Citation Nr: 23052845 Decision Date: 09/22/23 Archive Date: 09/22/23 DOCKET NO. 16-29 412 DATE: September 22, 2023 REMANDED Entitlement to a compensable disability rating for bilateral hearing loss is remanded. Entitlement to a rating in excess of 30 percent disabling for post-traumatic stress disorder (PTSD) prior to January 26, 2017 is remanded. Entitlement to a rating in excess of 50 percent disabling for PTSD from January 26, 2017 to June 24, 2019 is remanded. Entitlement to a rating in excess of 70 percent disabling for PTSD from June 25, 2019 is remanded. Entitlement to a total rating for compensation purposes based on unemployability due to service-connected disabilities (TDIU) prior to June 25, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to March 1970 and from September 1971 to October 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously adjudicated by the Board in a June 2021 decision. The issues of an increased rating for bilateral hearing loss and entitlement to a TDIU prior to June 25, 2019 were remanded, but the issue of an increased rating for the Veteran's service-connected PTSD prior to January 26, 2017 was denied while the Veteran was granted an increased rating of 50 percent disabling for PTSD from January 26, 2017 through June 24, 2019 and 70 percent from June 25, 2019. The Veteran appealed the Board's June 2021 decision to the United States Court of Appeals for Veterans Claims (Court). There, the Court vacated and remanded part of the June 2021 decision on the grounds that the Board failed to provide an adequate statement of reasons or bases addressing the Veteran's representative's May 2019 letter challenging the qualifications of the August 2015 VA examiner. 1. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. 2. Entitlement to an increased rating for PTSD is remanded. In addition to the Court remanding the issue of an increased rating for PTSD with its multiple staged ratings to provide the Veteran with the August 2015 VA examiner's curriculum vitae (CV), the Veteran's representative also requested multiple times after the June 2022 Court JMPR for the qualifications of the March 2016 and September 2019 VA examiners. The Veteran and his representative were provided a response letter stating that while they requested the CV of a VA medical examiner, the request lacked the requisite specificity to process it and that the Board does not gather or maintain those records and that they need to resubmit their request by emailing a different source. The Court has held that although the competency of a VA examiner is presumed, the presumption has no further effect once the veteran raises a challenge to competency of the VA examiner; once a challenge has been raised, VA has a duty to satisfy its burden of persuasion as to the examiner's qualifications. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The Board is unable to make findings of fact to address the Veteran's challenge of the competency of the VA examiner in this case without more information regarding the qualifications of the VA examiner. The Board must remand this issue to obtain any available pertinent documentation regarding the qualifications of the examiners who performed the August 2015, March 2016, and September 2019 VA examinations. 3. Entitlement to a TDIU prior to June 25, 2019 is remanded. Finally, because a decision on the remanded issues of entitlement to an increased rating for PTSD and for bilateral hearing loss could significantly impact a decision on the issue of entitlement to TDIU prior to June 25, 2019, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU prior to June 25, 2019 is required. The matters are REMANDED for the following action: 1. Obtain the qualifications, such as a CV or other appropriate demonstrable documentation (redacted if deemed warranted) of the August 2015, March 2016, and September 2019 VA examiners. Provide this documentation to the Veteran and his representative, and afford them an adequate opportunity to respond. Also associate this documentation with the claims-file. If the sought documentation cannot be obtained and made available for review in the claims file, this fact should be clearly documented in the claims-file along with an explanation of the reasons for the unavailability. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to June 25, 2019. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. G. William Riggs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.