Francway v. Wilkie

• Decision Date: 15 October 2019
• Docket Number: 2018-2136
• Parties: Ernest L. FRANCWAY, Jr., Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

940 F.3d 1304

Ernest L. FRANCWAY, Jr., Claimant-Appellant

v.Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee

2018-2136

United States Court of Appeals, Federal Circuit.

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 Justice, 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 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 affirming 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 following 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 Department 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 an internist. They concluded, along with a physician’s assistant 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 remands back to the VA regional office ("RO"), in 2013, Francway sought to open his claim based on new and material 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 orthopedist 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 orthopedist did not address the "buddy statement." Subsequently, 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 symptoms were related to his earlier injury. The RO again denied Francway’s entitlement to benefits for his back disability.

The Board concluded that there was insufficient evidence of a nexus between Francway’s injury in 1969 and his current back disability and that the VA had complied with the earlier remand orders. Francway then appealed to the Veterans Court, arguing for the first time that the internist 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 hearing 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 review (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 reviewing 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 competency is inconsistent with the VA’s duty to assist veterans, 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 approximate equipoise), and that there is no statutory basis for the presumption. We see no inconsistency since the "presumption of competency" is far narrower than Francway asserts and is not inconsistent with the statutory 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 medical 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 regulations require that these medical examinations and opinions be based on competent medical evidence, defined, in relevant part, as "evidence provided by a person who is qualified 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 decision in Rizzo . As we said in Rizzo , "[a]bsent some challenge to the expertise of a VA expert, this court perceives no statutory or other requirement that VA must present affirmative evidence of a physician’s qualifications in every case as a precondition for the Board’s reliance upon that physician’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 incompetence. Instead, this presumption is rebutted when the veteran raises the competency issue.

The limited nature of the presumption has been consistently recognized in our caselaw. Beginning with Rizzo , we have held that "where ... the veteran does not challenge 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)). Similarly, 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 (emphasis 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 overcome 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 support for that contention is a quote in Rizzo from the Veterans 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 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 production 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. Sanders , 556 U.S. 396, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009). There, the Supreme Court noted the burden placed on the claimant in ordinary litigation to raise an issue and establish...