Citation Nr: 21015853 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-62 127 DATE: March 18, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for major depressive disorder with anxiety, prior to January 30, 2020, is remanded. Entitlement to a rating in excess of 70 percent for major depressive disorder with anxiety, from January 30, 2020, is remanded. Entitlement to a rating in excess of 60 percent for pulmonary embolism is remanded. Entitlement to a rating in excess of 40 percent for deep vein thrombosis of the right lower extremity is remanded. Entitlement to a rating in excess of 10 percent for status post arthroscopic debridement chondromalacia patella right knee with residual degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1998 to May 2007. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from October 2016, August 2017, and April 2020 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a videoconference Board hearing before the undersigned. This case was before the Board in October 2019. The Veteran’s claims were remanded for additional development. The case is now again before the Board for further appellate action. With respect to representation, the Board recognizes that in October 2020, the Veteran’s attorney submitted a motion to withdraw as representative in this matter, noting that the Veteran has “now prevailed on his claims, leaving nothing further to be done by counsel.” It is notable that neither the Veteran nor the attorney in this matter has withdrawn the claims remaining on appeal but that the attorney has determined that the Veteran has prevailed on all claims. Once a Legacy appeal has been certified to the Board, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. 38 C.F.R. § 20.6. As the only reason given by the attorney in this matter is that the attorney has erroneously concluded that the Veteran has prevailed on all claims, the Board finds that good cause has not been shown, and the motion to withdraw as counsel is denied. 1. Entitlement to an initial rating in excess of 30 percent for major depressive disorder with anxiety, prior to January 30, 2020, is remanded. 2. Entitlement to a rating in excess of 70 percent for major depressive disorder with anxiety, from January 30, 2020, is remanded. 3. Entitlement to a rating in excess of 60 percent for pulmonary embolism is remanded. 4. Entitlement to a rating in excess of 40 percent for deep vein thrombosis of the right lower extremity is remanded. 5. Entitlement to a rating in excess of 10 percent for status post arthroscopic debridement chondromalacia patella right knee with residual degenerative joint disease is remanded. 6. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a VA examination for mental disorders in January 2020 and VA examination for respiratory conditions, vascular diseases, and knee conditions in February 2020. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence. If the Veteran wishes to challenge the competency of an examiner, the Veteran may request the curriculum vitae and other information about the qualification of a medical examiner. Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). In December 2020, the Veteran’s attorney expressed that she was unable to determine from the record the qualifications of the VA examiner who conducted the examination relied upon by the RO. Therefore, she requested a copy of the examiner’s personnel file or the examiner’s curriculum vitae that shows, at least, their education, training, experience and any discipline imposed by the VA or by any licensing board. As the RO relied on examinations conducted by two VA examiners for denials in the April 2020 Supplemental Statement of the Case, the Board interprets the Veteran’s attorney’s competency challenge as applying to both the VA examiner who performed the January 2020 mental disorders examination and the VA examiner who performed February 2020 examinations for respiratory conditions, vascular diseases, and knee conditions 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. Francway, 940 F.3d at 1308. The Board finds that, pursuant to Francway, this matter should be remanded yet again so that appropriate efforts can be made to provide the Veteran with the requested documents/information. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with evidence sufficient to support the expertise of the January 2020 and February 2020 VA examiners. 2. All attempts made to gather and provide the Veteran with the aforementioned information should be documented in the Veteran’s claim file. 3. After the above development has been accomplished, perform any additional development deemed warranted. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.