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 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 
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 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 
FRANCWAY v. WILKIE 3

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 
4 FRANCWAY v. WILKIE

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 
FRANCWAY v. WILKIE 5

“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 

 

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 referred to simply as a “requirement” and not a “presumption 

of competency.” 
6 FRANCWAY v. WILKIE

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 
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 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 (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 presumption of competency in cases where the veteran did not challenge 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 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. The 

Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding 

whether or not the medical examiner was competent to provide 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 competency 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 vitae 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 presumption of competency and the VA’s duties. At oral argument, 

the VA agreed that “[the presumption] is not an evidentiary burden, it’s kind of a burden to request [the examiner’s qualifications].” Oral Arg. at 25:34–38. The VA also 

recognized its burden to “substantively respond” to the veteran’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 presumption that this person is competent and you have to assume 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 presumption 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 examiner’s competency because it broadly argued that the medical 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 determine whether the Veterans Court’s decision is correct as 

a factual matter.

III

Francway separately contends that this case is distinguishable because the issue of the examiner’s competency 

arose in the context of a remand order from the Board requiring an “appropriate medical specialist.” In such a situation, 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 specialties. 

We see no reason to distinguish between how the presumption applies to “general” medical examiners as compared 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 injury. 

CONCLUSION

Because Francway did not challenge the medical examiner’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.