Citation Nr: 21061986
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 17-60 498
DATE: October 6, 2021

REMANDED

Entitlement to an evaluation in excess of 10 percent for low back strain is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from April 2002 to August 2003.  These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA).

On July 23, 2019, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a panel decision in Francway v. Wilkie, 2018-2136, 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.

Here, the allegations regarding competence raised in March 2021 correspondence specifically challenge the competency of the VA examiners, which meets the Francway criteria. However, the challenge is dependent on obtaining and reviewing the curricula vitae of the examiners.  Accordingly, on remand, appropriate actions must be undertaken in order to obtain the curriculum vitae of ER, Dr. WR and LP to enable the Veteran to flesh out any specific allegation.

The matters are REMANDED for the following action:

1. Appropriate action must be taken to respond to the requests from the representative for copies of the curriculum vitae for the VA examiner who conducted the September 2015 VA back examination, LP; the VA examiner who provided June 2016 VA back opinion, Dr. WPR; and the VA examiner who October 2017, Dr. MM; and the VA examiner who provided the July 2016 addendum back opinion, EHR. 

2. Upon completion of the above, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order.

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Margaret M. Lunger, 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.