Single Judge Application; In Rizzo v. Shinseki, the U.S. Court of Appeals for the Federal Circuit previously held that VA need not affirmatively establish an examiner’s competency. 580 F.3d 1288, 1291 (Fed. Cir. 2009), overruled by Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (finding that the presumption of competency requires nothing more than is required for veterans in other contexts—i.e., simply that the veteran raise the issue—and that, once the veteran raises such a challenge, the presumption has no further effect and VA must satisfy its burden of persuasion as to the examiner’s qualifications). But, to the extent that Francway did not overrule the holding in Rizzo, the issue here is not the examiner’s competency; In addition, in Sickels v. Shinseki, the Federal Circuit found unpersuasive the veteran’s argument—that he should not be required to assert that the examiner was insufficiently informed—because, like in Rizzo, he had not raised that concern before the Board. 643 F.3d 1362, 1366 (Fed. Cir. 2011) (finding that an examiner’s competency and whether the examiner was sufficiently informed were similar in that a veteran must challenge both and, because Mr. Sickels had not done so, the Board was not required to address the issue of whether the examiner understood the adjudicator’s instructions);
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
JACK T. BREWSTER, APPELLANT,
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Marine Corps veteran Jack T. Brewster appeals through counsel a
December 3, 2018, Board of Veterans’ Appeals decision denying service connection for an
acquired psychiatric disorder, including post-traumatic stress disorder (PTSD) and major
depressive disorder, and for a skin rash, including porokeratosis (skin condition), including as
secondary to the acquired psychiatric disorder. The appeal is timely; the Court has jurisdiction to
review the Board 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 erred in applying the presumption of regularity
when assessing the adequacy of a June 2018 VA examination. Because the Board provided
inadequate reasons or bases for applying the presumption and for ultimately denying the acquired
psychiatric disorder claim, and because the skin rash claim is sufficiently intertwined with the
acquired psychiatric disorder claim, the Court will set aside the Board decision and remand those
Mr. Brewster served on active duty from December 1993 to October 1997. Record (R.) at 531. He is service connected for right knee arthritis, limited extension and instability of the right
knee associated with arthritis, and bilateral tinnitus. See R. at 419-420. In November 2010, the
veteran filed claims for service connection for an acquired psychiatric condition and a skin rash.
R. at 4549-50. After several VA