Arnold Parks v. Shinseki
2013 U.S. App. LEXIS 9028
| Fed. Cir. | 2013Background
- Mr. Parks served in Vietnam (1964–1966) and participated in Project 112/SHAD, exposing him to three chemical agents.
- He sought service connection for diabetes type II with neuropathy and a heart condition in 2000 and 2002; RO denied, Board affirmed.
- In 2004, VA issued directives to evaluate SHAD veterans and provide care for illnesses possibly related to participation.
- The VA later identified Parks’s exposures and arranged for additional medical examinations under a Board remand (2007).
- In May 2008, ARNP Ms. Larson concluded Parks’s claimed conditions were less likely than not related to chemical exposures; RO relied on her report.
- Parks appealed, challenging whether Larson’s report could constitute competent medical evidence and whether the VA appropriately presumes competence of its examiners; the Veterans Court held the nurse practitioner could provide competent evidence under Cox and Parks’ challenges were raised too late; this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is a nurse practitioner’s opinion competent medical evidence under §3.159(a)(1)? | Parks: Larson’s credentialing may not satisfy competency requirements. | Government: Cox allows non-physician examiners to supply competent evidence. | Jurisdiction acknowledged; the court did not reverse on this issue; issue treated as waived |
| Did Parks waive his challenge to the VA-selected examiner's qualifications? | Parks asserted the defect at Board/Veterans Court level; later reliance on it. | Presumption of regularity requires no immediate challenge; waiver applies unless raised. | Parks’ objection was waived |
| Was remand for competency objections appropriate or necessary? | Parks sought remand for competency review of Larson’s qualifications. | No remand required given the waiver and regulatory framework | No abuse of discretion; remand not required |
Key Cases Cited
- Comer v. Peake, 552 F.3d 1363 (Fed. Cir. 2009) (sympathetic readings of pro se records; not a substitute for raising arguments)
- Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010) (veteran must show lack of qualifications to overcome presumption)
- Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (presumption of regularity for VA examiner competence; but rebuttable)
- Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (presumption of regularity for public officers)
- Cox v. Nicholson, 20 Vet. App. 563 (Vet. App. 2007) (examinations by non-physicians can satisfy competent medical evidence)
- Espiritu v. Derwinski, 2 Vet. App. 492 (Vet. App. 1992) (basis for admissibility of expert opinions; later superseded in part)
- Miley v. Principi, 366 F.3d 1343 (Fed. Cir. 2004) (context on regularity and evidence requirements)
- Butler v. Principi, 244 F.3d 1337 (Fed. Cir. 2001) (regularity presumption and its scope)
- Morgan v. Shinseki, not cited in opinion () (not applicable)