Veteranclaims’s Blog

January 18, 2020

Single Judge Application; challenge to examiner’s credentials; Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019); curriculum vitae and other information about qualifications of a medical examiner;

Filed under: Uncategorized — veteranclaims @ 2:37 pm

Excerpt from decision below:

“However, “once the veteran raises a challenge to the competency of the medical examiner, the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner’s qualifications.” Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). Once the veteran makes this challenge, “[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether . . . the medical examiner was competent to provide the opinion.” Id.
A veteran’s burden in challenging an examiner’s credentials must be offset by the “ability to secure from the VA the information necessary to raise the competency challenge.” Id. Once information about an examiner’s credentials has been requested, the claimant “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.” Id.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0428
RICHARD V. GUILMETTE, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
FALVEY, Judge: Army veteran Richard V. Guilmette appeals a January 11, 2019, Board of Veterans’ Appeals decision that denied compensation for sleep apnea.1 This appeal is timely, the Court has jurisdiction to review the Board’s decision, and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether the Board should have addressed a challenge to the credentials of the VA examiner who provided a medical opinion in 2017. We are also asked to determine whether the examiner’s lack of proper credentials rendered a 2017 examination inadequate. Because the Board did not address the veteran’s challenge to the examiner’s
credentials, or explain why the credentials were not provided pursuant to the duty to assist, we will set aside the Board’s January 11, 2019, decision and remand the matter for further adjudication.
1 The Board also remanded the matter of an effective date prior to December 8, 2014, for post-traumatic
stress disorder. We lack authority to address this nonfinal matter. See 38 U.S.C. § 7252(a) (Court has “exclusive
jurisdiction” to review final Board decisions); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (a Board remand
“does not represent a final decision over which this Court has jurisdiction”).
2
I. ANALYSIS
Mr. Guilmette argues that the Board provided an inadequate statement of reasons or bases
because it did not address his contention that the examiner who provided the 2017 examination
lacked the proper credentials. The Board is required to support its decision with a written statement
of the reasons or bases that is understandable by the claimant and facilitates review by this Court.
See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). The statement of
reasons or bases must explain the Board’s reasons for discounting favorable evidence, Thompson v. Gober, 14 Vet.App. 187, 188 (2000), discuss all issues raised by the claimant or the evidence of record, Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009), and discuss all provisions of law and regulation where they are made “potentially applicable through the assertions and issues raised in the record,” Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991).
Because VA ordinarily may presume that its examiners are competent, in the absence of
some challenge to “a VA medical expert’s competence or qualifications before the Board, . . . VA
need not affirmatively establish [the] expert’s competency.” Rizzo v. Shinseki, 580 F.3d 1288, 1291
(Fed. Cir. 2009). However, “once the veteran raises a challenge to the competency of the medical examiner, the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner’s qualifications.” Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). Once the veteran makes this challenge, “[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether . . . the medical examiner was competent to provide the opinion.” Id.
A veteran’s burden in challenging an examiner’s credentials must be offset by the “ability to secure from the VA the information necessary to raise the competency challenge.” Id. Once information about an examiner’s credentials has been requested, the claimant “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.” Id.

Here, Mr. Guilmette specifically challenged the examiner’s credentials below. Just after the
2017 examination was provided, the veteran filed a formal request for the examiner’s “credentials,
including but not limited to the curriculum vitae.” Record (R.) at 369. According to Mr. Guilmette,
he needed this information because it is not clear who authored the 2017 examination report or
whether that person’s credentials were greater than those of the veteran’s private physician, who
3
submitted a favorable medical opinion on the veteran’s behalf. Appellant’s Brief (Br.) at 17-18.
Although VA acknowledged receiving the veteran’s credentials request, it did not provide the
requested information. R. at 361-62; Secretary’s Br. at 17 (acknowledging that VA received the
veteran’s request but did not provide the examiner’s credentials).
Given Mr. Guilmette’s specific challenge to the 2017 examiner’s credentials, the Board
should have addressed the veteran’s argument, made the requisite findings of fact regarding the
examiner’s qualifications, and “provide[d] reasons and bases for concluding [that] the medical
examiner was competent to provide the opinion.” Francway, 940 F.3d at 1308; see also Robinson,
21 Vet.App. at 552 (Board must address all issues raised by the appellant). The Board also should
have addressed VA’s failure to respond to the veteran’s credentials request and explained why it
nonetheless found the duty to assist had been met. Francway, 940 F.3d at 1308; see also Robinson,
21 Vet.App. at 552 (Board must address all issues reasonably raised by the record).
The Board’s failure to address these matters renders its statement of reasons or bases
inadequate. See Robinson, 21 Vet.App. at 552; Allday, 7 Vet.App. at 527. Remand is warranted
for the Board to provide an adequate statement of reasons or bases and make the requisite findings
of fact in the first instance. Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate
“where the Board has, [among other things,] failed to provide an adequate statement of reasons
or bases for its determinations, or where the record is otherwise inadequate”); see also Hensley v.
West, 212 F.3d 1255, 1263-64 (Fed. Cir. 2000) (when a court of appeals reviews a lower court’s
decision, it may remand it if the previous adjudicator failed to make findings of fact essential to
the decision).
Because the claim is being remanded, the Court need not address Mr. Guilmette’s
additional arguments that would result in no broader remedy than a remand. See Mahl v. Principi,
15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no
need to analyze and discuss all the other claimed errors that would result in a remedy no broader
than a remand.”). Additionally, his argument that the medical examination is inadequate because
the examiner lacked the proper credentials is inextricably intertwined with the remanded matter.
Gurley v. Nicholson, 20 Vet.App. 573, 575 (2007) (recognizing validity of a judicial-economy
remand when two issues are inextricably intertwined).
4
In pursuing his claim on remand, the veteran will be free to submit additional argument
and evidence as to the remanded matter, and he has 90 days to do so from the date of the
postremand notice VA provides. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order); see also Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider
any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see
also Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical
examination of the justification for the decision.”).
II. CONCLUSION
On consideration of the above, that part of the Board’s January 11, 2019, decision that
addressed sleep apnea is SET ASIDE and the matter is REMANDED for further adjudication.
DATED: January 16, 2020
Copies to:
Jonathan W. Greene, Esq.
VA General Counsel (027)

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