Citation Nr: 22012221 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-15 517 DATE: March 2, 2022 REMANDED 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1983 to December 1987. In June 2019, the Board denied the claims for service connection for a bilateral hearing loss disability and tinnitus. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2020 Memorandum Decision, the Court vacated the June 2019 Board decision and remanded the claims for further consideration consistent with the decision. The Court found the Board erred when it provided an inadequate reasons and bases by failing to define what qualifies as a "significant threshold shift" in hearing. The Court explained that the Board's failure to define what is a significant threshold shift made it unclear why the July 2017 private medical opinion was discounted for the examiner's failure to consider the in-service shifts in the Veteran's hearing thresholds. The Court also found that the Board also failed to clarify the April 2016 examiner's basis for attributing the in-service threshold shifts to testing variability as opposed to evidence of worsening hearing in service. In September 2021, the Board remanded the claims for an addendum opinion pursuant to the Court's December 2020 Memorandum Decision. The addendum opinion was provided in October 2021. In November 2021, following receipt of the November 2021 Supplemental Statement of the Case (SSOC), the Veteran's representative requested a copy of the October 2021 medical opinion and the examiner's ("expert") resume & curriculum vitae (CV). See November 2021 correspondence. 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. The United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a panel decision in Francway v. Wilkie, 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. Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019). 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. 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, the Veteran's representative specifically indicated that his request for a copy of the October 2021 addendum opinion and the examiner's resume and CV is "information needed to challenge the competency of the medical expert." See November 2021 correspondence. To the extent that the representative questions the adequacy of the October 2021 VA addendum opinion, the representative has not pointed out any specific problems with the examination or opinion regarding the issue on appeal. Without specific assertions of how the examination is inadequate, the Board is unable to assess whether there is any merit to the representative's assertion. The Board finds that the representative's November 2021 correspondence fails to raise the question of the October 2021 VA examiner's' competency with sufficient clarity. Hence, the presumption of competency regarding the October 2021 VA examiner has not yet been rebutted. See Francway, 940 F.3d at 1308. Nevertheless, VA must respond to the Veteran's request for the October 2021 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 November 2021 request for the credentials of the October 2021 VA examiner, to the extent possible and as allowed by law. See Francway, 940 F.3d at 1308. The claim for service connection for tinnitus is inextricably intertwined with the hearing loss claim because the evidence suggests the Veteran's hearing loss and tinnitus are possibly related. The matters are REMANDED for the following action: 1. To the extent possible, provide the credentials (i.e., resume and CV) of the October 2021 VA examiner, as allowed by law, 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. 2. After all available evidence has been associated with the record, review the evidence, and determine if further development is warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cheng, 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.