Citation Nr: 21014019 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 12-05 283 DATE: March 11, 2021 REMANDED The claim for an increased rating for posttraumatic sensory neuropathy, left upper extremity, evaluated as 10 percent disabling prior to December 17, 2014, and as 20 percent disabling thereafter, is remanded. The claim for a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND In March 2011, the RO granted service connection for posttraumatic sensory neuropathy, left upper extremity, evaluated as 10 percent disabling, with an effective date of April 19, 2010. The Veteran appealed the issue of entitlement to an initial evaluation in excess of 10 percent. In June 2015, the RO granted the claim, to the extent that it assigned a 20 percent evaluation with an effective date of December 17, 2014. Since this increase did not constitute a full grant of the benefit sought, the increased initial evaluation issue remained in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In March 2018, the Board denied the claim. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In April 2019, while his case was pending at the Court, the VA’s Office of General Counsel and the Veteran’s representative filed a Joint Motion requesting that the Court vacate the Board’s March 2018 decision as to the increased rating claim. In May 2019, the Court issued an Order vacating the March 2018 Board decision and remanding the case for compliance with a Joint Motion for Remand (JMR). The April 2019 JMR states, in part, that the Veteran had requested a hearing, but that he had not been affording a hearing. In February 2020, the Veteran was afforded a videoconference hearing. Unfortunately, in December 2020, the Veteran was notified that a complete transcript of the hearing could not be produced due to audio malfunctions heard throughout the testimony on VA’s Digital Recording System, and VA offered to schedule a second hearing. The Veteran declined a second hearing. Accordingly, the Board will proceed. See 38 C.F.R. § 20.717. In January 2020, VA received a letter from the Veteran’s representative. She wrote that the RO had relied upon “a Compensation and Pension examination” and that she was thus unable to determine the qualifications of the examiner to provide an opinion in this case. The representative requested that VA provide her with the examiner’s personnel file with the Department of Veterans Affairs or alternatively, at a minimum the examiner’s CV showing at least the examiner’s education, training, experience, and any discipline imposed by the VA or any licensing board. The Board notes that the questions of “whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries.” See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019) (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional’s qualifications in every case as a precondition for the Board’s reliance upon that person’s opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). However, this presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the Veteran challenges the competency of a medical examiner, “[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion.” Id. at 1381. The Board notes that in this case, the appeal has already spanned a number of years and multiple examinations. The representative’s request reads as a generic request, potentially applicable to any case. That is, the request was not tailored to the facts and circumstances of this Veteran’s case. The representative says that the RO relied on “a” Compensation examination, singular, yet there are several examinations that were provided in conjunction with this appeal. There is no specificity as to which examiner or examiners the representative would like to receive a CV for. As such, on remand the representative should be contacted, and asked to identify which CV or CVs she is requesting. If she identifies any, her challenge should be considered to meet the Francway criteria, as it is more than just general assertions of inadequacy. Accordingly, a remand is warranted to secure obtain more information about the representative’s challenge, and if specific examiners are identified to provide her the qualifications. The claim for TDIU is intertwined with this issue and is remanded as well. The matters are REMANDED for the following action: 1. Send the Veteran, and his representative, a letter asking them to identify the examiner or examiners in this case for whom they would like a copy of the curriculum vitae. 2. If the Veteran or his representative identifies an examiner or examiners, obtain copies of the curriculum vitae and other credentialing documents for the medical professionals identified who conducted the Veteran’s examinations pertaining to his posttraumatic sensory neuropathy, left upper extremity. Upon receipt of the documents associate them with the Veteran’s file, and provide a copy to the Veteran and his representative. If the requested documents are unattainable, then the Veteran and his representative should be notified, and it should be documented in the Veteran’s record. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.