Citation Nr: 22015607
Decision Date: 03/18/22	Archive Date: 03/18/22

DOCKET NO. 16-57 896
DATE: March 18, 2022

REMANDED

Entitlement to service connection for a pulmonary disorder, to include chronic bronchitis, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1969 to December 1973. 

The Veteran's case was previously before the Board in October 2021 but was remanded to the Agency of Original Jurisdiction for additional development.  Specifically, the AOJ was required to obtain a new medical opinion addressing the etiology of the Veteran's pulmonary disorder.  The required opinion was obtained and associated with the claims file in December 2021.   Accordingly, the Board finds there has been substantial compliance with the remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

Entitlement to service connection for a pulmonary disorder, to include chronic bronchitis

While the Board regrets the additional delay, further remand of the Veteran's appeal is required.  

In a March 2022 appellate brief, the Veteran's representative noted that under Francway v. Wilkie, the Federal Circuit held that "[o]nce 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," "mandated by VA's duty to assist." 940 F.3d 1304, 1308 (2019).  The Veteran's representative then specifically argued that the medical opinion obtained in December 2021 was inadequate because the opinion was provided by a physician specializing in "General Practice, Obstetrics and Gynecology".  The Veteran's representative contends that a new examination and opinion by a "board-certified specialist" is required to comprehensively decide the Veteran's claim.  

The Board notes that an examination provided by a board-certified specialist is not required under the VA's duty to assist. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (stating the VA satisfies its duty to assist when it provides a medical examination performed by a person who is "qualified through education, training, or experience to offer medical diagnoses, statements, or opinions").  However, under Francway, the Veteran and his representative are entitled to a copy of the physician's curriculum vitae as part of the "information necessary to raise the competency challenge."  940 F.3d at 1308.

The Board notes that a similar request was made for the curriculum vitae of the physician that completed a March 2020 medical opinion.  However, the October 2021 Board remand determined that medical opinion was inadequate, thus, the physician's opinion is assigned no probative value and the request for the curriculum vitae is now moot. 

Accordingly, the matter is REMANDED for the following action:

1. Provide information to demonstrate the physician that authored the December 2021 was medically qualified to offer the requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)).  This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019).

2. After all completed development, the AOJ should then readjudicate the claim.  If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board.

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Riordan, 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.