Citation Nr: 23065645 Decision Date: 12/12/23 Archive Date: 12/12/23 DOCKET NO. 17-28 145 DATE: December 12, 2023 REMANDED Entitlement to service connection for eye disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty for the United States Navy from April 1971 to April 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a Board hearing. A transcript of the hearing is associated with the record. The Veteran's appeal was remanded by the Board in December 2019 to ensure that the RO fulfilled its duty to assist the Veteran. In October 2022, the Veteran was advised that the Veteran's Law Judge who conducted the October 2019 hearing is no longer employed at the Board, and the Veteran was afforded an opportunity to testify at an additional hearing, if desired. However, the Veteran did not respond to the letter. In January 2023, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board finds that there has been substantial compliance with its remand orders. See Dyment v. West, 13?Vet. App.?141, 146-47 (1999); Stegall v. West, 11?Vet. App.?268, 271 (1998). Entitlement to service connection for eye disabilities is remanded. During the pendency of the appeal, to include that the October 2019 hearing, the Veteran has contended that he noticed deterioration of his vision between 1989 and 1991, while on active duty. A September 2020 VA examination diagnosed the Veteran with bilateral glaucoma, a right eye cataract and left eye pseudophakia; however, the examiner opined that none of these disabilities were likely the result of any incident of active duty because the Veteran's available service treatment records did not include diagnoses of these eye disabilities or objective evidence of congruent symptom s. In a January 2023 statement, the Veteran's representative argued that given the lack of complete service treatment records, the examiner's statement that the Veteran's eye conditions are not related to service must specifically address his reports of vision problems while in service. This assertion served as the premise for the Board's most recent remand. In response to the Board's January 2023 remand directives, the RO obtain another medical nexus opinion in July 2023. In this opinion. The examiner stated that the Veteran's eye disabilities are age-related and that there is not a nexus relationship between such and his claimed blurred or double vision while in service. In a September 2023 statement, the Veteran's representative challenged the credentials and whether the examiner who provided the July 2023 Medical Opinion is an appropriate clinician. Specifically, it was noted that the VA-contracted examiner specialized in optometry; however, it was asserted that an ophthalmologist could more adequately address the dates of initial onset and etiologies of the Veteran's eye disabilities. In this regard, 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) (affirming Francway v. Shulkin, No. 16-3738, 2018 U.S. App. Vet. Claims LEXIS 133 (Vet. App. Feb. 6, 2018). The Federal Circuit 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. With the above in mind, the Board concludes that VA must respond to the Veteran's request for the July 2023 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 requests for the credentials of the July 2023 examiner who provided a nexus opinion regarding service connection for the bilateral eye conditions, to the extent possible and as allowed by law, including but not limited to obtaining a Curriculum Vitae (CV). See Francway, 940 F.3d at 1308. The matters are REMANDED for the following action: 1. To the extent possible, provide the credentials of the July 2023 VA examiner, as allowed by law, including but not limited to a CV, 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. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. Scott W. Dale Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wood, Christine F. 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.