Arnold Parks v. Shinseki , 716 F.3d 581 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
ARNOLD J. PARKS,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7089
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-2197, Judge Robert N. Davis.
______________________
Decided: May 3, 2013
______________________
DORIS J. HINES, Finnegan, Henderson, Farabow, Gar-
rett & Dunner, LLP, of Washington, DC, argued for
claimant-appellant. With her on the brief were RONALD L.
SMITH and STEPHEN L. HENNESSY.
MARTIN F. HOCKEY, JR., Assistant Director, Commer-
cial Litigation Branch, Classifications Unit, United States
Department of Justice, of Washington, DC, argued for the
respondent-appellee. With him on the brief were Stuart
F. DELERY, Acting Assistant Attorney General, JEANNE E.
2 ARNOLD PARKS v. SHINSEKI
DAVIDSON, Director, and TODD M. HUGHES, Deputy Direc-
tor. Of counsel on the brief were DAVID J. BARRANS,
Deputy Assistant General Counsel, and JONATHAN E.
TAYLOR, Attorney, United States Department of Veterans
Affairs, of Washington, DC.
______________________
Before RADER, Chief Judge, SCHALL and BRYSON, Circuit
Judges.
RADER, Chief Judge.
The United States Court of Appeals for Veterans
Claims affirmed the denial of service connection for Mr.
Parks’ asserted medical conditions. A. 1-5. Discerning no
reversible error, this court affirms.
I.
Mr. Parks served in Vietnam from 1964 to 1966. A. 2.
Along with 6,000 other soldiers, Mr. Parks volunteered for
a then-classified project called “Project 112.” Id. Mr.
Parks participated in a part of Project 112 called Ship-
board Hazard Defense (SHAD). A. 119. As part of his
participation, the United States government intentionally
exposed him to three chemical warfare agents.
In 2000 and again in 2002, Mr. Parks sought service
connection for diabetes type II with peripheral neuropa-
thy and heart disability, asserting they were secondary to
chemical exposure. A. 2. The Regional Office (RO) denied
these claims. Mr. Parks appealed to the Board of Veter-
ans’ Appeals (Board).
In this time period, the United States government de-
classified certain details about the chemicals used in
Project 112. Appellee’s Br. 3. The Department of Defense
reported that it did not know of any long-term effects
caused by exposure to the chemicals that had been used
in Project 112. However, the Department of Veterans
Affairs (VA) stated that “specific health problems may be
ARNOLD PARKS v. SHINSEKI 3
linked to service-related chemical exposures on an indi-
vidual basis when there is evidence of a causal link to
military service.” A. 213. As a result, in 2004 the Veter-
ans Health Administration issued a directive requiring
the VA to provide to Project 112 veterans “a thorough
clinical evaluation,” enhanced access to the VA health
care system, and free care for “any illness possibly related
to their participation in” Project 112. A. 122. See also 38
U.S.C. § 1710(e)(1)(E) (providing “hospital care, medical
services, and nursing home care” for veterans who had
participated in SHAD or Project 112).
The VA then sent Mr. Parks a letter identifying the
chemicals to which he had been exposed and providing
instructions on how to obtain additional medical examina-
tions. A. 587. In 2007, the Board remanded Mr. Parks’
appeal to the VA for it “to provide [Mr. Parks] with a
complete Project 112 examination.” A. 606. Carrying out
the Board’s remand order, the VA arranged for Mr. Parks
to have medical exams for diabetes mellitus, heart condi-
tions, and other issues Mr. Parks believed had been
caused by his participation in SHAD. A. 604-06.
In May 2008, the VA selected Ms. Larson, an ad-
vanced registered nurse practitioner (ARNP), to deter-
mine whether there was a potential relationship between
Mr. Parks’ participation in SHAD and his medical condi-
tions. In her report, Ms. Larson described Mr. Parks’
exposure and his medical history. She then briefly de-
scribed the medical literature concerning the health
effects known to have been caused by exposure to the
chemicals used in SHAD. She wrote that the literature
established that there were no documented long-term
health effects from exposure to the three chemicals, and
that tests could not identify their presence in the human
body long after exposure. A. 504. She ultimately stated
that Mr. Parks’ “claimed conditions of diabetes, neuropa-
thy, heart condition and chronic bronchitis is [sic] less
4 ARNOLD PARKS v. SHINSEKI
likely than not secondary to his confirmed chemical
exposures.” Id. at 505.
Later, the RO issued a supplemental statement find-
ing no service connection. A. 172. The RO relied upon
Ms. Larson’s report and other public medical authorities
regarding the effects of the pertinent chemicals. A. 170-
75.
With assistance of a non-lawyer from the Disabled
American Veterans, Mr. Parks appealed to the Board.
The Board found Mr. Parks’ claim had been properly
evaluated. Parks v. Shinseki, No. 10-2197, 2011 WL
6358019 (U.S. Vet. App. Dec. 20, 2011). Further, the
Board found no service connection based upon (1) the fact
that Mr. Parks had had no symptoms for forty years after
his participation in Project 112, (2) he was and remained
a heavy smoker, and (3) the only competent medical
opinion came from an ARNP, who had found no service
connection. See id.Represented by counsel, Mr. Parks appealed to the
Veterans Court. Mr. Parks for the first time asserted that
the Board had erred by basing its decision on Ms. Lar-
son’s report because it did not constitute the required
“competent medical evidence.” 38 C.F.R. § 3.159(a)(1). In
response, the Veterans Court did not remand for the
Board to consider Ms. Larson’s qualifications, but instead
rejected Mr. Parks’ position as a matter of law. The
Veterans Court reasoned that under Cox v. Nicholson, 20
Vet. App. 563 (2007), “a nurse practitioner is able to
provide a medical examination that meets the regulatory
requirements of ‘competent medical evidence’” in terms of
Section 3.159(a)(1). A. 3. Further, the Veterans Court
refused to consider information Mr. Parks’ lawyers had
found on the Internet after the Board’s decision, which
ostensibly showed Ms. Larson had specialized only in
family medicine. A. 4. The Veterans Court refused to
ARNOLD PARKS v. SHINSEKI 5
consider the information because it was not part of the
record before the Board. Id.Mr. Parks appeals. This court has jurisdiction under
38 U.S.C. § 7292.
II.
This court reviews questions of law de novo. 38 U.S.C.
§ 7292(d)(1); see Chandler v. Shinseki, 676 F.3d 1045,
1047 (Fed. Cir. 2012); Boggs v. Peake, 520 F.3d 1330, 1334
(Fed. Cir. 2008). However, absent a constitutional issue,
the court may not review a challenge to a factual deter-
mination or a challenge to a law or regulation as applied
to the facts of a particular case. 38 U.S.C. § 7292(d)(2).
III.
The government challenges the jurisdiction of this
court, contending that ruling on Mr. Parks’ arguments
“would require this Court to apply law to facts, which it
does not possess jurisdiction to do.” Appellee’s Br. 11.
This court generally lacks jurisdiction to apply law to
facts, and it will not do so here.
The Veterans Court’s opinion did not recite any sub-
stantive facts in concluding that “a nurse practitioner is
able to provide a medical examination that meets the
regulatory requirements” of “competent medical evidence”
under Section 3.159(a)(1). A. 3. Instead, it relied upon
Cox’s statement that examinations need not always be
conducted by physicians, the definition of “competent
medical evidence” in Section 3.159(a)(1), and a dictionary
definition of “nurse practitioners.” A. 3. Removing all
doubt about the nature of the question before this court,
the government states that “no law or regulation” re-
quires reversal here. Appellee’s Br. 24.
The court may determine whether no law or regula-
tion so requires without analyzing the application of those
6 ARNOLD PARKS v. SHINSEKI
laws to these facts. To that extent, this court has jurisdic-
tion.
IV.
The government argues that Mr. Parks waived the is-
sue on appeal. Contrary to the approach of the Veterans
Court and the briefing of the parties, the issue here is
whether Mr. Parks waived his right to overcome the
presumption that the selection of a particular medical
professional means that the person is qualified for the
task. The presumption is not whether all nurse practi-
tioners are qualified to give any medical opinion because
of how the dictionary defines their capabilities.
Two principles combine to control here. First, the VA
is required in some circumstances, including this one, to
rely only on “competent medical evidence” as defined by
Section 3.159(a)(1). “Competent medical evidence” is
“evidence provided by a person who is qualified through
education, training, or experience to offer medical diagno-
ses, statements, or opinions.” 38 C.F.R. § 3.159(a)(1).
Second, in some circumstances, including this one, the VA
operates under the benefit of a rebuttable presumption of
regularity. See Rizzo v. Shinseki, 580 F.3d 1288, 1292
(Fed. Cir. 2009). This presumption provides that “in the
absence of clear evidence to the contrary, the court will
presume that public officers have properly discharged
their duties” and that “what appears regular is regular.”
Id. (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed.
Cir. 2004) and Butler v. Principi, 244 F.3d 1337, 1340
(Fed. Cir. 2001)).
In the case of competent medical evidence, the VA
benefits from a presumption that it has properly chosen a
person who is qualified to provide a medical opinion in a
particular case. Sickels v. Shinseki, 643 F.3d 1362, 1366
(Fed. Cir. 2011). Viewed correctly, the presumption is not
about the person or a job title; it is about the process.
ARNOLD PARKS v. SHINSEKI 7
A presumption exists, of course, to eliminate the bur-
den to produce evidence. As a result, the Veterans Court
did not need to examine the dictionary definition of “nurse
practitioner” or to require the government to proffer
evidence about the qualifications of the medical profes-
sional in this case. Repeated unnecessary remands for
additional evidence complicate many cases and lead to
system-wide backlogs and delays. Requiring the Board to
present extensive evidence on the competence of a profes-
sional presumed to be competent is not only illogical, but
adds to those delays. See Sickels, 643 F.3d at 1365 (rec-
ognizing that the Board is not required to “give reasons
and bases for concluding that a medical examiner is
competent unless the issue is raised by the veteran,”
because doing otherwise “would fault the Board for failing
to explain its reasoning on unraised issues”).
Even though the law presumes the VA has selected a
qualified person, the presumption is rebuttable. See
Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010)
(explaining that a veteran challenging the qualifications
of a VA-selected physician must set forth specific reasons
why the veteran believes the expert is not qualified to
give a competent opinion). The government argues that
Mr. Parks waived any right to rebut the presumption that
the VA has properly done its job. For the following rea-
sons, this court holds that Mr. Parks indeed waived the
issue.
V.
The first step to overcoming the presumption is to ob-
ject even where, as here, the veteran is acting pro se. See
Bastien, 599 F.3d at 1307. While, for reasons discussed
below, a pro se veteran’s objection to the selection of a
particular medical professional will be read sympatheti-
cally, there must be an objection.
If an objection is raised it may be necessary for the
veteran to provide information to overcome the presump-
8 ARNOLD PARKS v. SHINSEKI
tion. In this regard, Mr. Parks reads the court below and
statements in Cox to support the notion that a nurse
practitioner is always qualified to give competent medical
opinions. This court does not endorse that reading of Cox.
The regulations may require inquiry beyond the posses-
sion of a particular degree, or the lack of one. Section
3.159(a)(1) requires that to be competent, a medical
opinion must be “provided by a person who is qualified
through education, training or experience” to offer one.
Further, the VA’s stated purpose when adopting the
regulation confirms what common sense and the plain
language requires: competency requires some nexus
between qualification and opinion. Dep’t. of Veterans
Affairs Proposed Rules, 66 FR 17834-01, 17835 (Apr. 4,
2001) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992)
(stating that “opinions of witnesses skilled in that particu-
lar science, art or trade to which the question relates are
admissible in evidence”), overruled on other grounds by
King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012)).
Given that one part of the presumption of regularity is
that the person selected by the VA is qualified by train-
ing, education, or experience in the particular field, the
presumption can be overcome by showing the lack of those
presumed qualifications. Thus, while the presumption is
that a nurse practitioner selected by the VA is qualified to
perform as designated, the presumption can be overcome.
Thus, this court offers no opinion on whether an ARNP
experienced only in family medicine may be qualified to
opine on causes of diabetes.
But Mr. Parks never raised any concern over Ms. Lar-
son’s qualifications or those of an ARNP generally, let
alone sought to overcome the presumption until his
appeal to the Veterans Court. Instead, at the Board and
with the assistance of a non-lawyer from the DAV, Mr.
Parks had asserted only that the report prepared by Ms.
Larson should have been excluded because, contrary to
ARNOLD PARKS v. SHINSEKI 9
VA operating procedures, a physician had not signed it.
A. 40.
To justify raising this argument only now, Mr. Parks
emphasizes that the record must be construed sympathet-
ically in favor of pro se veterans, citing Comer v. Peake,
552 F.3d 1363, 1369 (Fed. Cir. 2009). This argument
misapprehends the applicability of Comer.
The Vietnam veteran in Comer initially filed a disabil-
ity claim in 1988. He was found thirty percent disabled,
but was not awarded any benefits. Acting pro se, he
repeatedly asserted in subsequent proceedings in the RO
and before the Board that he was entitled to a higher
rating and to benefits. Any claim to a higher rating is
construed as a claim for the highest possible rating.
Comer, 552 F.3d at 1367 n.1. He was awarded benefits
and his rating was repeatedly increased, eventually to
seventy percent, though neither was made effective back
to 1988. On appeal, the Veterans Court held that Comer
had waived any argument that he was entitled to benefits
effective as of 1988. This court reversed, holding that
because he had argued that he was entitled to an earlier
effective date at a higher rating, a sympathetic reading of
the record showed that he had asserted he was entitled to
TDIU benefits as of 1988. Id. at 1366-67.
In contrast, Mr. Parks never suggested that there was
anything improper with the VA’s selection of an ARNP,
let alone raised objection to Ms. Larson specifically. Had
Mr. Parks raised some objection—had he suggested that
no nurse practitioner was competent to provide the opin-
ion, or that Ms. Larson herself was in some way incompe-
tent—then Comer would apply. But it is one thing to read
a record sympathetically, as required by Comer; it is quite
another to read into the record an argument that had
never been made.
Finally, Mr. Parks argues that the Veterans Court
abused its discretion in not remanding the case to consid-
10 ARNOLD PARKS v. SHINSEKI
er his competency objection. On this record, the Veterans
Court did not abuse its discretion in deciding not to
remand.
VI.
This court has considered Mr. Parks’ other arguments
and finds them unpersuasive. Accordingly, the judgment
of the Veterans Court is affirmed.
AFFIRMED