Citation Nr: 21003778 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-28 656 DATE: January 22, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine (“neck disability”) for the period prior to May 31, 2017, is remanded. Entitlement to an increased rating for degenerative joint disease L5-S1(“back disability”), rated as 10 percent disabling prior to October 22, 2014, and as 20 percent disabling from October 22, 2014, to May 31, 2017, is remanded. Entitlement to an increased rating for radiculopathy of the left upper extremity, rated initially as 30 percent disabling, and as 60 percent disabling from January 2, 2019, is remanded. Entitlement to a rating in excess of 40 percent for left lower extremity sciatic nerve radiculopathy is remanded. Entitlement to a rating in excess of 40 percent for right lower extremity sciatic nerve radiculopathy is remanded. Entitlement to a temporary total rating (TTR) under the provisions of 38C.F.R. §§4.29 and/or 4.30 for hospitalization at a VA facility from August 28, 2012, to October 19, 2012, is remanded. Entitlement to a TTR under the provisions of 38C.F.R. §§4.29 and/or 4.30 for hospitalization at a VA facility from December 28, 2012, to September 5, 2013, is remanded. REASONS FOR REMAND In July 2016, the Board remanded the issues of service connection for an acquired psychiatric disorder, increased rating for the back disability, and entitlement to two TTRs. In April 2017, the Board denied entitlement to these claims. The Veteran appealed the issues to the U.S. Court of Appeals for Veterans Claims (Court), and in November 2017, the Court granted a Joint Motion for Partial Remand (JMPR), remanding the portion of the April 2017 Board decision that denied entitlement to service connection for service connection for an acquired psychiatric disorder, increased rating for the back disability, and entitlement to two TTRs. In May 2018, the Board denied an initial rating in excess of 30 percent for the left upper extremity radiculopathy and remanded the issues of service connection for an acquired psychiatric disorder, an increased rating for the back disability, and entitlement to the two TTRs. In April 2019, the Regional Office (RO) increased the rating for the left upper extremity radiculopathy to 60 percent, effective January 2, 2019. The Veteran appealed the May 2018 Board denial of a rating in excess of 30 percent for the left upper extremity radiculopathy to the Court, and in June 2019, the Court vacated and remanded that portion of the Board decision. In October 2019 and most recently in April 2020, the Board remanded all the issues listed above. In a September 2020 rating decision, the RO granted service connection for major depressive disorder with alcohol use disorder, therefore that issue is no longer on appeal. The remaining issues have been returned to the Board. Unfortunately, another remand is required in this case. The October 2019 Board remand instructed the AOJ to provide the Veteran information regarding the credentials of the examiners who performed his VA compensation and pension (C&P) examinations, pursuant to several requests by the Veteran. Furthermore, in a June 2019 Order, the Court instructed the Board to provide the Veteran with information necessary to assess the competency of the VA examiner who conducted a May 2016 examination concerning the Veteran’s left upper extremity radiculopathy. In April 2020, the Board found that it was unclear whether the Agency of Original Jurisdiction (AOJ) had exhausted all reasonable efforts to obtain the requested VA examiners’ credentials. Therefore, the Board again remanded the Veteran’s claim for the AOJ to provide the Veteran information to assess the competency of the VA examiners who performed C&P examinations related to his claims. The Board instructed that if the AOJ determines that such records are unavailable, a formal finding of unavailability should be prepared, documenting the attempts made and responses received, and providing the Veteran with adequate notice. The record reflects that the AOJ requested information on the examiner’s credentials and solicited input from VA medical center privacy officers. A June 2020 email indicates that a medical center privacy officer intended to seek approval from the Office of General Counsel to release the requested information. A July 2020 email resulted in a out-of-office reply from that privacy officer. The file contains no additional evidence any further attempts were made to obtain the requested VA examiners’ credentials. In July 2020, a memorandum was issued stating that the BVA remand orders were “misdirected development.” The directed error states: “RO employees are not expected to routinely scrutinize or question the credentials of clinical personnel to determine the acceptability of their reports, unless there is contradictory evidence of record. However, examination reports must include a valid signature by the certifying professional.” The Board finds this resolution does not constitute substantial compliance with its remand directives. The Board has not requested that RO employees scrutinize or question the credentials of any examiner, only that the credentials be obtained and provided to the Veteran as he requested. In Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “once the veteran raises a challenge to the competency of the medical examiner, the presumption [of competency] has no further effect, and just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner’s qualifications.” 940 F.3d at 1308. “The Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion.” Id. (citing 38 U.S.C. § 7104 (d)). Further, the Federal Circuit explained that “[s]ince the veteran is obligated to raise the issue in the first instance, the veteran must have the ability to secure from the VA the information necessary to raise the competency challenge.” Id. Therefore the Court held that VA’s duty to assist mandated that “[o]nce the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae [(CV)] and other information about the qualifications of a medical examiner.” Id. (citing 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013) (collecting cases)). Based on the forgoing, the Board must again remand the Veteran’s claim for the AOJ to make all reasonable efforts to provide the Veteran information to assess the competency of the VA examiners who performed C&P examinations of his left upper extremity, lumbosacral spine, cervical spine, sleep apnea, and bilateral lower extremity radiculopathy. The matters are REMANDED for the following action: Provide the Veteran information to assess the competency of the VA examiners who performed compensation and pension (C&P) examinations of his left upper extremity, lumbosacral spine, cervical spine, sleep apnea, and bilateral lower extremity radiculopathy, to include resume, curriculum vitae (CV), list of publications, and/or list of specialties, as applicable. If the AOJ determines that such records are unavailable, a formal finding of unavailability should be prepared, documenting the attempts made and responses received, and providing the Veteran with adequate notice. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen 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.