Citation Nr: 21075154 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-42 308 DATE: December 17, 2021 REMANDED Service connection for prostate cancer due to exposure to contaminants in the water supply at Camp Lejeune is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1978 to March 1982, including service at Camp Lejeune. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021 the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge. This matter was previously remanded by the Board in an April 2021 decision for further development. Service connection for prostate cancer due to exposure to contaminants in the water supply at Camp Lejeune is remanded. The Veteran asserts that his prostate cancer is etiologically related to exposure to contaminated waters at Camp Lejeune. The Veteran was diagnosed with prostate cancer in May 2017. In a private Disability Benefits Questionnaire, the Veteran reported he was exposed to toxic chemicals while serving at Camp Lejeune and that may have caused his prostate cancer. See April 2018 DBQ. A private doctor submitted a nexus opinion regarding Veteran's prostate cancer in May 2018, stating the Veteran reported exposure to toxic products and chemicals including benzene, dichloroethylene, tetrafluoroethylene PCE and trichloroethylene TCE were likely or could be the cause of his prostate cancer. The doctor concluded that he did not have a background that allowed him to make a statement about whether these chemicals/toxins were or were not causative agents. See May 2018 Medical Treatment Record. In light of the examiner's opinion, which is too speculative to support a grant of service connection, see McLendon v. Nicholson, 20 Vet. App.at 85, and the examiner's report that he was not qualified to offer an opinion as to the etiology of the disability, further development was deemed necessary. See Wise v. Shinseki, 26Vet. App.517, 524 (2014). As the Veteran had not been provided a VA examination specific to the claimed disability, the matter was remanded to afford the Veteran was VA examination and to provide an etiological medical opinion regarding whether the Veteran's prostate cancer is related to his military service, to include exposure to contaminated water at Camp Lejeune. See April 2021 BVA Decision. The Veteran was provided a VA Medical Opinion in July 2021. Additionally, the Veteran was afforded a VA prostate cancer examination in August 2021 with an associated medical nexus opinion. Pursuant to the August 2021 VA examination and VA medical opinions from July and August 2021, the RO confirmed and continued the denial of service connection for prostate cancer. In response, the Veteran and his attorney submitted a brief in which they challenged the adequacy of the reviewer's and examiner's credentials from the July 2021 and August 2021 VA medical opinions. They argued that while July 22, 2021 VA correspondence listed basic information about the reviewer's medical background, neither the VA nor the VA examiners provided their credentials/qualifications as subject matter experts of Camp Lejeune Water Contamination (CLWC). See September 2021 Third Party Correspondence. 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. The brief submitted by the Veteran's attorney questions the competency of the July 2021 and August 2021 VA examiners which meets the Francway criteria. The challenge is beyond general assertions of inadequacy and is sufficient to shift the burden of persuasion over to VA to establish the examiner's qualifications by providing information about those qualifications to the Veteran. The information provided under the precepts in Francway is also fundamental to allowing the Board to make the required factual finding as to whether the medical examiner is competent. The representative also requested the credentials of the examiner, which must then be provided as part of the duty to assist. The claim is remanded to secure the qualifications of the examiner such that competency may be adjudicated. The matters are REMANDED for the following action: 1. Appropriate action must be taken to respond to the requests from the Veteran's representative for copies of the curriculum vitae and other credentialing documents for the VA examiners who rendered the July 2021 and August 2021 nexus opinions regarding the etiology of Veteran's prostate cancer. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case. If necessary, return the case to the Board for further appellate review. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.