Francway v. Wilkie, No. 18-2136 (Fed. Cir. 2019)Annotate this Case
While serving on a Navy aircraft carrier in 1969, Francway was hit by wind: “[t]he resulting fall caused him to injure his back.” He “was placed on bedrest for a week and assigned to light duty for three months.” In 2003, Francway filed a VA claim for service connection for his back disability. In 2003-2011, Francway was examined multiple times by an orthopedist and had his medical records separately reviewed by the orthopedist and an internist. They concluded that Francway’s current back disability was not likely connected to his 1969 injury. After multiple appeals and remands, Francway submitted new evidence from his longtime friend, attesting to Francway’s history of back disability. The Board again remanded, with instructions that Francway’s “claims file should be reviewed by an appropriate medical specialist” and that the examiner should reconcile any opinion with the statements from Francway's "buddy statement.” Francway was again examined by the orthopedist, who concluded that Francway’s symptoms were unlikely to be related to his injury but did not address the “buddy statement.” The internist reviewed Francway’s file and the “buddy statement,” and reached a similar conclusion. The Board concluded that there was insufficient evidence of a nexus between Francway’s 1969 injury and his current disability and that the VA had complied with the remand orders. The Veterans Court concluded that Francway had not preserved his claim that the internist who reviewed the “buddy statement” was not an “appropriate medical specialist” under the remand order. Francway had not challenged the examiner’s qualifications before the Board. The Federal Circuit affirmed, noting that the Board and Veterans Court properly apply a presumption of competency in reviewing the opinions of VA medical examiners.