Citation Nr: 21011066 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 11-11 734 DATE: February 26, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II (diabetes), to include as secondary to service-connected disabilities, is remanded. REFFERRED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for diabetes is referred. REASONS FOR REMAND The Veteran served on active duty from June 1980 to April 1992. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in October 2020 for additional development. As previously addressed in the October 2020 Board remand, the issue of entitlement to benefits under 38 U.S.C. S 1151 has been raised by the record. Specifically, the Veteran has asserted that his diabetes is the result of carelessness, negligence, or error in judgment of VA physicians in the prescriptions of prednisolone. See May 2016 VA Form 9, May 2017 Correspondence, September 2020 Correspondence. However, this issue has not be adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action as reflected on the title page. See Anderson v. Principi, 18 Vet. App. 371, 377 (2004) (noting there is a legal distinction between filing a claim for service connection under 38 U.S.C. § 1110 and a claim for compensation under 38 U.S.C. § 1151 and that an may therefore have two separate claims for the same condition). 1. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities, is remanded. In February 2021, the Veteran’s representative submitted an informal hearing presentation (IHP) in which the representative questioned the competency of the medical examiner who provided the November 2020 VA opinion regarding the etiology of the Veteran’s diabetes. The representative requested the curriculum vitae and other information regarding the qualifications of the examiner. Although VA may apply a presumption of competency in reviewing the opinions of medical examiners, this presumption is rebutted when the Veteran raises the issue of competency. Francway v. Wilkie, 940 F.3d 1304, 1307 (Fed. Cir. 2019). Once the Veteran raises a challenge to the competency of the medical examiner, the presumption has no further effect and VA must satisfy its burden of persuasion as to the examiner’s qualifications. Id. VA must respond to the February 2021 challenge of the examiner’s competency or assisted in the production of documents relating to the examiner’s competency in order to satisfy its duty to assist the Veteran. Therefore, remand is required. The matters are REMANDED for the following action: Provide the Veteran and his representative with information necessary to assess the competency of the VA examiner who provided the November 2020 VA addendum opinion, such as a curriculum vitae or similar demonstrable documentation of that examiner. This information is also to be associated with the claims file. If the requested information is not obtainable, the Veteran and his representative should be notified and the reasons for such should be documented in the record. D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, Associate 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.