Citation Nr: 21076600
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 14-21 961
DATE: December 27, 2021

REMANDED

Entitlement to service connection for obsessive compulsive disorder (OCD) is remanded.

REASONS FOR REMAND

The appellant is a Veteran who served on active duty from June 1970 to November 1978.  This case is before the Board of Veterans' Appeals (Board) on appeal of a September 2012 Department of Veterans Affairs (VA) rating decision.  In September 2016, a videoconference hearing was held before the undersigned.  In January 2018, the Board remanded the case to the agency of original jurisdiction, or AOJ for further development.  A January 2019 Board decision denied service connection for OCD.  An August 2019 Board decision vacated the January 2019 Board decision (on due process grounds) and remanded the case to the AOJ for additional development.  In July 2020, the case was again remanded for additional development.   

Entitlement to service connection for OCD

As noted in the July 2020 Board remand, the Veteran raised a "Francway challenge," in reference to the court case holding that once a veteran raises the issue of the competency of a VA medical examiner, the burden shifts to the VA to establish the examiner's competence.  See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019).  It is noted that such challenge was made through statements by the Veteran's then-attorney representative in April 2020 and May 2020.  Since then, in February 2021, another attorney with the same law firm was appointed as the Veteran's current representative.  

Although there are notes in the file showing that the AOJ requested the necessary information from two different VA medical centers in September 2020, to date the VA has neither obtained the information for association with the claims file nor furnished the evidence of the qualifications of the identified VA examiners to the Veteran.  (In that regard, in a December 2020 statement the Veteran's prior attorney indicated that the requested Francway information had still not been received.)  As there has not been substantial compliance with the Board's previous remand directives, another remand is unfortunately required.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

The matter is REMANDED for the following action:

Furnish the Veteran and his attorney the qualifications of the VA examiners in December 2002, November 2012, and May 2018 (Dr. William B., Dr. Kenneth D., and Dr. Michael G., respectively), as allowed by law, such as a curriculum vitae or similar demonstrable documentation; afford them reasonable time to respond, and associate the information and any responses with the Veteran's claims file.  Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019).  

 

George R. Senyk

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Debbie Breitbeil, 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.