Citation Nr: 21064104 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-22 164 DATE: October 19, 2021 REMANDED Entitlement to service connection for a groin condition is remanded. Entitlement to service connection for right foot hallux valgus is remanded. Entitlement to service connection for right foot pes planus is remanded. Entitlement to service connection for right knee osteoarthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1986 to April 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Per the Veteran's April 2017 VA Form 9, he requested a Travel Board hearing before the Board. In a January 2019 letter, the Veteran was informed that his requested hearing was scheduled for February 13, 2019. However, the Veteran failed to show for his hearing on the matter. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). These matters were previously remanded by the Board in September 2019. 1. Entitlement to service connection for a groin condition is remanded. Pursuant to the Board's September 2019 remand, an addendum medical opinion was obtained in December 2019. At that time, the examiner was directed to provide an opinion as to whether the Veteran's groin condition is related to his service. In providing the opinion, the examiner was instructed to consider the Veteran's credible statements regarding the in-service complaints of testicular pain and swelling and continuity of groin pain thereafter. The examiner provided a negative nexus opinion reasoning that in service treatment records dated August 16, 1989, the Veteran complained of testicle pain and swelling initially happened in high school; the examiner concluded that the Veteran's condition was pre-existing, and as a result, the majority of the evidence did not establish a nexus between the current condition and the in-service condition. In addition, the examiner stated that the Veteran was treated for epididymitis which resolved, and therefore, was not an ongoing chronic condition. The examiner further reported that the June 2015 ultrasound revealed unremarkable appearance of the testicles without significant scrotal fluid collections noted, suggesting complete resolution. The examiner stated that the majority of the evidence indicates the condition claimed is less likely than not due to, caused by, or related to service. The Board finds the opinion is insufficient as the examiner failed to consider the Veteran's credible complaints of continuity of groin pain since service. Accordingly, the Board finds the Veteran should be scheduled for another VA examination upon remand. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for right foot hallux valgus is remanded. 3. Entitlement to service connection for right foot pes planus is remanded. 4. Entitlement to service connection for right knee osteoarthritis is remanded. In the September 2021 Informal Hearing Presentation (IHP), the Veteran's representative argued that the December 2019 VA examiner may not have the experience or expertise to evaluate the Veteran's groin condition, right foot conditions and right knee disability, and requested a copy of the December 2019 VA examiner's curriculum vitae. The Board notes that the questions of "whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries." See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019) (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional's qualifications in every case as a precondition for the Board's reliance upon that person's opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). This presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380 (Fed. Cir. 2019). After the Veteran challenges the competency of a medical examiner, the Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether the medical examiner was competent to provide the opinion. Id. at 1381. However, if the Veteran wishes to challenge the competency of an examiner, the Veteran may request the curriculum vitae and other information about the qualification of a medical examiner. Id. (stating "The veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner."). The Board finds that the Veteran's representative's challenge meets the Francway criteria, as it is more than just general assertions of inadequacy. Hence, the challenge is sufficient to shift the burden of persuasion to the VA to establish the examiner's qualifications by providing information about those qualifications to the Veteran and his representative. The Board finds that, at most, Francway requires that VA obtain the VA examiner's curriculum vitae and provide it to the Veteran and his representative to provide them the opportunity to make a more informed argument as to why the December 2019 VA examiner would not be qualified to evaluate the Veteran's groin condition, right foot condition and right knee disability. Updated treatment records should also be obtained upon remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. Contact the VA examiner who provided the December 2019 VA addendum medical opinion as to the Veteran's groin condition, right foot hallux valgus and pes planus, and right knee osteoarthritis, Dr. A. D., and direct the examiner to submit a copy of his/her most recent curriculum vitae or obtain a recent curriculum vitae by other means. The examiner is specifically asked to provide evidence to establish he/she was qualified to render an assessment as to the Veteran's groin condition, right foot hallux valgus and pes planus, and right knee osteoarthritis. In this respect, the Board notes that, in accordance with 38 C.F.R. § 3.159(a)(1), an examiner may be considered qualified to conduct an examination or provide a medical opinion as a result of "education, training, or experience." Thereafter, the curriculum vitae should be associated with the record. 3. After records development is completed, the Veteran should be afforded a VA male reproductive system conditions examination to determine the nature of his groin condition and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Does the record reflect that the Veteran undebatably had a groin condition that existed prior to his entry into active duty service? Please explain why or why not. (b.) If it is undebatable that the Veteran's groin condition pre-existed his active duty service, did the condition undergo a permanent worsening during his period of active duty? Please explain why or why not, to include addressing the significance, if any, of the October 1987 and August 1989 in-service treatment for testicular pain and swelling with a diagnosis of epididymitis in August 1989. (c.) If the examiner concludes the pre-existing groin condition was worsened, the examiner should explain whether the worsening was undebatably the result of natural progression rather than the result of activities and/or incidents of active service. Please explain why or why not, to include addressing the significance, if any, of the October 1987 and August 1989 in-service treatment for testicular pain and swelling with a diagnosis of epididymitis in August 1989. (d.) For any pre-existing groin condition that was permanently worsened beyond normal progression (aggravated) during service, please opine whether any current groin condition is at least as likely as not (50 percent or greater probability) related to that in-service aggravation. Please explain why or why not, to include addressing the significance, if any, of the October 1987 and August 1989 in-service treatment for testicular pain and swelling with a diagnosis of epididymitis in August 1989. The examiner must also consider the Veteran's credible complaints of continuity of groin pain since service. (e.) For any groin condition that did not pre-exist service, state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's groin condition is etiologically related to service. Please explain why or why not, to include addressing the significance, if any, of the October 1987 and August 1989 in-service treatment for testicular pain and swelling with a diagnosis of epididymitis in August 1989. The examiner must also consider the Veteran's credible complaints of continuity of groin pain since service. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina 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.