Citation Nr: 22016503
Decision Date: 03/22/22	Archive Date: 03/22/22

DOCKET NO. 16-15 728A
DATE: March 22, 2022

REMANDED

Entitlement to service connection for the cause of the Veteran's death is remanded.

REASONS FOR REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Appellant's claim so that she is afforded every possible consideration.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 

Entitlement to service connection for the cause of the Veteran's death is remanded.

The Appellant's attorney representative, prior to his withdrawal, raised the issue seeking to challenge the competency and qualifications of the VA examiner. See correspondence dated in December 2021.  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 December 2021 correspondence challenges the competency of the VA examiner which meets the Francway criteria. The correspondence cites specific reasons for the alleged inadequacy of the VA physician, requests "a review of the credentials and expertise of examiner", and notes that "It seems very unlikely that one doctor has the specialized expertise to examine every medical issue in the instant case."   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 Appellant. 

As the Appellant's representative has provided adequate rationale challenging the competency of a prior VA opinion 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. 

The Board notes that the Appellant elected to proceed pro se in her representation.  However, the Board still acknowledges and respects the Francway challenge and therefore finds this remand is warranted.

The matters are REMANDED for the following action:

1. The AOJ should take appropriate action to respond to the Appellant's and her previous 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 October 2021 opinion and December 2021 cause of death addendum opinion.

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2. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Mountford, 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.