Citation Nr: 22014959 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 14-41 593 DATE: March 15, 2022 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1971 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision. In August 2020, the Board denied the claim for service connection for a back disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 Order, the Court vacated the August 2020 decision denying entitlement to service connection for a back disability and remanded the matter for action consistent with the Joint Motion for Remand (JMR). The Board again remanded the claim in October 2021. The Agency of Original Jurisdiction (AOJ) obtained additional VA etiology opinions dated in November and December 2021. The examiner noted that the Veteran asserts his back injury is due to "driving Howitzers" in service, but his job listed on his DD Form 214 is "meat cutter." The Board notes that the Veteran's service personnel records have not been associated with his claims file and may provide clarification of the Veteran's duties in service. As such, a remand is necessary to obtain outstanding service personnel records. In a January 2022 Informal Hearing Presentation, the Veteran's representative specifically challenged the competency of the VA examiner. The representative stated that he was unable to determine from the record the qualifications of this examiner to provide an opinion in this case. As 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. 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. On remand, the requested information should be provided to the Veteran and his representative. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain the Veteran's complete service personnel records. If, and when, the service personnel records are obtained, the AOJ should consider whether a new VA opinion is necessary. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The AOJ should secure the credentials, including but not limited to the curriculum vitae, of the VA examiner who conducted the November 2021 VA examination. (The examiner's 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 representative should be notified, and this too should be documented in the claims file. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.