Citation Nr: 21000408
Decision Date: 01/05/21	Archive Date: 01/05/21

DOCKET NO. 08-37 761
DATE: January 5, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for limitation of left knee flexion is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1990 to April 1994.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

This matter has been before the Board and the Court of Appeals for Veterans Claims (Court) several times, most recently in July 2020 when the Board remanded it for compliance with a February 2020 Order by the Court, granting a January 2020 Joint Motion for Remand (JMR).

Entitlement to a rating in excess of 10 percent for limitation of left knee flexion

In January 2019, the Veteran’s representative challenged the competence of the physician’s assistant who conducted the December 2017 VA knee examination and provided the December 2017 opinion and August 2020 and September 2020 addendum opinions regarding the current severity of the Veteran’s left knee disability.

The Board recognizes that previously in February 2019, it found no basis upon which to find the physician’s assistant lacked the correct authority to complete the examination.  However, per Francway, which was issued after the Board’s February 2019 decision, a veteran must simply raise the issue of competency of the examiner. Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). Once the issue has been raised, a veteran has the right, absent unusual circumstances, to the CV and other information about qualifications of a medical examiner. Id. Further, VA’s duty to assist requires that VA make two requests to a custodian of a private or non-Federal agency record for an effort to obtain relevant records to be treated as reasonable. 38 U.S.C. § 5103A.

While the Board regrets further delay, a remand is necessary to attempt to obtain information regarding the examiner’s medical qualifications in order to fully adjudicate the Veteran’s claim.

The matter is REMANDED for the following action:

1. Undertake all reasonable efforts to obtain the CV and other information about the qualifications of the physician assistant who provided the December 2017 VA knee examination and opinion, as well as the August 2020 and September 2020 addendum opinions. Upon receipt of these records, associate them with the record and provide the Veteran and the representative with a copy thereof, and afford them an opportunity to respond. 

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If the requested records cannot be obtained, the Veteran and his representative should be notified and the reasons for such should be documented in the record.

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. Battaile

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.