receipt of copies of the examiner’s qualifications.

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3. Thereafter, readjudicate the appealed claim.  

 

 

L. CHU

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Schechter

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.