Citation Nr: 21077246
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 18-38 616A
DATE: December 29, 2021

REMANDED

Entitlement to an initial rating in excess of 10 percent for left hip, limitation of extension is remanded.

Entitlement to an initial rating in excess of 10 percent for right hip, limitation of extension is remanded.

Entitlement to an initial rating in excess of 10 percent for left hip, limitation of flexion is remanded.

Entitlement to an initial rating in excess of 10 percent for left hip, limitation of flexion is remanded.

Entitlement to a rating in excess of 10 percent for right knee residuals of medial meniscus tear is remanded.

Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is remanded.

Entitlement to service connection for sleep apnea is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from July 1988 to August 1997. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by the Agency of Original Jurisdiction (AOJ).

In April 2021, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.

This matter was previously remanded in October 2021.  However, as explained below, further action is warranted.  

Specifically, the record shows a May 2021 statement from the Veteran's attorney raising a "Francway Challenge" of the VA examiners who conducted the June 2017 VA hip and knee examinations.  See Statement in Support of Claim (VA Form 21-4138).  In a recent December 2021 statement, the Veteran's attorney again asserted that "the duty to assist challenges from May 2021 remain wholly unaddressed." Id. 

The Board notes that since the examiner's competency has been challenged, a remand is necessary to obtain information regarding the examiner's qualifications. See Francway v. Wilkie, 930 F.3d 1304, 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).  

On remand, the AOJ should provide the Veteran information regarding the June 2017 VA examiners qualifications.

The matters are REMANDED for the following action:

Obtain the curriculum vitae or equivalent information for the June 2017 VA examiners who provided the hip and knee examinations. See Statement from Veteran's attorney dated May 2021.  This information (which may be redacted as deemed warranted) is to be provided to the Veteran and his representative and associated with the Veteran's claims file. 

If the requested curriculum vitae is not obtainable, the Veteran and his representative should be notified, and the reasons for such should be documented in the record. 

 

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. A., 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.