Citation Nr: 21072145
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 07-34 964
DATE: December 2, 2021

REMANDED

Entitlement to an initial rating in excess of 10 percent for gastroenteritis with fundic gland polyp is remanded. 

REASONS FOR REMAND

The Veteran served in the U.S. Army, on active duty from October 1980 to May 1987, with additional service in the Reserve. 

This issue was previously before the Board of Veterans' Appeals (Board) in July 2020, when it denied a rating in excess of 10 percent for the Veteran's gastroenteritis. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court), and pursuant to a joint motion for remand (JMR), the Court remanded the issue for readjudication in an April 2021 Order. 

Entitlement to an initial rating in excess of 10 percent for gastroenteritis with fundic gland polyp is remanded.

The Veteran was provided with a VA examination in January 2020 to determine the severity of her service-connected gastroenteritis. In a May 2020 correspondence, her attorney requested the curriculum vitae (CV) of the January 2020 VA examiner. As noted in the April 2021 JMR, the parties agree that the Board erred when it did not address the Veteran's May 2020 request. While not explicitly stated, the Board interprets this broadly as a challenge to the competency of the January 2020 VA examiner. 

VA is presumed to have properly chosen examiners who are qualified to provide competent medical evidence. However, if the Veteran wants to challenge the competency of an examiner, the Veteran may request the curriculum vitae and other information about the qualification of a medical examiner. Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir., 2019). Therefore, the claim must be remanded for efforts to be made to obtain and provide the requested information to the Veteran.

The matters are REMANDED for the following action:

1. The RO should obtain the qualifications, such as a CV or similar demonstrable documentation of the January 2020 VA examiner. This information is also to be associated with the claims file. 

2. Provide the Veteran and her attorney a copy of the qualifications of the VA examiner, and adequate appropriate opportunity to respond. 

3. After the above development has been completed, readjudicate the issue on appeal. 

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald