Citation Nr: 21040002 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-10 735 DATE: July 2, 2021 REMANDED Service connection for thoracic myelopathy as a residual of a meningioma tumor, to include as due to herbicide (Agent Orange) exposure, is remanded. Service connection for peripheral neuropathy of the LEFT upper extremity, to include as due to herbicide (Agent Orange) exposure, is remanded. Service connection for peripheral neuropathy of the RIGHT upper extremity, to include as due to herbicide (Agent Orange) exposure, is remanded. Service connection for peripheral neuropathy of the LEFT lower extremity, to include as due to herbicide (Agent Orange) exposure, is remanded. Service connection for peripheral neuropathy of the RIGHT lower extremity, to include as due to herbicide (Agent Orange) exposure, is remanded. Service connection for hypertension, to include as due to herbicide (Agent Orange) exposure, and to include as secondary to service-connected type II diabetes mellitus, is remanded. INTRODUCTION The Veteran had active duty service in the U.S. Army from July 1967 to March 1970. He served on the Republic of Vietnam landmass during the Vietnam Era. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2018, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's claims file. In August 2019, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a September 2020 letter, subsequent to the August 2019 Board remand, the Veteran's attorney requested a new hearing for the Veteran. Specifically, she requested a Board virtual tele-hearing. In Quinn v. Wilkie, the Court has held that former 38 U.S.C. § 7107(b), governing Legacy appeals, entitles an appellant to an additional Board hearing opportunity when a legacy appeal returns to the Board following remand, even if the appellant appeared at a Board hearing prior to the remand. 31 Vet. App. 284, 290 (2019). In light of this holding, the Veteran was scheduled for a Board virtual tele-hearing for February 2021, despite having already presented testimony at an earlier August 2018 Board videoconference hearing. However, in a February 2021 letter from the Veteran's attorney, the Veteran explicitly withdrew his request for the new hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2020). The Board notes that previously the issue of entitlement to an effective date earlier than May 27, 2015 for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), was on appeal before the Board. The Board remanded this issue for further development in the August 2019 Board remand. After completion of this development, the Agency of Original Jurisdiction (AOJ) in a recent September 2020 rating decision granted the Veteran an earlier effective date of June 29, 2012 for his TDIU award. In a September 8, 2020 notification letter accompanying this rating decision, the AOJ advised the Veteran that if he did not agree with the effective date assigned for TDIU in the September 2020 rating decision, he could select a "review option" such as a Supplemental Claim, a Higher-Level Review, or an Appeal to the Board of Veterans' Appeals, within one year of the September 2020 rating decision. See 38 C.F.R. §§ 3.2500, 20.202-204 (2020). However, under VA's modernized review system, the Veteran has not submitted a Notice of Disagreement (NOD) or any other appeal document for the effective date issue for TDIU. In fact, when filing any claim, a claimant is presumed to be seeking the maximum benefit allowed by law. See Stowers v. Shinseki, 26 Vet. App. 550, 555 (2014); AB v. Brown, 6 Vet. App. 35, 38 (1993). Nonetheless, a veteran can expressly indicate or limit the evaluation he seeks. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In this vein, the Veteran and his attorney have repeatedly indicated that the grant of an earlier effective date for TDIU back to June 29, 2012 "would satisfy" his TDIU claim. See November 2017 Formal NOD for earlier effective date for TDIU (VA Form 21-0958); August 2018 attorney letter; and August 2018 videoconference hearing. In a recent February 2021 letter from the Veteran's attorney, the Veteran indicated that he has already received "a fully favorable" decision. In summary, with respect to the earlier effective date for TDIU issue, the benefits sought on appeal have been granted in full. No further adjudication of the TDIU issue is warranted. Finally, there is a question as to whether the Veteran is currently represented in the present matter. This case was recertified to the Board in an October 2020 Board docket letter. In February 2021, the Veteran's attorney submitted a motion to withdraw or cancel his representation in this Legacy appeal. Under VA regulation, when a request to withdraw representation is received after the appeal is certified to the Board, the representative is obligated to present a motion to the Board in writing demonstrating good cause to withdraw as the Veteran's representative. See 38 C.F.R. § 20.6(a)(2) (effective February 19, 2019) (formerly 38 C.F.R. § 20.608 (2018)). Good cause for such purposes is the extended illness or incapacitation of the representative; failure of the appellant to cooperate with proper preparation and presentation of the appeal; or other factors which make the continuation of representation impossible, impractical, or unethical. Id. However, here, the February 2021 motion to withdraw failed to comply with the provisions for a post-certification withdrawal of representation as set forth under 38 C.F.R. § 20.6(a)(2). Specifically, the Veteran's attorney has not presented any good cause for the attempted withdrawal of representation. The Veteran's attorney did advise that the Veteran had received a "fully favorable decision," but it is unclear whether this statement also pertains to the remaining service connection issues on appeal. That is, in addition to the issue of her continued representation of the Veteran, it is also unclear whether the Veteran's attorney is intending to explicitly withdraw the appeal in writing of the remaining service connection issues by way of the February 2021 letter. In this regard, VA regulation 38 C.F.R. § 19.55(b) (effective February 19, 2019) (formerly 38 C.F.R. § 20.204(b) (2018)), sets forth the requisites for a valid Legacy appeal withdrawal in writing, including the name of the veteran and / or appellant, the file number, a statement that the appeal is withdrawn, and specificity as to which issues are withdrawn when the appeal involves multiple issues (emphasis added). In fact, the Veteran's attorney submitted a January 2021 letter contesting the competency of the recent VA examiners for the service connection issues currently on appeal. Therefore, the Board concludes that Alexandra M. Jackson continues to represent the Veteran in the present matter. See again 38 C.F.R. § 20.6(a)(2) (effective February 19, 2019). REASONS FOR REMAND 1. Service connection for thoracic myelopathy as a residual of a meningioma tumor, to include as due to herbicide (Agent Orange) exposure, is REMANDED. 2. Service connection for peripheral neuropathy of the LEFT upper extremity, to include as due to herbicide (Agent Orange) exposure, is REMANDED. 3. Service connection for peripheral neuropathy of the RIGHT upper extremity, to include as due to herbicide (Agent Orange) exposure, is REMANDED. 4. Service connection for peripheral neuropathy of the LEFT lower extremity, to include as due to herbicide (Agent Orange) exposure, is REMANDED. 5. Service connection for peripheral neuropathy of the RIGHT lower extremity, to include as due to herbicide (Agent Orange) exposure, is REMANDED. 6. Service connection for hypertension, to include as due to herbicide (Agent Orange) exposure, and to include as secondary to service-connected type II diabetes mellitus, is REMANDED. In a January 2021 letter from the Veteran's attorney, the Veteran requested that VA provide him with the curriculum vitae of the recent VA examiners, showing the VA examiners' education, training, experience, and any discipline imposed by the VA or by any licensing board. In this regard, because VA ordinarily may presume that its VA examiners are competent, in the absence of some challenge to "a VA medical expert's competence or qualifications before the Board,...VA need not affirmatively establish [the] expert's competency." Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). However, "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." Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. Oct. 15, 2019). Once the veteran makes this challenge, "[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether... the medical examiner was competent to provide the opinion." Id. A veteran's burden in challenging a VA examiner's credentials must be offset by the "ability to secure from the VA the information necessary to raise the competency challenge." Id. Once information about a VA examiner's credentials has been requested, the claimant "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." Id. Therefore, the AOJ should secure the credentials, including but not limited to the curriculum vitae, of both the December 2019 VA examiner (Dr. D.J.T., DO, a VA primary care provider), and the August 2020 VA examiner ( Dr. B.B.R., MD., a VA internal medicine physician). Their credentials should be clearly documented for the record in the claims file. As noted above, the Federal Circuit has held that once a claimant has challenged the competency of a VA medical examiner, VA must satisfy its burden of persuasion by providing the VA examiner's professional qualifications, in order to rebut the claimant's challenge. Francway, 940 F.3d at 1307-09. These issues are therefore REMANDED for the following action: The AOJ should secure the credentials, including but not limited to the curriculum vitae, of both the December 2019 VA examiner (Dr. D.J.T., DO, a VA primary care provider), and the August 2020 VA examiner ( Dr. B.B.R., MD., a VA internal medicine physician). (Their information may be redacted as deemed warranted). Upon receipt, their credentials should be associated with the claims file, with a copy provided to the Veteran and his attorney. If the requested credentials are unattainable, then the Veteran and his attorney should be notified, and this too should be documented in the claims file. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.