Citation Nr: 21072940 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-42 830 DATE: December 6, 2021 REMANDED Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right total knee replacement (previously evaluated as degenerative joint disease and post-operative torn medial meniscus and posterior collateral ligament, right knee), is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Air Force from February 1973 to July 1976. The Veteran had subsequent service in the Louisiana Air National Guard from July 1976 to October 1981, and was on Active Duty for Training (ACDUTRA) on April 1, 1978. See December 2009 National Personnel Records Center Response. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by Department of Veterans Affairs (VA) regional office in May 2012. In a September 2021 Written Brief Presentation, the Veteran's representative stated that "there is nothing in [the March 2021 VA examiner's] online resumes to suggest that she is qualified to assess a longstanding and degenerative orthopedic disease such as the veteran has" and requested that VA provide the curriculum vitae and other information about qualifications of the examiner that demonstrates that he/she was competent to provide an opinion on the specific issue of left knee disability. 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 v. Wilkie, 930 F.3d 1377, 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 March 2021 VA examiner would not be qualified to provide a medical opinion regarding the etiology of the Veteran's left knee disability. The record also reflects that the Veteran continues to obtain treatment at one or more VA medical centers; on remand, any updated or otherwise outstanding VA treatment records should be sought, and if possible, obtained and associated with the claims file. See 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Contact the March 2021 VA knee conditions examiner and ask the examiner to submit a copy of their most recent curriculum vitae, or make sufficient efforts to obtain the recent curriculum vitae of the examiner by other means. The examiner should be specifically asked to provide evidence to establish that they were qualified to render an opinion as to the etiology of the Veteran's left knee disability. 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. 2. Obtain any of the Veteran's updated or otherwise outstanding VA treatment records, including but not limited to those from the New Orleans VA medical center from March 2017 to present. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banks, 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.