Citation Nr: 21006910 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 08-24 211 DATE: February 5, 2021 REMANDED Entitlement to a rating higher than 20 percent for degenerative disc disease (DDD) of the lumbar spine prior to January 26, 2016, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 26, 2016, is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1986 to May 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. Entitlement to a rating higher than 20 percent for DDD of the lumbar spine prior to January 26, 2016, is remanded; entitlement to a TDIU prior to January 26, 2016, is remanded. As previously noted by the Board, in January 2020, the Court of Appeals for Veterans Claims (CAVC) granted a Joint Motion for Partial Remand (JMPR), which vacated the Board’s March 2019 decision to the extent it denied an increased rating for the Veteran’s low back disability prior to January 26, 2016, and the refusal to exercise jurisdiction over the issue of entitlement to a TDIU prior to January 26, 2016. In September 2020, the Board remanded the Veteran’s claims to obtain an addendum retrospective opinion addressing Correia v. McDonald and Sharp v. Shulkin. 28 Vet. App. 158 (2016); 29 Vet. App. 26 (2017). Such opinion was obtained in November 2020. Since that opinion was rendered, the Veteran’s attorney has challenged the competency of the November 2020 VA examiner. Specifically, he contends “[w]hile Dr. D may be a specialist in the field of Obstetrics and Gynecology, it is unclear what qualifications he has, if any, to render an opinion on the Veteran’s lumbar spine disability. On this basis alone, the Veteran challenges the adequacy of this opinion.” On July 23, 2019, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a panel decision in Francway v. Wilkie, affirming the decision of CAVC 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. 930 F.3d 1377 (Fed. Cir. 2019). 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. In its September 2020 remand, the Board directed the RO to forward the claims file to the September 2017 VA examiner, if available. However, a review of the file shows that the September 2017 VA examiner (General Practice, MD) was not available and an alternative examiner (General Practice, Obstetrics, MD) provided an opinion. Therefore, the challenge has been raised 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. Once a claimant requests information about an examiner’s qualifications, the duty to assist mandates that the claimant “has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner.” Therefore, remand is required to obtain such information. Because the issue of TDIU is inextricably intertwined with the issue of the Veteran’s increased rating for her low back disability, it must also be remanded. The matters are REMANDED for the following action: 1. Contact the VA examiner who provided the November 2020 VA medical opinion related to the Veteran’s low back disorder, and request that he provide a copy of his resume/CV. Upon receipt of such, associate it with the record and provide the Veteran and her representative a copy thereof. An appropriate time should be given for the Veteran to respond. If the requested resume/CV is not obtainable, the Veteran and her representative should be notified and the reasons for such should be documented in the record. 2. If, and only if, it is determined that the November 2020 examiner was not competent to provide the opinion, the RO should obtain another addendum opinion from an appropriate examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a full review of the record, the examiner should address the following: (A) Provide an opinion as to the range of motion, painful motion, additional loss of motion after repetitions, and functional loss due to pain as pertinent to the lumbar spine, for the appeal period from November 17, 2006, to January 26, 2016, in consideration of (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in non-weight-bearing, and (5) with the range of the opposite undamaged joint. (B) Provide an opinion as to whether pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability related to her lumbar spine disability with repeated use over time or during flare-ups for the appeal period from November 17, 2006, to January 26, 2016. The examiner should indicate whether, and to what extent, the Veteran’s range of motion was additionally limited with repeated use over time or during flare-ups, expressed, if possible, in terms of degrees, or explain why such details cannot be feasible possible. (C) The examiner should comment on the functional impairment resulting from the Veteran’s lumbar spine disability for the appeal period from November 17, 2006, to January 26, 2016. A rationale for any opinion offered should be provided. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). He/she must make clear that he/she has considered all procurable data, but any member of the medical community at large could not provide such an opinion without resorting to mere speculation.   2. Then readjudicate the claims. If the benefit is not granted, the Veteran must be furnished a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.