Citation Nr: 21011415
Decision Date: 03/01/21	Archive Date: 03/01/21

DOCKET NO. 20-08 959
DATE: March 1, 2021

REMANDED

Entitlement to service connection for erectile dysfunction is remanded.

Entitlement to service connection for sleep apnea is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1963 to March 1967.

1. Entitlement to service connection for erectile dysfunction is remanded.

2. Entitlement to service connection for sleep apnea is remanded.

In recent correspondence, the Veteran asked that VA produce the qualifications of the examiners that performed the December 2014 and February 2019 compensation and pension examinations for his erectile dysfunction and sleep apnea.

 

“Since the veteran is obligated to raise the issue in the first instance, the veteran must have the ability to secure from the VA the information necessary to raise the competency challenge. Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA’s duty to assist.” Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (citing 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013). Accordingly, remand to obtain the requested information is warranted.

Additionally, the etiology opinion provided in the February 2019 medical examination addressed only whether the Veteran’s sleep apnea was proximately due to or caused by his service-connected disabilities. No opinion was rendered regarding whether the Veteran’s sleep apnea was aggravated by his service-connected disabilities. Therefore, the opinion is inadequate, and remand is necessary to obtain an addendum. 

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not: 1) proximately due to or 2) aggravated by a service-connected disease or injury.

2. Obtain and add to the claims file information to demonstrate the qualifications of the compensation and pension examiners that evaluated the Veteran in December 2014 and February 2019, as well as the clinician providing the addendum opinion (such as a curriculum vitae and other credentialing documents, which may be redacted as deemed warranted).

3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Creegan

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.