Francway v. Wilkie

United States Court of Appeals
for the Federal Circuit
______________________

ERNEST L. FRANCWAY, JR.,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2018-2136
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-3738, Judge Michael P. Allen,
Judge Amanda L. Meredith, Judge Joseph L. Toth.
______________________

Decided: October 15, 2019
______________________

WILLIAM H. MILLIKEN, Sterne Kessler Goldstein & Fox,
PLLC, Washington, DC, argued for claimant-appellant.
Also represented by MICHAEL E. JOFFRE.

WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by JOSEPH H. HUNT, MARTIN F. HOCKEY,
JR., ROBERT EDWARD KIRSCHMAN, JR.; LARA EILHARDT,
SAMANTHA ANN SYVERSON, Y. KEN LEE, Office of General
2 FRANCWAY v. WILKIE

Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________

Before PROST, Chief Judge, LOURIE and DYK, Circuit
Judges.
Opinion for the court filed by Circuit Judge DYK, in which
PROST, Chief Judge and LOURIE, Circuit Judge, join.
Footnote 1 of the opinion is joined by PROST, Chief Judge,
NEWMAN, LOURIE, DYK, MOORE, O’MALLEY, REYNA,
WALLACH, TARANTO, CHEN, HUGHES, and STOLL, Circuit
Judges.
DYK, Circuit Judge.
Ernest L. Francway appeals from the Court of Appeals
for Veterans Claims’ (“Veterans Court’s”) decision affirm-
ing the Board of Veterans’ Appeals’ (“Board’s”) denial of
Francway’s claim for disability compensation. We affirm.
BACKGROUND
Francway served on active duty in the United States
Navy from August 1968 to May 1970. While serving on an
aircraft carrier in 1969, Francway contends that he was
“hit by a gust of wind while carrying a set of wheel chocks”
and “[t]he resulting fall caused him to injure his back.”
Francway Br. at 4. He contends he “was placed on bedrest
for a week and assigned to light duty for three months fol-
lowing the incident.” Id. Francway claims that this injury
is connected to a current lower back disability, noting that
after his accident he was treated for back problems while
in service.
In April 2003, Francway filed a claim with the Depart-
ment of Veterans Affairs (“VA”) for service connection for
his back disability. Between 2003 and 2011, Francway was
examined multiple times by an orthopedist and had his
medical records separately reviewed by the orthopedist and
FRANCWAY v. WILKIE 3

an internist. They concluded, along with a physician’s as-
sistant that examined Francway, that Francway’s current
back disability was not likely connected to his injury in
1969.
After multiple appeals to and from the Board and re-
mands back to the VA regional office (“RO”), in 2013,
Francway sought to open his claim based on new and ma-
terial evidence from his longtime friend, in a so-called
“buddy statement,” attesting to Francway’s history of lower
back disability after his injury in 1969. The Board again
remanded the case to the RO based on the allegations in
the “buddy statement,” with instructions that Francway’s
“claims file should be reviewed by an appropriate medical
specialist for an opinion as to whether there is at least a 50
percent probability or greater . . . that he has a low back
disorder as a result of active service.” J.A. 1046 (emphasis
added). The Board also instructed that “[t]he examiner
should reconcile any opinion provided with the statements
from [Francway and his “buddy statement”] as to reported
episodes of back pain since active service.” Id. (emphasis
omitted).
In 2014, Francway was examined by the same orthope-
dist who had examined him previously. The orthopedist
concluded that Francway’s current back symptoms were
unlikely to be related to his injury in 1969, but the ortho-
pedist did not address the “buddy statement.” Subse-
quently, the internist who had previously provided the VA
a medical opinion on Francway’s disability reviewed
Francway’s file and the “buddy statement,” and concluded
that it would be speculative to say his current back symp-
toms were related to his earlier injury. The RO again de-
nied Francway’s entitlement to benefits for his back
disability.
The Board concluded that there was insufficient evi-
dence of a nexus between Francway’s injury in 1969 and
his current back disability and that the VA had complied
4 FRANCWAY v. WILKIE

with the earlier remand orders. Francway then appealed to
the Veterans Court, arguing for the first time that the in-
ternist who had reviewed the “buddy statement” was not
an “appropriate medical specialist” within the meaning of
the remand order. The Veterans Court held that Francway
had not preserved that claim because Francway did not
challenge the examiner’s qualifications before the Board.
Francway appealed to this court. We have jurisdiction
pursuant to 38 U.S.C. § 7292(c). A request for initial hear-
ing en banc was denied. Francway v. Wilkie, No. 18-2136
(Nov. 28, 2018), ECF No. 30. We review questions of law de
novo, but, absent a constitutional issue, we “may not re-
view (A) a challenge to a factual determination, or (B) a
challenge to a law or regulation as applied to the facts of a
particular case.” 38 U.S.C. § 7292(d)(2).
DISCUSSION
I
Since 2009, we have held that the Board and Veterans
Court properly apply a presumption of competency in re-
viewing the opinions of VA medical examiners. See Rizzo v.
Shinseki, 580 F.3d 1288, 1290–91 (Fed. Cir. 2009).
Francway first contends that the presumption of com-
petency is inconsistent with the VA’s duty to assist veter-
ans, see 38 U.S.C. § 5103A (requiring the VA to assist
veterans with benefit claims), and the benefit-of-the-doubt
rule, id. § 5107(b) (requiring the VA to give the benefit of
the doubt to the veteran when the evidence is in approxi-
mate equipoise), and that there is no statutory basis for the
presumption. We see no inconsistency since the
FRANCWAY v. WILKIE 5

“presumption of competency” is far narrower than
Francway asserts and is not inconsistent with the statu-
tory scheme. 1
“The purpose of the [VA] is to administer the laws
providing benefits and other services to veterans and the
dependents and the beneficiaries of veterans.” 38 U.S.C.
§ 301(b). In line with this mandate, the VA processes
claims for service-connected disability benefits sought by
veterans, see, e.g., id. §§ 1110, 1131, and, to perform this
duty, the VA relies on medical examiners who provide med-
ical examinations and medical opinions based on review of
the evidence in the record, id. § 5103A(d); 38 C.F.R.
§ 3.159(c)(4). Both the statute and implementing regula-
tions require that these medical examinations and opinions
be based on competent medical evidence, defined, in rele-
vant part, as “evidence provided by a person who is quali-
fied through education, training, or experience to offer
medical diagnoses, statements, or opinions.” 38 C.F.R.
§ 3.159(a)(1).
The presumption of competency originated in our deci-
sion in Rizzo. As we said in Rizzo, “[a]bsent some challenge
to the expertise of a VA expert, this court perceives no stat-
utory or other requirement that VA must present affirma-
tive evidence of a physician’s qualifications in every case as

1 The en banc court formed of PROST, Chief Judge,
NEWMAN, LOURIE, DYK, MOORE, O’MALLEY, REYNA,
WALLACH, TARANTO, CHEN, HUGHES, and STOLL, Circuit
Judges, has determined that to the extent that the decision
here is inconsistent with Rizzo v. Shinseki, 580 F.3d 1288
(Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301
(Fed. Cir. 2010), those cases are overruled. We note that
in the future, the requirement that the veteran raise the
issue of the competency of the medical examiner is best re-
ferred to simply as a “requirement” and not a “presumption
of competency.”
6 FRANCWAY v. WILKIE

a precondition for the Board’s reliance upon that physi-
cian’s opinion.” 580 F.3d at 1291. Although it is referred to
as the presumption of competency, we have not treated this
concept as a typical evidentiary presumption requiring the
veteran to produce evidence of the medical examiner’s in-
competence. Instead, this presumption is rebutted when
the veteran raises the competency issue.
The limited nature of the presumption has been con-
sistently recognized in our caselaw. Beginning with Rizzo,
we have held that “where . . . the veteran does not chal-
lenge a VA medical expert’s competence or qualifications
before the Board,” the “VA need not affirmatively establish
that expert’s competency.” Id. at 1291 (emphasis added);
id. (“Absent some challenge . . . .” (emphasis added)); id.
(“Absent some challenge . . . .”) (emphasis added)). Simi-
larly, in Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011),
we held that “when a veteran suspects a fault with the
medical examiner’s qualifications, it is incumbent upon the
veteran to raise the issue before the Board.” Id. at 1365–66
(emphasis added). “[T]he VA and Board are not required to
affirmatively establish competency of a medical examiner
unless the issue is raised by the veteran.” Id. at 1366 (em-
phasis added). Our holding in Parks v. Shinseki, 716 F.3d
581 (Fed. Cir. 2013), is consistent with this understanding.
Although we noted that “[i]f an objection is raised it may
be necessary for the veteran to provide information to over-
come the presumption,” id. at 585 (emphasis added), the
statement was referring to the specificity of the challenge
rather than requiring the veteran to submit evidence that
is within the control of the VA.
Francway contends that Rizzo held that the veteran
bears the burden of persuasion, or at least production, of
showing that the examiner was incompetent. The only sup-
port for that contention is a quote in Rizzo from the Veter-
ans Court’s decision in Cox v. Nicholson, 20 Vet. App. 563
(2007): “[T]he appellant bears the burden of persuasion on
appeals to th[e Veterans] Court to show that such reliance
FRANCWAY v. WILKIE 7

was in error.” Rizzo, 580 F.3d at 1290–91 (quoting Cox, 20
Vet. App. at 569). First, the Veterans Court’s language in
Cox that Francway cites concerned the veteran’s burden on
appeal to show prejudicial error with the Board’s decision
and did not concern which party bears the initial burden of
demonstrating the examiner’s competence or lack thereof.
Second, although the presumption of competency is based
on Rizzo and subsequent cases from our court, those cases
did not place the burden of persuasion or evidentiary pro-
duction on the veteran, as discussed above.
The presumption of competency requires nothing more
than is required for veteran claimants in other contexts—
simply a requirement that the veteran raise the issue. The
Supreme Court has implicitly recognized that the veteran
bears such a burden of raising an issue in Shinseki v. Sand-
ers, 556 U.S. 396 (2009). There, the Supreme Court noted
the burden placed on the claimant in ordinary litigation to
raise an issue and establish prejudicial error. Id. at 410.
When the Court held that the veteran bears the burden of
showing prejudicial error, it necessarily assumed that the
veteran bears the burden of raising the claim of error in the
first instance. See id.; see also, e.g., Comer v. Peake, 552
F.3d 1362, 1368 (Fed. Cir. 2009) (“[A] veteran is obligated
to raise an issue in a notice of disagreement if he wishes to
preserve his right to assert that issue on appeal . . . .”).
There is nothing in the statute or its interpretation that
relieves the veteran from the obligation to raise an issue in
the first instance in the general run of cases. 2

2 We do not address the applicability of the presump-
tion of competency in cases where the veteran did not chal-
lenge the examiner’s competence, but the record
independently demonstrates an irregularity in the process
of selecting the examiner. See VA Br. at 36 (citing Wise v.
8 FRANCWAY v. WILKIE

Here, once the veteran raises a challenge to the compe-
tency of the medical examiner, the presumption has no fur-
ther 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. The
Board must then make factual findings regarding the qual-
ifications and provide reasons and bases for concluding
whether or not the medical examiner was competent to pro-
vide the opinion. 38 U.S.C. § 7104(d).
Since the veteran is obligated to raise the issue in the
first instance, the veteran must have the ability to secure
from the VA the information necessary to raise the compe-
tency challenge. 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 vi-
tae and other information about qualifications of a medical
examiner. This is mandated by the VA’s duty to assist. See
38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948
(Fed. Cir. 2013) (collecting cases).
The VA agrees with this interpretation of the presump-
tion of competency and the VA’s duties. At oral argument,
the VA agreed that “[the presumption] is not an eviden-
tiary burden, it’s kind of a burden to request [the exam-
iner’s qualifications].” Oral Arg. at 25:34–38. The VA also
recognized its burden to “substantively respond” to the vet-
eran’s challenge “[o]nce the veteran [sufficiently] raises the
issue” and that after a challenge is raised “the VA can’t
come in [to the Board] and say we’re entitled to the pre-
sumption that this person is competent and you have to as-
sume he is competent.” Oral Arg. at 32:29–42. Then, as the
VA notes, the Board has to “make a decision as to whether
the medical officer was actually competent and provide

Shinseki, 26 Vet. App. 517 (2014)) (conceding that the pre-
sumption would not apply in such a situation).
FRANCWAY v. WILKIE 9

reasons and bases explaining that decision.” Oral Arg.
28:50–29:02.
II
Francway alternatively contends that his brief to the
Board sufficiently raised the issue of the medical exam-
iner’s competency because it broadly argued that the med-
ical examinations and opinions were inadequate. But
“whether an examiner is competent and whether he has
rendered an adequate exam are two separate inquiries.”
Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016)
(Hughes, J., concurring in denial of rehearing en banc). The
Veterans Court found that Francway had not raised the
competency issue with sufficient clarity to the Board.
Based on the proper understanding of the presumption of
competency described above, we find no legal error with the
Veterans Court’s decision, and we lack jurisdiction to de-
termine whether the Veterans Court’s decision is correct as
a factual matter.
III
Francway separately contends that this case is distin-
guishable because the issue of the examiner’s competency
arose in the context of a remand order from the Board re-
quiring an “appropriate medical specialist.” In such a situ-
ation, Francway argues that the Board cannot presume the
competency of the selected examiner in a specialty because
the presumption is one of general medical competence not
one regarding an examiner’s expertise in various special-
ties.
We see no reason to distinguish between how the pre-
sumption applies to “general” medical examiners as com-
pared to “specialists.” The presumption is that the VA has
properly chosen an examiner who is qualified to provide
competent medical evidence in a particular case absent a
challenge by the veteran. Parks, 716 F.3d at 585; 38 C.F.R.
§ 3.159(c)(4). Here, as noted above, Francway did not raise
10 FRANCWAY v. WILKIE

the issue of the medical examiner’s competence before the
Board so the presumption applies. Thus, we see no legal
error in the Veterans Court’s decision affirming the Board’s
denial of Francway’s claim to compensation for his back in-
jury.
CONCLUSION
Because Francway did not challenge the medical exam-
iner’s qualifications before the Board, which is all that the
presumption of competency requires, we do not find legal
error with the Veterans Court’s decision.
AFFIRMED
COSTS
No costs.