Citation Nr: 21007912 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 10-25 182 DATE: February 11, 2021 REMANDED Entitlement to service connection for a stomach and colon disability, to include as secondary to a service-connected lower jaw disability, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1956 to January 1957. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision, which denied service connection for a low jaw disability and a stomach and colon disability. In July 2013, a Board Central Office hearing was held before the undersigned; a transcript of the hearing is in the Veteran’s record. In February 2014, January 2015, and December 2015, the appeal was remanded for additional development. A December 2016 Board decision denied service connection for a lower jaw disability and a stomach and colon disability. The Veteran appealed the Board’s December 2016 decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a November 2017 Joint Motion for Remand (JMR) by the parties. A December 2017 CAVC Order remanded the matters for compliance with the JMR instructions. In June 2018, the case was remanded for additional development. A July 2019 rating decision granted service connection for loss of half or more of the mandible, loss of part of the ramus, and loss of teeth numbers 17-27, all status post left-sided mandibular resection secondary to giant cell tumor. Consequently, the matter of service connection for a lower jaw disability is no longer before the Board. In May 2020 correspondence, the Veteran’s agent requested a hearing in the appeal seeking service connection for a stomach and colon disability. In July 2020 correspondence, the agent asked that the hearing request be withdrawn. In December 2020 correspondence, the agent wrote, “The Veteran does not wish to have a BVA hearing.” Accordingly, the hearing request is deemed withdrawn. Entitlement to service connection for a stomach and colon disability, to include as secondary to lower jaw disability In light of the July 2019 rating decision which granted service connection for a lower jaw disability, the Veteran was afforded VA intestinal surgery and stomach/ duodenal conditions examinations in September 2019. The examiner, B.D., a physician assistant, opined it is less likely than not that the Veteran’s prior (1995) intestinal perforation could have been caused by a jaw condition (noting he underwent surgery for such in 1957). In a March 2020 addendum opinion, B.D. opined it less likely than not that the Veteran’s lower jaw disability would cause or aggravate a stomach disability or intestinal perforation. The examiner explained that he found the Veteran to be nutritionally sound on examination with no significant issues related to his colon condition. He explained that he could find no studies or medical information that show any relation between the lower jaw and intestinal perforation (with subsequent colostomy and colon resection), and reiterated that the Veteran is nutritionally sound. In a statement received in December 2020 (dated July 9, 2020), the Veteran’s agent raised a challenge to the presumed competency of the VA examiner under Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). He wrote: [The Veteran] is expressly challenging the competency of [B.D.’s] ability to render the opinion requested. As noted above, the examiner is a physician assistant. There is nothing in the record whatsoever demonstrating that he either possesses the expertise in the medical fields of either gastroenterology or oncology, which necessarily involve the conditions the Veteran believes should be service connected. Therefore, the Board should obtain and assess [B.D.’s] curriculum vitae and any other qualifications regarding his expertise in the medical fields of either gastroenterology or oncology. Although such documentation is not associated with the record (and thus his training, expertise, and occupational background is unknown), the agent contends that B.D. is “not competent” and his opinion “should hold no probative value.” Under Francway, once a claimant raises the issue of the competency of a VA medical examiner, the burden shifts to the VA to establish the examiner’s competence. Therefore, remand is necessary to obtain all appropriate documentation regarding the qualifications of the VA examiner to address the Veteran’s challenge. The matter is REMANDED for the following: 1. Obtain the qualifications, such as a curriculum vitae or similar demonstrable documentation (redacted if deemed warranted) of B.D., the physician assistant who provided the September 2019 and March 2020 advisory medical opinions in this matter. This information is also to be associated with the claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). [If the requested qualifications are not obtainable, the reasons for such should be noted in the record and the Veteran should be so advised.] 2. Provide the Veteran and his agent a copy of the qualifications of B.D, and adequate appropriate opportunity to respond. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.