Fears v. Wilkie

Case: 20-1633 Document: 53 Page: 1 Filed: 01/11/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STENSON FEARS, JR.,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1633
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-2345, Judge Michael P. Allen,
Judge Joseph L. Toth, Senior Judge Mary J. Schoelen.
______________________
Decided: January 11, 2021
______________________
BRIAN KEITH LEWIS, Francis White Law, PLLC, Wood-
bury, MN, for claimant-appellant.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD,
ROBERT EDWARD KIRSCHMAN, JR.; SAMANTHA ANN
Case: 20-1633 Document: 53 Page: 2 Filed: 01/11/2021
2 FEARS v. WILKIE
SYVERSON, Y. KEN LEE, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
Before DYK, REYNA, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
Stenson Fears, Jr., submitted a claim for disability
benefits based on hepatitis B, alleging that the disease was
connected to his service in the United States Navy. The
Department of Veterans Affairs ordered, and Mr. Fears re-
ceived, a medical examination from Dr. Gary Wilhelm. Dr.
Wilhelm opined that Mr. Fears’s hepatitis B was less likely
than not connected to his Navy service. Relying on Dr. Wil-
helm’s opinion, the Board of Veterans’ Appeals denied Mr.
Fears’s claim for benefits. Mr. Fears appealed to the Court
of Appeals for Veterans Claims (Veterans Court), arguing
that Dr. Wilhelm was not competent to opine on the cause
of Mr. Fears’s hepatitis B. The Veterans Court affirmed
the Board’s denial of Mr. Fears’s benefits claim because Mr.
Fears had not timely challenged Dr. Wilhelm’s competency.
We affirm.
I
A
Mr. Fears served in the U.S. Navy from February 1976
to January 1980. During his service, there was a hepatitis
outbreak at his base. Because of his possible exposure, Mr.
Fears received an injection of gamma globulin, meant to
help him avoid getting hepatitis. In August 1976, Mr.
Fears was examined and was tested for hepatitis B. He
had no symptoms of hepatitis B, and his test results
showed no residual hepatitis B.
In December 2009, Mr. Fears submitted a claim for
benefits based on hepatitis, bilateral hearing loss, tinnitus,
and a bilateral shin condition, which he alleged was
Case: 20-1633 Document: 53 Page: 3 Filed: 01/11/2021
FEARS v. WILKIE 3
connected to his Navy service. Only the claim for benefits
based on hepatitis B is relevant on appeal.
In January 2011, Mr. Fears received a VA medical ex-
amination, and the examiner diagnosed him with hepatitis
B but concluded that a connection to Mr. Fears’s Navy ser-
vice was less than 50% likely. In May 2014, the Board
found the January 2011 medical opinion “inadequate” be-
cause the rationale for finding service connection unlikely
was “ambiguous.” J.A. 53. The Board accordingly re-
manded Mr. Fears’s case for a new medical opinion “by an
appropriate examiner (preferably a hepatologist)” to “clar-
ify the etiology of the Veteran’s currently diagnosed hepa-
titis B.” J.A. 54.
In July 2014, Mr. Fears received a new medical exam-
ination from Dr. Wilhelm, who was not a hepatologist. He
opined that “[t]he etiology of the Veteran’s currently diag-
nosed [h]epatitis B is most likely due to his documented
post-service drug use from 1986 to 1991.” J.A. 45. Relying
on a journal article, Dr. Wilhelm stated that “[d]rug use is
a major risk factor for hepatitis B (HBV) virus transmis-
sion” and explained how Mr. Fears’s post-service drug use
was more likely the cause of his hepatitis B than other
risky activity. J.A. 45. At bottom, Dr. Wilhelm concluded
that Mr. Fears’s hepatitis B “is less likely than not related
to his military service.” J.A. 45.
The next month, more service-treatment records were
added to Mr. Fears’s file. J.A. 26. After considering those
records, Dr. Wilhelm provided an addendum opinion in De-
cember 2014. He maintained the same conclusion while
explaining how the records supported that conclusion. J.A.
30 (“It confirms that the Veteran was asymptomatic at the
time of the exam in August 1976. If he were ill with hepa-
titis B, he would be expected to show symptoms. The find-
ings at the time of the blood donation, likely occurred due
to the gamma globulin shot given as prophylaxis to avoid
getting hepatitis when he was in San Diego as a recruit.
Case: 20-1633 Document: 53 Page: 4 Filed: 01/11/2021
4 FEARS v. WILKIE
He had a normal abdominal exam without pain o[r] palpa-
tion of his liver, and his liver was of normal size. The im-
pression of ‘hepatitis by history’ refers to the statements by
the Veteran and not a formal diagnosis of hepatitis. Re-
view of STRs does not provide documentation to corrobo-
rate this claim.”).
On April 6, 2017, the Board denied Mr. Fears’s claim
for benefits. J.A. 32. The Board relied on Dr. Wilhelm’s
July 2014 and December 2014 medical opinions, finding
them “adequate and highly probative.” J.A. 30. The Board
also found that the regional office had “substantially com-
plied” with its May 2014 remand order that required “an
appropriate examiner (preferably a hepatologist)” provide
a new medical opinion—even though Dr. Wilhelm was not
a hepatologist—because Dr. Wilhelm was “a physician with
a Master of Public Health degree.” J.A. 26, 30, 54.
B
Mr. Fears appealed to the Veterans Court, where, for
the first time, he challenged the competency of Dr. Wil-
helm. The Veterans Court rejected that challenge and af-
firmed the Board’s decision. Fears v. Wilkie, 31 Vet. App.
308, 310–11 (2019). It started from the premise that Fed-
eral Circuit precedent generally “requires veterans to ob-
ject to an examiner’s qualifications” at the Board. Id. at
318. Because Mr. Fears did not raise the competency issue
at the Board, the court emphasized that Mr. Fears could
prevail “only if” his case came within the exception (to the
general rule) identified in Wise v. Shinseki, 26 Vet. App.
517 (2014). Fears, 31 Vet. App. at 319. The “Wise excep-
tion” to the rule requiring the veteran to challenge compe-
tency before the Board, the Veterans Court stated, applies
when the record before the Board itself sufficiently sug-
gests a competency problem because that record “inde-
pendently demonstrate[s] an irregularity in the process of
selecting the examiner.” Id. (internal quotation marks
Case: 20-1633 Document: 53 Page: 5 Filed: 01/11/2021
FEARS v. WILKIE 5
omitted); see also id. at 318 (“[T]he Board cannot ignore fa-
cially obvious issues of competence.”).
The record in Mr. Fears’s case was not such a record.
For his Wise exception argument, Mr. Fears relied entirely
on a past lawsuit and certain news articles involving Dr.
Wilhelm that he raised in his briefing to the Veterans
Court. But the Veterans Court—while seeming first to con-
clude on the merits that these materials did not come
within the Wise exception, id. at 318 (stating that these
materials “are not close enough” to come within the Wise
exception)—ruled that it could not reach the question
whether these materials would excuse Mr. Fears’s failure
to raise competency to the Board because the materials
were not part of the record. Id. Stating that Mr. Fears
made “no argument about why these documents could con-
structively be considered a part of the administrative rec-
ord,” id., the Board ruled that the documents “were neither
actually nor constructively before the Board,” id. at 319.
Although VA had “recognized at oral argument” that “if
[Mr. Fears] had properly submitted these documents to the
Board, the Board likely would have been required to dis-
cuss them, even if [Mr. Fears] had not expressly raised the
argument,” the Veterans Court concluded that, because the
documents on which Mr. Fears relied were not part of the
“record on appeal,” Mr. Fears’s competency argument
“ha[d] no merit.” Id. at 318–19.
Mr. Fears timely appealed. We have jurisdiction to
consider legal issues raised by the Veterans Court’s deci-
sion. See 38 U.S.C. § 7292(d)(1). In a case like this, not
involving a constitutional issue, we lack jurisdiction to re-
view “a challenge to a factual determination” or “a chal-
lenge to a law or regulation as applied to the facts of a
particular case.” Id. § 7292(d)(2).
II
Mr. Fears challenges the Veterans Court’s determina-
tions involving Dr. Wilhelm’s competency. We recently
Case: 20-1633 Document: 53 Page: 6 Filed: 01/11/2021
6 FEARS v. WILKIE
confirmed the existence of a general requirement that, to
challenge a VA medical examiner’s competency, the vet-
eran must raise the issue before the Board. Francway v.
Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). We noted, without
addressing, the Veterans Court’s recognition in Wise of an
exception to the general requirement when “the record in-
dependently demonstrates an irregularity in the process of
selecting the examiner.” Id. at 1308 n.2. Here, the Veter-
ans Court described the Wise exception as applying “where
there are facially obvious issues of competence,” Fears, 31
Vet. App. at 316, a statement that VA does not dispute.
Mr. Fears makes essentially two arguments in his
opening brief for why his competency challenge was timely.
Mr. Fears’s first argument, the only one directed to the
“record on appeal” ruling of the Veterans Court, depends
on Mr. Fears’s desire to invoke issue preclusion (collateral
estoppel). Mr. Fears’s second argument seeks an exception
from timely-presentation requirements for veterans who
were not represented by an attorney before the Board. We
decline to disturb the Veterans Court’s judgment on either
ground.
A
Mr. Fears argues that as a matter of law he was enti-
tled to have the Veterans Court consider his newly raised
challenge to competency based on issue preclusion, stress-
ing that issue preclusion is a legal issue. See Levi Strauss
& Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367,
1371 (Fed. Cir. 2013) (noting that issue preclusion is a legal
question). But we need not decide when, if ever, the Veter-
ans Court would be obliged to entertain an issue-preclusion
argument concerning competency when no competency is-
sue had previously been raised (and the earlier adjudica-
tion took place long before the Board proceedings). Here,
the issue-preclusion contention is patently meritless as a
matter of law. In these circumstances, even if the Veterans
Court committed an error in declining to consider issue
Case: 20-1633 Document: 53 Page: 7 Filed: 01/11/2021
FEARS v. WILKIE 7
preclusion (which we do not decide or suggest), the error is
harmless, so Mr. Fears could not benefit from our deciding
that the Veterans Court should have decided issue preclu-
sion. See Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed.
Cir. 2011) (explaining that this court may decide harmless-
ness of any Veterans Court error if harmlessness involves
only a legal determination); Vazquez-Claudio v. Shinseki,
713 F.3d 112, 118 (Fed. Cir. 2013). 1
A basic requirement of issue preclusion is that the is-
sue decided in the earlier action must be the same as the
issue in the later action. Biafora v. United States, 773 F.3d
1326, 1333 (Fed. Cir. 2014). That requirement is not met
here. The prior litigation, which involved the Army’s ter-
mination of Dr. Wilhelm’s participation in a residency pro-
gram for orthopedic medicine in 1996, Wilhelm v. Caldera,
90 F. Supp. 2d 3 (D.D.C. 2000), aff’d, 6 F. App’x 3 (D.C. Cir.
2001) (affirming “essentially for the reasons stated in the
district court’s memorandum opinion”), did not involve the
same issue as whether Dr. Wilhelm was competent, almost
two decades later, to opine on the cause of Mr. Fears’s hep-
atitis B.
1 The Veterans Court ruled that it could not consider
the materials from Dr. Wilhelm’s prior legal action, or the
articles that Mr. Fears submitted to that court (but does
not invoke in this court), because they were not part of the
“record on appeal.” Fears, 31 Vet. App. at 318. Mr. Fears’s
opening brief challenged that conclusion based only on his
contention that he was entitled to argue issue preclusion.
See Fears Opening Br. at 3, 11–23. To the extent that Mr.
Fears’s reply brief makes an argument about the record on
appeal not tied to issue preclusion, which is unclear, the
argument is too late. See SmithKline Beecham Corp. v.
Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006) (“Our
law is well established that arguments not raised in the
opening brief are waived.”).
Case: 20-1633 Document: 53 Page: 8 Filed: 01/11/2021
8 FEARS v. WILKIE
In B & B Hardware, Inc. v. Hargis Industries, Inc., the
Supreme Court endorsed the principle that “‘[i]ssues are
not identical if the second action involves application of a
different legal standard, even though the factual setting of
both suits may be the same.’” 575 U.S. 138, 154 (2015)
(quoting 18 Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure § 4417, 449 (2d ed. 2002)). Although
“[m]inor variations in the application of what is in essence
the same legal standard do not defeat preclusion,” when
the analysis is “significantly different,” the issues are dif-
ferent. Smith v. Bayer Corp., 564 U.S. 299, 312 n.9 (2011)
(internal quotation marks and citation omitted). That is so
here.
Wilhelm v. Caldera, a case filed in 1998, involved Dr.
Wilhelm’s “action for declaratory judgment . . . to overturn
the Secretary of the Army’s [Louis B. Caldera’s] decision
[in 1996] to terminate [Dr. Wilhelm] from his graduate
medical training as an orthopedic surgery resident.” 90 F.
Supp. 2d at 5. Specifically, Dr. Wilhelm made two claims
under the Administrative Procedure Act: (1) “the decision
to terminate him from his graduate medical training was
arbitrary and capricious, an abuse of discretion, and other-
wise not in accordance with law and military regulation”;
and (2) he had a “due process right to practice medicine in
the U.S. Army.” Id. The district court granted Secretary
Caldera’s motion for summary judgment rejecting Dr. Wil-
helm’s claims. Id. at 9.
As to the first claim, the court explained that its review
was “limited to determining whether there has been sub-
stantial compliance with statutes and regulations, whether
the agency acted arbitrarily and capriciously, and whether
there is substantial evidence to support the agency’s deci-
sion.” Id. at 7. Under that standard of review, the court
held that Dr. Wilhelm’s residency termination passed mus-
ter because the relevant regulations permitted the Army to
“terminate a trainee for failure to correct necessary defi-
ciencies while on probation” and because “[t]he records
Case: 20-1633 Document: 53 Page: 9 Filed: 01/11/2021
FEARS v. WILKIE 9
show[] numerous poor performance evaluations and re-
ports from faculty that [Dr. Wilhelm] was not ‘making sig-
nificant improvement’ during his initial probation period of
six months.” Id. at 7–8. As to the second (due-process)
claim, the court concluded that Dr. Wilhelm “ha[d] no due
process right to practice medicine in the U.S. Army” and
“suffered no loss of property because there is no protected
property interest in continued military service.” Id. at 8–
9.
By contrast, the issue now raised by Mr. Fears, for
which he seeks preclusion, is whether Dr. Wilhelm was
competent, under 38 C.F.R. § 3.159(a)(1), to opine in 2014
on the cause of Mr. Fears’s hepatitis B. That regulation
states in relevant part: “Competent medical evidence
means evidence provided by a person who is qualified
through education, training, or experience to offer medical
diagnoses, statements, or opinions.” Determining whether
Dr. Wilhelm in 2014 was “qualified through education,
training, or experience to offer medical diagnoses, state-
ments, or opinions” on the cause of hepatitis B is signifi-
cantly different from determining whether, eighteen years
earlier, the Army could properly find deficiencies that sup-
ported its termination of Dr. Wilhelm from an orthopedic-
medicine program or whether Dr. Wilhelm had a due-pro-
cess right to continue in the program. The issues are not
the same, and for at least that reason, issue preclusion
could not apply. 2
2 Mr. Fears seeks en banc review of whether issue
preclusion (based on an old adjudication) presents a special
case for the Veterans Court’s restricting its rulings to the
record before the Board or excusing failure to raise a com-
petency issue before the Board. See Fears Opening Br. at
10, 20–21. Because we reject issue preclusion on the mer-
its, we do not decide the record-scope or timely-presenta-
tion questions involving issue preclusion. For that reason
Case: 20-1633 Document: 53 Page: 10 Filed: 01/11/2021
10 FEARS v. WILKIE
B
Mr. Fears also argues that as a matter of law the gen-
eral requirement to raise a competency challenge before
the Board should not apply to veterans who were pro se or
represented by a non-lawyer before the Board. See Fears
Opening Br. at 23–28. We reject that argument. Although
filings in such situations may be liberally and sympatheti-
cally read in the course of determining whether an issue
has actually been raised, we have rejected similar sugges-
tions to simply excuse compliance with requirements for
raising an issue. See, e.g., Scott v. McDonald, 789 F.3d
1375, 1381 (Fed. Cir. 2015); Parks v. Shinseki, 716 F.3d
581, 585 (Fed. Cir. 2013); Comer v. Peake, 552 F.3d 1362,
1368 (Fed. Cir. 2009). We do so again here.
III
Mr. Fears makes other arguments that we cannot ad-
dress. We generally cannot address an argument not pre-
sented to the Veterans Court first. See Emenaker v. Peake,
551 F.3d 1332, 1337 (Fed. Cir. 2008) (“In order to present
a legal issue in a veteran’s appeal, the appellant ordinarily
must raise the issue properly before the Veterans Court;
with limited exceptions, appellate courts do not consider is-
sues that were not raised in the tribunal from which the
appeal is taken, and we have held that those general prin-
ciples of appellate practice apply in the context of appeals
from the Veterans Court.”); see also O’Brien v. Wilkie, 948
F.3d 1339, 1341 n.2 (Fed. Cir. 2020); Scott, 789 F.3d at
1379–80.
Mr. Fears presented no meaningful argument to the
Veterans Court that the general requirement that veterans
must raise a challenge to a VA medical examiner’s compe-
tence before the Board “is incompatible with” 38 C.F.R.
and others, we deny what we take to be a request for refer-
ral of this case to the full court for en banc hearing.
Case: 20-1633 Document: 53 Page: 11 Filed: 01/11/2021
FEARS v. WILKIE 11
§ 3.159. Compare Fears Opening Br. at 36–40, with Fears
v. Wilkie, No. 17-2345 (Vet. App.) (Jan. 10, 2018 opening
brief and May 3, 2018 reply brief). The lack of such an ar-
gument—for which even now Mr. Fears presents no sup-
port in the language of § 3.159—is reflected in the absence
of any interpretation of § 3.159 in the Veterans Court’s
opinion. Mr. Fears likewise did not argue that the regional
office failed to comply substantially with the Board’s re-
mand order because Dr. Wilhelm was not a hepatologist.
Fears Opening Br. at 28–36; Fears Reply Br. at 5. As the
Veterans Court wrote, Mr. Fears “did not raise the issue of
Dr. Wilhelm not being a hepatologist. Thus, we consider
that argument waived.” Fears, 31 Vet. App. at 319 n.102.
Mr. Fears does not contest the Veterans Court’s forfeiture
determination. We therefore cannot address either argu-
ment on appeal.
IV
For the foregoing reasons, we affirm the Veterans
Court.
The parties shall bear their own costs.
AFFIRMED