Citation Nr: 21005390 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-33 568A DATE: February 1, 2021 REMANDED Entitlement to service connection for a disability manifested by gastrointestinal and epigastric symptoms (claimed as gastroesophageal reflux disease) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1987 to April 1994 and from October 1990 to October 2010, to include service in Southwest Asia Theater of operations during the Persian Gulf War. He also had more than three years of additional service of an unverified nature in the Naval Reserve. This matter comes to the Board of Veterans' Appeals (Board) from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Veteran’s appealed issue, among others, was remanded by the Board for further evidentiary and procedural development in November 2016. After substantial completion of the Board’s remand directives, the AOJ returned the Veteran’s appeal to the Board, who denied such in a July 2018 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in April 2019, the Veteran’s attorney and a representative of VA’s Office of General Counsel filed a Joint Motion for Remand. In an April 2019 Order, the Court vacated the Board’s July 2018 decision and remanded the matter for readjudication in light of the Joint Motion. The Veteran’s appeal was, again, remanded by the Board in October 2019 and October 2020 in an effort to fulfill the duty to assist the Veteran in the context of the parties’ agreements in the April 2019 Court-endorsed JMR. The Veteran’s appeal has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for a disability manifested by gastrointestinal and epigastric symptoms (claimed as gastroesophageal reflux disease) is remanded. In connection with the Veteran’s initial claim, the AOJ arranged for a VA examination conducted by a private provider through QTC Services. This examination was completed in August 2010, and as noted by the parties in the April 2019 Joint Motion, the Veteran questioned the competency of the private provider who conducted such on no fewer than four occasions from December 2012 to May 2017. In these statements, the Veteran asserted that the physician who conducted the August 2010 examination was “incompetent,” and that his “contract with QTC [Services] was terminated[,] as they had received so many complaints from Veterans who had seen him and received less than adequate examinations.” It’s unclear whether these statements are true, how the information was obtained, and whether the Veteran’s usage of “they” referred to QTC Services, the AOJ, the Veterans Health Administration (VHA), or another party. The parties specifically agreed in the April 2019 Joint Motion that a remand was necessary “for the Board to address [Veteran’s] contentions regarding the competency of the VA examination and VA’s fulfillment of its duty to assist.” The Board’s October 2019 and October 2020 remand directives were focused on providing the Veteran with an adequate VA examination and obtaining adequate VA opinions to cure the inadequacy of the August 2010 QTC examination. Unfortunately, while the Board’s October 2019 and October 2020 remand directives have been substantially completed by the AOJ, recent case law provides that another remand is unavoidable under the unique facts of the present case. Specifically, in Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, while VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, a Veteran may question an examiner’s competency and request the curriculum vitae and other information about the qualification(s) of a medical examiner. Obviously, this precedential holding is pertinent to the present matter and sheds a new light of the Veteran’s prior statements and assertions. In the present case, VA has completed development that corrects the inadequacy of the August 2010 VA examination and opinions obtained from the private physician who completed such. In sum, a Board decision in this matter would be unaffected by the findings of the August 2010 examiner. Nonetheless, the Veteran’s statements and assertions have not been addressed as per Francway, and nothing in the Federal Circuit’s holding in that matter stood for the premise that VA’s duty to respond to such arguments is obviated by a lack of reliance on the evidence stemming by the examiner in question. As such, the Board’s ability to readjudicate the Veteran’s appeal is frustrated until VA responds to the Veteran’s assertions in this regard. To this point, it is unclear whether privacy laws prevent the Veteran from obtaining information concerning whether the physician who conducted the August 2010 examination was terminated by any party and/or the reason(s) for such. Certainly, the verbiage in Francway does not elaborate on what “other information” may be obtained by an appellant in these situations or how this right may be limited. At a minimum, the AOJ must address this matter by providing the Veteran and his representative with the qualifications of the physician who performed the August 2010 examination. The matters are REMANDED for the following action: 1. The AOJ must undertake any necessary development to address the Veteran’s statements questioning the competency and qualifications of the private physician who completed the August 2010 examination through QTC Services. This development must include, but is not limited to, obtaining and associating with the Veteran’s VA file the qualifications (such as a curriculum vitae or similar demonstrable documentation which may be redacted as deemed warranted) of the physician who conducted the August 2010 examination. *If any information requested involving this physician’s employment cannot be secured by VA or disseminated to the Veteran and/or his representative, the reason(s) for this must be stated. All actions in furtherance of substantially completing this directive must be commemorated in the Veteran’s VA file. 2. Thereafter, the AOJ must provide any information obtained as a result of the above directive to the Veteran and his representative, who must be given an appropriate time to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.