Citation Nr: 21012816 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-23 304 DATE: March 5, 2021 REMANDED Entitlement to a compensable rating for a respiratory disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 1965 to March 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2017 Department of Veterans Affairs (VA) rating decision. In January 2021, a virtual hearing was held before the undersigned; a transcript is in the record. The appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran last underwent a pulmonary function study (PFT) to assess his respiratory impairment in August 2017. An August 2017 VA treatment record, which shows the results of the PFT, notes “images are associated with this procedure.” However, the “images” are not associated with the record and there is no indication why Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) was not performed. At the January 2021 hearing, he testified that his respiratory disability had worsened since the August 2017 PFT and May 2018 VA examination. Considering the duration of the intervening period since he was last examined and his report of worsening, a contemporaneous examination to assess the respiratory disability is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). At the January 2021 hearing, the Veteran testified that he sees a private provider every 6 months to a year for follow up on his Non-Hodgkin’s Lymphoma and his providers recognize that he breathes funny. After the hearing, VA received a portion of private treatment records through 2018 from Wake Forest University Medical Center. As any further, outstanding, record of such treatment may contain pertinent information, they must be sought. At the January 2021 hearing, the Veteran’s attorney also challenged the competency of the 2017 and June 2018 VA examiners, asserting the 2017 examiner did not accurately conduct the PFT and the 2018 examiner was dismissed due to questionable assessments made. In a February 2021 statement, the Veteran’s attorney specifically raised a “Francway challenge” of the competency of the VA medical examiner. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019)(holding that once a veteran raises the issue of competency of a VA examiner (here with some specificity), the burden shifts to the VA to establish the examiner’s competence). Therefore, on remand, the VA should present evidence of the qualifications of the VA examiners (identified by the attorney identified in the February 2021 statement). [The Board observes that the questioned of the competency of the named providers may be rendered moot by additional competent evidence obtained in the development below.] The matter is REMANDED for the following: 1. Provide to the Veteran’s attorney the requested qualifications of the VA examiners in July 2017 and June 2018 (H. and G., respectively), such as a curriculum vitae or similar demonstrable documentation. Specifically address the assertion that the 2018 examiner was “dismissed due to questionable assessment”, as that may have bearing on the adequacy of the examination. Associate the information in the Veteran’s claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). 2. Secure for the record complete (all outstanding) VA medical records pertaining to evaluations and treatment the Veteran has received for his respiratory disability. Specifically, obtain and associate with the record all relevant [identified as scanned in the current record but not appearing therein] pertinent imaging records, to include (but not limited to) those reported scanned in August 2017. Secure for the record complete clinical records (any private treatment records not already associated with the record) of evaluations or treatment the Veteran received for his respiratory disability. He must assist in this matter by identifying all private providers, and submitting authorizations for VA to secure complete clinical records of the evaluations and treatment from all providers identified 3. Then, arrange for the Veteran to be examined by an appropriate clinician to assess the current severity of his respiratory disability. The Veteran’s record (to include all additional information received pursuant to the development sought above) must be reviewed by the examiner in conjunction with the examination. All testing indicated should be completed, to include updated PFTs and DLCO (if not indicated or necessary, the examiner must explain why that is so). The nature and severity of all symptoms of his respiratory disability must be described in detail. The examiner should note the nature and frequency of the treatment the Veteran is receiving/has received and comment on the impact the respiratory disability has on social and occupational functioning. All opinions must include rationale that cites to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.