Francway v. Wilkie

Case Details

  • Court: United States Court of Appeals for the Federal Circuit
  • Case Number: 940 F.3d 1304
  • Judges: Sharon Prost | Alan D. Lourie | Timothy B. Dyk | Pauline Newman | Kimberly A. Moore | Jimmie V. Reyna | Evan J. Wallach | Richard G. Taranto | Raymond T. Chen | Todd M. Hughes | Kara Farnandez Stoll
  • Decided: October 15, 2019

Parties Involved

  • Plaintiff: Ernest L. Francway, Jr.
    • Counsel for Plaintiff: William H. Milliken  | Michael E. Joffre
  • Defendant: Robert Wilkie, Secretary of Veterans Affairs
    • Counsel for Defendant: William J. Grimaldi | Samantha Ann Syverson |  Y. Ken Lee | Lara K. Eilhardt | Martin F. Hockey, Jr. |  Robert Edward Kirschman, Jr. |Joseph Harold Hunt


Memorial Day, initially referred to as Decoration Day, was observed by many communities after the Civil War to commemorate the sacrifices of Civil War soldiers. Observed on the last Monday of May every year, it is designated as an annual day of remembrance to honor all those who have died in service to the United States during peace and war.

On this occasion, I would like to draw attention to the fact that if the testimony of a Veterans Affairs (VA) expert is not  challenged, the 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.


Francway served on active duty in the United States Navy from August 1968 to May 1970. In 1969, Francway was serving on an aircraft carrier. He contended that a gust of wind hit him while he was carrying a set of wheel chocks. This caused him to fall and injure his back. He claimed that the incident resulted in him being placed on bed rest for a week. The Navy then assigned him to light duty for three months. Francway argued that this injury connected to his current lower back disability. He noted that after the accident, he received treatment for back problems while in service.

In April 2003, Francway filed a claim with the Department of Veterans Affairs for service connection for his back disability. Between 2003 and 2011, multiple medical professionals, including an orthopedist, an internist, and a physician’s assistant, examined Francway and reviewed his medical records. They concluded that Francway’s current back disability was not connected to his injury in 1969.

After multiple appeals and remands, in 2013, Francway sought to reopen his claim based on new and material evidence from a longtime friend’s “buddy statement” attesting to Francway’s history of lower back disability after his 1969 injury. The Board remanded the case to the regional office with instructions to have an “appropriate medical specialist” review Francway’s claims file and provide an opinion on whether there was at least a 50 percent probability that he had a low back disorder resulting from active service.

Court Discussion

The Court discussed the presumption of competency for VA medical examiners. It noted that since 2009, the Court held that the Board had properly applied a presumption of competency. The Veterans Court had also properly applied this presumption. This presumption was used in reviewing the opinions of VA medical examiners. The presumption originated from the court’s decision in Rizzo v. Shinseki, where it stated that absent a challenge to the expertise of a VA expert, the VA need not present affirmative evidence of a physician’s qualifications as a precondition for the Board’s reliance on that physician’s opinion.

Francway argued 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.

The Court saw no reason to distinguish between how the presumption applied to “general” medical examiners as compared to “specialists.” The presumption was that the VA had properly chosen an examiner who was qualified to provide competent medical evidence in a particular case absent a challenge by the veteran.


The Court held that Francway did not challenge the medical examiner’s competency before the Board, so the presumption of competency applied. The Court found no legal error with the Veterans Court’s decision affirming the Board’s denial of Francway’s claim for compensation for his back injury.


Key Takeaways:

  1. The presumption of competency of a medical examiner for the United States Department of Veterans Affairs (VA) is not an evidentiary burden, it’s kind of a burden to request the examiner’s qualifications.
  2. The veteran has the right, absent unusual circumstances, to request the curriculum vitae of a medical examiner from the VA. The veteran can also request other information about the examiner’s qualifications. This is mandated by the VA’s duty to assist.
  3. The presumption of competency applies to both general medical examiners and specialists unless the veteran raises a challenge to the examiner’s competency.