Citation Nr: 21001795 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-26 221A DATE: January 11, 2021 REMANDED The issue of service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran had active service from September 1987 to August 1992. These issues were previously before the Board. In August 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in October 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. After a review of the evidence, the Board finds that additional evidentiary development is necessary. In September 2020, an addendum medical opinion was obtained as directed by the Board in its August 2020 remand. The examiner opined that the Veteran’s left ankle disorder was less likely than not caused by service. She observed “chronic appearing calcification . . . suggesting old ligamentous/capsule injury” but did not discuss how such a finding did not support the Veteran’s contention of continuous pain since service. On the question of proximate causation, the September 2020 VA examiner simply stated that medical literature did not support the claim of the Veteran’s left ankle being caused by service-connected lumbar spine disability, right knee disability, left knee disability, or right ankle disability. There was no discussion of how the medical literature applied to the specific case of the Veteran. On the question of aggravation, she opined that it was less likely than not aggravated by the Veteran’s service-connected disability. Again, her rationale was conclusory, simply stating that medical literature did not support the Veteran’s claim without specifically applying the medical literature to the Veteran’s case. Conclusory medical opinion that is unaccompanied by rationale is inadequate for rating purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“most of the probative value of a medical opinion comes from its reasoning”); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a panel decision in Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), 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. In October 2019, February 2020, and in November 2020, the Veteran and his attorney challenged the competency of a VA examiner which meet the Francway criteria. The challenge is beyond general assertions of inadequacy and are enough 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. Finally, the Board notes that in October 2020, the Veteran’s attorney requested a virtual hearing before the Board. In January 2021, however, the attorney withdrew the hearing request. The matters are REMANDED for the following action: 1. Ensure the Veteran’s attorney receives the VA examiners’ credentials as discussed in Francway. 2. Schedule the Veteran for a VA examination for his left ankle disability. The examining physician/specialist is to be 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. The examiner should review the virtual file and address the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that a current left ankle disability manifested during or is otherwise related to the Veteran’s period of active service. The examiner should consider and address the Veteran’s testimony that he first experienced left ankle pain in service and has experienced it on a continuous basis since. The examiner is reminded that lack of contemporaneous medical evidence is not an adequate reason for discounting the Veteran’s statements of continuity of left ankle pain. (b) Whether it is at least as likely as not (50 percent or greater probability) that a current left ankle disability is proximately due to a service-connected disability. (c) Whether it is at least as likely as not (50 percent or greater probability) that a current left ankle disorder has been aggravated (i.e., worsened beyond the normal progression of that disease) by a service-connected disability. A rationale for all opinions is to be provided. The rationale may not be conclusory and must specifically address the Veteran’s contentions. All pertinent evidence, including both lay and medical, should be considered. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.