`
`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: July 23, 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.
`
`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
`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
`
`

`

`FRANCWAY v. WILKIE
`
`3
`
`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 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
`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.
`
`

`

`4
`
`FRANCWAY v. WILKIE
`
`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 construe Francway’s continued argument
`as to the illegitimacy of the presumption as a request for
`the panel to ask for an en banc hearing under Federal Cir-
`cuit Rule 35 to overturn Rizzo and subsequent cases.1 We
`decline to do so. We see no reason for en banc review since
`the “presumption of competency” is far narrower than
`
`
`1
`“Although only the court en banc may overrule a
`binding precedent, a party may argue, in its brief and oral
`argument, to overrule a binding precedent without peti-
`tioning for hearing en banc. The panel will decide whether
`to ask the regular active judges to consider hearing the case
`en banc.” Fed. Cir. R. 35(a)(1) (emphasis added).
`
`

`

`FRANCWAY v. WILKIE
`
`5
`
`Francway asserts and is not inconsistent with the statu-
`tory scheme.
`“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
`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);
`
`

`

`6
`
`FRANCWAY v. WILKIE
`
`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
`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
`
`

`

`FRANCWAY v. WILKIE
`
`7
`
`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
`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
`
`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.
`Shinseki, 26 Vet. App. 517 (2014)) (conceding that the pre-
`sumption would not apply in such a situation).
`
`

`

`8
`
`FRANCWAY v. WILKIE
`
`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 rea-
`sons 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
`
`

`

`FRANCWAY v. WILKIE
`
`9
`
`determine 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
`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.
`
`