Citation Nr: 21001224 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-35 371A DATE: January 7, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from November 1976 to December 1979. The matter comes before the Board of Veterans’ Appeals (Board) from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board video conference hearing in September 2017. A transcript of the hearing has been associated with the claims file. Previously, the claim was before the Board in March 2018 and November 2019. An August 2020 order of the United States Court of Appeals for Veterans Claims (Court) implemented an August 2020 Joint Motion for Remand (JMR), vacating and remanding the November 2019 Board decision that denied entitlement to service connection for a low back disability. As such this issue of entitlement to service connection for a low back disability is again before the Board. Entitlement to service connection for a back disability The Veteran contends that service connection is warranted for a low back disability. The Veteran contends that he has experienced ongoing low back and associated symptomology since service and that his current low back disability is related to service. In light of the points raised by the parties to the JMR and Board review of the claims file additional development is warranted. The August 2020 JMR raised the issue that the July 2019 VA examiner failed to specifically address the Veteran’s reports of his symptoms beginning in service and persisting after service as well as the August 2011 and September 2011 private opinions of record. As such the Board finds that a remand is warranted for a supplemental VA opinion. In addition, the parties to the August 2020 JMR raised the issue that the Veteran’s representative has requested qualifications of the July 2019 VA examiner in July 2019 correspondence and itemized information relevant to the qualifications, resume, publications, specialties and experience of the physician/examiner, to which the Board has not fully addressed. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner’s competence in the first instance). Neither the Veteran nor his representative has raised a specific challenge to the professional medical competence or qualifications of the VA examiners who provided the medical evidence obtained by the agency of original jurisdiction (AOJ) during the pendency of this appeal. The AOJ should request from the Veteran’s representative rationale for challenging the competency of any prior VA examinations. If the Veteran’s representative provides adequate rationale challenging the competency of a prior VA examination, then the AOJ should provide the necessary requested educational and professional background information in compliance with Francway. As such a remand is warranted for additional development. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s degenerative disc disease of the lumbar spine and whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s degenerative disc disease of the lumbar spine was caused by an in-service injury, event or disease? Service treatment records (STRs) in March 1977 note the Veteran was seen for low back pain after feeling something pop in his low back, with reduced range of motion and a back sprain was noted. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s degenerative disc disease of the lumbar spine (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? The examiner should address the Veteran’s contentions of ongoing symptoms that began during service and have persisted since service. (c.) The examiner should also specifically address the August 2011 and September 2011 private opinions of record. Attention is invited to the private opinion in August 2011 noting that the Veteran suffered from moderate to severe low back pain in March 1977 in-service and it would appear that his lumbar spine problems began when he was in-service. As well as the September 2011 private opinion noting that it appears his back problems date back to March 1977 and back pain, and his history and findings at that time were typical for disc disease. Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examining physician/specialist is asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran’s claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Attention is invited to the VA examination in July 2019 noting that it is less likely than not that the Veteran’s current back condition was incurred in or caused by the claimed in-service, injury event or illness. Further, attention is invited to the Veteran’s lay statements noting his reports of symptoms of ongoing low back pain that began in-service and has continued since and that his current symptoms are related to his service. 2. The AOJ should provide written correspondence to the Veteran and his representative requesting from the Veteran’s representative rationale for challenging the competency of any prior VA examinations. If the Veteran’s representative provides adequate rationale challenging the competency of a prior VA examination, then the AOJ should take appropriate action to respond to the requests and provide the necessary requested educational and professional background information in compliance with Francway. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.