Citation Nr: 21021278 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-53 658 DATE: April 12, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected lumbosacral sprain with intervertebral disc syndrome (IVDS), service-connected radiculopathy, service-connected gastroesophageal reflux disease (GERD), and service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1998 to February 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in October 2019. The Board most recently remanded this appeal in November 2020. While the Board sincerely regrets the additional delay, unfortunately, due to the reasons that follow, yet another remand is necessary. 1. Entitlement to service connection for OSA including as secondary to service-connected disabilities is remanded. The record shows that in a July 13, 2020 statement, the Veteran argued that the VA examiners who provided opinions in December 2019 and June 2020 were a Nurse Practitioner (specializing in psychiatric disorders) and physician specializing in Obstetrics and Gynecology, and were not qualified to offer their opinions on sleep apnea. Because the Veteran had challenged the previous examiners’ qualifications, the Board remanded the case, in part, to obtain documentation showing any and all known qualifications for the VA examiners. The record shows a November 2020 “Misdirected Development” memo, which notes that Regional Office employees are not expected to routinely scrutinize or question credentials of clinical personnel unless there was contradictory evidence of record. Thus, it was noted that the examiner’s credentials would not be requested. The Board finds this resolution does not constitute substantial compliance with its remand directives. The Board has not requested that Regional Office employees scrutinize or question the credentials of any examiner, only that the credentials be obtained and provided to the Veteran. The United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a panel decision in Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), affirming the decision of the United States Court of Appeals for Veterans Claims (Court) which found that when a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. The Court held that the challenge must be more than a general assertion that an examination or opinion is inadequate and must be raised by the Veteran in the first instance. A challenge raised under the above circumstances rebuts the presumption of competency and VA must satisfy its burden of persuasion as to the examiner's qualifications by providing the Veteran with information about the qualifications of the examiner. In July 2020, the Veteran challenged the competency of two of the VA examiners who have provided medical opinions in this case and which meets the Francway criteria. The challenge is beyond general assertions of inadequacy and are enough to shift the burden of persuasion to VA to establish the examiner's qualifications by providing information about those qualifications to the Veteran. The information provided under the precepts in Francway is also fundamental to allowing the Board to make the required factual finding as to whether the medical examiner is competent. Accordingly, on remand, to the extent possible, the CV or other credentialing documents for the December 2019 and June 2020 VA examiners of record, and/or any additional information regarding their qualifications should be obtained, associated with the record, and provided to the Veteran and his representative for review. See Stegall v. West, 11 Vet. App. (1998). The matters are REMANDED for the following action: 1. Please document for the record all efforts to provide: (a.) Provide the Veteran information to assess the competency of the VA examiners who performed December 2019 and June 2020 VA compensation and pension (C&P) examinations, to include curriculum vitae (CV) (which may be redacted as warranted) or other similar credentials/documents, as applicable. (Continued on the next page)   If the AOJ determines that such records are unavailable, a formal finding of unavailability should be prepared, documenting the attempts made and responses received, and providing the Veteran with adequate notice.. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.