Citation Nr: 21022967 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-53 785 DATE: April 19, 2021 REMANDED Entitlement to a compensable rating for the service-connected right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to March 1968. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO confirmed and continued the previously assigned noncompensable rating for the service-connected right ear hearing loss. The Veteran’s notice of disagreement (NOD) was received in September 2016. The RO issued a statement of the case (SOC) in October 2016. The Veteran’s VA Form 9, substantive appeal to the Board, was received in October 2016. In August 2019, the Board denied the claim. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In a November 2020 Order, the Court vacated the Board’s August 2019 decision and remanded the matter pursuant to a November 2020 Joint Motion for Remand (JMR). Entitlement to a compensable rating for the service-connected right ear hearing loss. In his October 2016 Form 9, the Veteran contends his August 2016 audiological examination was inadequate. Specifically, the Veteran challenged the competency of the examiner as a “fill-in.” VA’s duty to assist includes providing a qualified medical examiner, and the probative value of the medical examination is based on the physician’s skill and knowledge in analyzing the data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301. After Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009), the Board has generally applied a “presumption of competency” for VA medical examiners, suggesting to some claimants and adjudicators that there is a burden on the claimant to produce evidence rebutting the “presumption” that a VA examiner is qualified to provide his or her opinions. It is clear from Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), that the Veteran’s challenge in this case satisfies his burden. In Francway, the Court held that a challenge to the presumption of competency “requires nothing more than is required for veteran claimants in other contexts simply a requirement that the veteran raise the issue.” Id. at 1308. “Here, once the veteran raises a challenge to the competency of the medical examiner, the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner’s qualifications. The 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. Subsequently, the original opinion in Francway was revised with the addition of footnote 1, in which the en banc Court clarified that “to the extent that the decision here is inconsistent with Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010), those cases are overruled. We note that in the future, the requirement that the veteran raise the issue of the competency of the medical examiner is best referred to simply as a ‘requirement’ and not a ‘presumption of competency.’” Id. at 1307 n. 1. Because the Veteran has satisfied this requirement, the burden has shifted to VA to establish the examiner’s qualifications. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist. In this case, it is not clear whether the August 2016 examiner holds such certification. The Board must therefore remand the case so that the RO can clarify whether the August 2016 examination was conducted by a state-licensed audiologist. Further, given that more than four years have passed since that examination, the Veteran’s hearing could have gotten worse since that time and a new examination should be scheduled. The matters are REMANDED for the following actions: 1. Determine whether the August 2016 audiological examiner is a state-licensed audiologist qualified to conduct a VA audiological examination, to include, if necessary, obtaining the resume/Curriculum Vitae (CV), and any other information in the possession of VA concerning the qualifications of the August 2016 audiological examiner. (Continued on the next page)   2. Schedule the Veteran for an audiological examination with a state-licensed audiologist to determine the severity of the Veteran’s current hearing loss. The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests and studies should be performed, and the results reported in detail. The examination report should clearly reflect the examiner’s qualifications for purposes of establishing examiner competency. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, 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.