Citation Nr: 22015261 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 15-02 597 DATE: March 16, 2022 REMANDED Entitlement to service connection for a right arm disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA). In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. This case was remanded in May 2018, December 2019 and September 2020 for further development. Entitlement to service connection for a right arm disability is remanded. As an initial matter, the Veteran's attorney representative has raised the issue seeking to challenge the competency and qualifications of the VA examiners. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, No. 2018-2136 (Fed. Cir. 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). The Board finds the February 2022 correspondence challenges the competency of the VA examiners, which meets the Francway criteria. The Veteran's representative challenged the findings in multiple VA examinations reports, specifically the January 2020 VA examination stating that "a review of the online resumes and professional profiles of this provider reveals no specialization or experience that would qualify her to make assessments on the complex, long-standing, degenerative orthopedic disability." The November 2021 medical opinion was also challenged by Veteran's representative stating that "[t]his provider was... an OB-GYN physician. This provider also would not have the requisite education, knowledge, skills and experience to adequately assess a longstanding complex orthopedic disability." As such, the Board finds the challenge to be beyond the general assertions of inadequacy and sufficient to shift the burden of persuasion over to VA to establish the examiners' qualifications by providing information about those qualifications to the Veteran. As the Veteran's representative has provided adequate rationale challenging the competency of a prior VA examinations the AOJ should provide the necessary requested educational and professional background information in compliance with Francway. As such a remand is warranted for additional development. Upon review of the record the Board finds that there has not been substantial compliance with the Board's previous remand directives regarding this issue and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board previously remanded this matter to obtain an opinion regarding whether the Veteran's diagnosed right arm disabilities were related to service. Specifically, the examiner was requested to consider the Veteran's reports having have symptoms since service. In November 2021, a VA examiner opined that the Veteran's diagnosed disabilities of the right arm, including the carpal tunnel syndrome, right cubital tunnel syndrome and impingement of the right shoulder, were not related to service. However, the examiner failed to consider the Veteran's complaints of having symptoms since service in accordance with the Board's remand. In order to properly adjudicate this appeal, a fully articulated and soundly reasoned medical opinion that accounts for the Veteran's competent lay testimony is needed. As such, another VA examination must be afforded to the Veteran. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The matters are REMANDED for the following action: 1. The AOJ should take appropriate action to respond to the Veteran's and his representative's requests and provide the necessary requested educational and professional background information in compliance with Francway. Including copies of the curriculum vitae and other credentialing documents for the January 2020 VA examination and November 2021 addendum opinion. 2. The AOJ should obtain a VA medical addendum opinion from a new VA examiner, such as an orthopedist, if available. If an in-person examination is found to be necessary, one should be scheduled if not otherwise contraindicated due to safety concerns. If an in-person examination is not possible, a telehealth examination should be conducted. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all right arm disabilities present during the appeal period (from September 2011). (b.) For each right arm disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The Veteran's statements of having continuous symptoms since service must be considered. A complete rationale must be provided for all opinions expressed. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why that opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Meawad 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.