Citation Nr: 21069666
Decision Date: 11/19/21	Archive Date: 11/19/21

DOCKET NO. 20-19 635
DATE: November 19, 2021

REMANDED

Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1967 to June 1969 in the United States Army.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In June 2020, the Board denied the Veteran's increased rating claim and the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2021 Order, pursuant to a June 2021 Joint Motion for Partial Remand (JMPR), the Court vacated the Board's June 2020 decision as it relates to the initial increased rating claim. 

 

Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD)

Although the Board regrets additional delay, the issue must be remanded to the agency of original jurisdiction (AOJ) prior to readjudication by the Board.

In a July 2021 statement, the Veteran, through his representative, requested that the case be remanded to the AOJ and questioned the qualifications of the examiners who have performed mental health compensation and pension (C&P) examinations on the Veteran. While VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, the Veteran may challenge the competency of an examiner.

In this regard, neither the Veteran nor his representative has alleged any specific reason why the C&P examiners were not competent to conduct the examinations. Nevertheless, as the examiners' competency has been challenged, a remand is necessary to obtain information regarding the examiners' qualifications. See Francway v. Wilkie, 930 F.3d 1377 (2019) (holding that once a challenge to an examiner's competency is raised, the presumption of competency is rebutted, and VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran). 

Upon remand, the AOJ should provide the Veteran and his representative information regarding the October 2017, August 2019, and May 2021 VA examiners' medical qualifications.

The matter is REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding VA and private mental health treatment records.

 

2. Provide the Veteran information regarding the qualifications of the October 2017, August 2019, and May 2021 VA examiners, to include a curriculum vitae or other similar material and include copies of the information provided to the Veteran and his representative in the claims file.

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. B. Smith, Associate 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.