Citation Nr: 21042668
Decision Date: 07/13/21	Archive Date: 07/13/21

DOCKET NO. 17-64 111
DATE: July 13, 2021

ORDER

Entitlement to service connection for liver condition is remanded.

Entitlement to service connection for a kidney condition is remanded. 

Entitlement to service connection for a lung condition is remanded.

REMANDED

The Veteran served on active duty from June 1968 to June 1970, with service in the Republic of Vietnam.  He received a Combat Infantryman Badge in addition to several other medals and awards. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript is of record.

1. Entitlement to service connection for liver condition is remanded. 

2. Entitlement to service connection for a kidney condition is remanded.

3. Entitlement to service connection for a lung condition is remanded.

In April 2020, the Board remanded the issues on appeal for further development, which has since been completed. 

In a June 2021 Brief, the Veteran, through his representative, argued that the July 2020 medical opinions and rationale are inadequate, and that the VA examiner, a nurse practitioner, was not competent to provide the opinion. The Board first notes that the question of "whether an examiner is competent and whether an adequate exam has been rendered are two separate inquiries."  See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). The Board finds the opinions were in fact adequate. However, the representative's 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 appeal is remanded to provide him with information about the qualifications of the examiner.

Finally, in June 2021, the Veteran submitted a VA Form 21-4142, Authorization for Release of Information, for Dr. Bowers. It is unclear if these records were identified for the purposes of consideration with the current issues on appeal, or with his new claim of service connection for hypertension. The RO should determine whether these records are relevant to the issues on appeal before the Board, and obtain them if relevant.

The matter is REMANDED for the following action:

1. Provide the Veteran information to assess the competency of the VA examiner who performed the July 2020 VA compensation and pension examination, to include curriculum vitae (CV) (which may be redacted as warranted) or other similar credentials/documents, as applicable. If 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.

2. Determine whether the medical records from Dr. Brown, identified in the June 2021 VA Form 21-4142, are relevant to the issues on appeal before the Board, and if so, make two requests for the authorized records, unless it is clear after the first request that a second request would be futile.

 

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Telamour, 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.