Citation Nr: 21024353 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 19-22 899 DATE: April 22, 2021 REMANDED Propriety of the severance of service connection for degenerative disc disease (DDD) of the lumbosacral spine is remanded. Propriety of the severance of service connection for radiculopathy of the right lower extremity is remanded. Propriety of the severance of service connection for radiculopathy of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty for training from February 1981 to June 1981, and on active duty from July 1981 to July 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Propriety of the severance of service connection for DDD of the lumbosacral spine is remanded. The Veteran contends that the December 2018 severance of service connection for DDD of the lumbosacral spine was improper, and service connection should be restored. Unfortunately, after a review of the record, a remand is necessary in order to ensure the Veteran and his representative have all the information necessary to properly support his appeal. In this regard, in a June 2020 correspondence, the Veteran's representative has challenged to the adequacy of the VA examinations generally, without identifying a specific examination, and questioned the qualifications of the VA examiners who conducted them and provided corresponding opinions. The representative reiterated such contestation in the Board hearing, again without identifying the specific examination. Importantly, the record includes two VA examinations with opinions that are relevant to the current appeal, in July 2010 and August 2016. The former was the initial VA examination for a back disability, and included the positive etiological opinion on which the grant of service connection was based. The latter was a VA psychiatric examination, during which the examiner provided a negative etiological opinion regarding the relationship between the back disability and the Veteran’s active service. The record includes additional VA examinations for the back in November 2010, April 2012, and August 2016. However, such examinations merely identified the contemporaneous disability level without any etiological opinions, and are therefore not relevant to the question of etiology of the back disability, and likewise the propriety of severance of service connection for such. Thus, the Board will consider the representative’s request as pertinent to the July 2010 and August 2016 VA examiners who provided opinions. In this regard, 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. Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019) (affirming Francway v. Shulkin, No. 16-3738, 2018 U.S. App. Vet. Claims LEXIS 133 (Vet. App. Feb. 6, 2018). The Federal Circuit 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. Id. 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. Furthermore, the Federal Circuit has observed that the question of whether an examiner is competent and whether he or she has rendered an adequate examination are two separate inquiries. Francway, 940 F.3d at 1309. Here, in the aforementioned correspondence, the Veteran's representative stated: "While I object to the examination report generally, [VA] attorneys have recently been arguing that I must raise any specific objections to the qualifications of the examiner specifically at the hearing. I currently lack sufficient information to make a detailed objection in that regard." VA must respond to the Veteran's request for the October 2019 VA examiner's credentials. "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. This is mandated by the VA's duty to assist." Francway, 940 F.3d at 1308 (citing 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013)). Accordingly, on remand VA must respond to the representative's requests for the credentials of the July 2010 and August 2016 VA examiners who provided the negative etiological opinion regarding the back disability, to the extent possible and as allowed by law, including but not limited to obtaining a Curriculum Vitae (CV). See Francway, 940 F.3d at 1308. 2. Propriety of the severance of service connection for radiculopathy of the right lower extremity is remanded. 3. Propriety of the severance of service connection for radiculopathy of the left lower extremity is remanded. The outcome of the claims for restoration of service connection for bilateral lower extremity radiculopathy are contingent on the development ordered on remand. Specifically, service connection for radiculopathy was granted as part-in-parcel to the lumbar spine disability per the ratings criteria for the back. Likewise, service connection for radiculopathy was severed because service connection for the lumbar spine disability was severed. Therefore, the issue of the propriety of the severance of service connection for bilateral lower extremity radiculopathy is inextricably intertwined with the issue of the propriety of severance of service connection for DDD of the lumbosacral spine and should be deferred until the development requested is completed. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making); see also Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001). Further, pertinent to all the issues on appeal, the record includes VA treatment most recently from June 2019. Therefore, all outstanding VA treatment records to the present should be associated with the file. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. (Continued on the next page)   2. To the extent possible, provide the credentials of the July 2010 VA examiner, J.J., and the August 2016 VA examiner, J.S., as allowed by law, including but not limited to a CV, to the Veteran and his representative, and associate copies of the materials provided with the electronic claims file. Allow a reasonable amount of time for the Veteran or his representative to respond. Associate any response and related materials with the electronic claims file. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan M. Estes 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.